General Law Flashcards
What are the English Covenants of Title?
The language “English covenants of title” simply mean that the deed is conveyed in fee simple, without any encumbrances of tenancies, or liens on the property. Includes:
- Seisin – covenant that the grantor has the interest that he purported to convey
- The Right to Convey – grantor has the right, power and authority to convey the property.
- Quiet Possession – promise that a grantee will hold and enjoy the land free from any interruption, claim or demand by anybody, and that grantor would indemnify and save grantees harmless against any and every charge or encumbrance.
- Further Assurances – covenant to execute deeds or otherwise take action to perfect title if necessary.
- No Encumbrances – defined as including the existence of physical intrusions or encroachments or superior title or interest in the land held by another party.
What do minority shareholders need to prove to obtain judicial dissolution of a corporation?
(1) deadlock in the management of the corporation,
(2) oppressive or illegal conduct by the majority
(This is a factual analysis — but removing directors, firing employees, and suspending all payments of dividends without cause may qualify); OR
(3) waste of corporate assets.
When may a juror be stricken for cause?
MEMORIZE THIS: When a potential juror is related to a party, has any interest in the case being tried, or has expressed an opinion or bias in the matter, he can be stricken from the panel for cause.
It would be reversible error for a court to force a party to use one of their peremptory strikes when the juror should be stricken for cause.
When may an appellate court consider an issue raised on appeal?
Issues (“assignments of error”) raised on appeal for the first time WILL NOT be considered by the appellate court UNLESS the “ends of justice” exception applies.
In general, trial counsel must have objected to the issue, and given the trial judge a chance to rule on it, in order for that issue to be considered on appeal.
The “ends of justice” exception is applied in extreme cases where the court must correct a grave injustice.
When should a case be dismissed for improper venue in Virginia?
Trick question: Venue is not jurisdictional in Virginia and no case shall be dismissed on that basis.
However, a party may object to venue as being improper venue.
A defendant must file an objection to venue (NOT a motion to dismiss) within 21 days of service of process upon the defendant.
Who can serve process?
Any DISINTERESTED civilian who is 18+ years old and not a party to the suit
Sheriff (or deputy sheriff) has authority to serve court process within his jurisdiction or any contiguous jurisdiction.
Who may be served with process?
If defendant is a human, then defendant at her usual place of abode
If unsuccessful because she was not there; then, at defendant’s usual place of abode, serve the papers on a member of defendant’s family, who is not a temporary sojourner.
Server must explain what the papers are about and instruct the family member to give the papers to the defendant.
If defendant is a corporation, then an officer, director or registered agent of the corporation
Virginia’s curative statute allows that if ANY of the proper parties receive process in time, it is OK.
What do you need to show in an action for detinue?
- P has a property right in the thing sought.
- P has a right to immediate possession.
- Property is capable of identification
- Property has some value.
- D has had possession sometime prior to institution of suit.
Purchasing the property in good faith is not a good defense where the property is stolen property
Detinue can be filed in the normal manner where the court will first hold a trial on the merits, or under certain circumstances, can be brought seeking pre-trial seizure.
If pre-trial seizure is sought, plaintiff will need to allege facts showing that one of the grounds for attachment is present.
When may a plaintiff exercise a nonsuit?
- before a motion to strike the evidence has been sustained; or
- before the case has been submitted to the jury; or
- before the action has been submitted to the court for decision
A plaintiff’s first nonsuit is by right
If a plaintiff wants to take a second nonsuit, she can only do so at the discretion of the court after reasonable notice is given to all parties.
If the party taking the nonsuit does so within seven days of trial, the Court has the discretion to order the nonsuiting party to pay witness fees and travels costs (NOT defendant’s attorneys’ fees) incurred in anticipation of the pending trial.
What are the requirements for a demurrer?
Must be filed:
- In writing,
- within 21 days of service of process (unless the trial judge grants leave for additional time within which to file it).
- must state the SPECIFIC grounds for demurrer (not merely failure to plead a cause of action)
In consideration of the demurrer, the factual allegations in the complaint are assumed to be true.
When ruling on a demurrer, the trial judge is limited to reviewing the contents of the face of the pleading that the demurrer is filed against.
The court cannot hear evidence in ruling on a demurrer.
When may a trial court grant a motion to file late pleadings?
The decision whether to grant leave to file late pleadings is a discretionary call by the trial court and the trial court’s ruling will not be disturbed unless the SCV finds the trial court abused its discretion.
Applicant should discuss whether there was good cause shown to support the motion for leave to file late pleadings:
[1] why was the defendant late in appearing;
[2] any prejudice to the opposing side in permitting late filing;
[3] good faith of the moving party;
[4] the existence of a substantial defense [ie contributory negligence];
[5] promptness of the moving party.
Good cause standard under this Rule is a liberal standard and that the policy of the Rule favors allowing leave.
Court may order payment of any extra costs and fees incurred by opposing party as a result of the delay.
When may a party add new defendants to a case?
Under the Virginia Code, new parties may be added to a case by order of the court at any time as the ends of justice may require
Plaintiff must seek leave of court to file an amended complaint adding the new defendants.
If the plaintiff wants to change defendants, when will doing so toll the SOL?
- Nexus: The cause of action asserted in the amended complaint arose out of the conduct, transaction, or occurrence set forth in the initial pleading.
- Awareness: The facts reveal that before the period ran, the nonmoving party was aware of the pendency of the action;
- Fairness: The nonmoving party will not be prejudiced in maintaining a defense;
What do you need to prove to get a new trial on the grounds of after-discovered evidence?
[a] the evidence was discovered after trial; and
[b] the evidence is material and on another trial should produce opposite results on the merits; and
[c] the evidence is not cumulative, corroborative or collateral; and
[d] the evidence could not have been discovered with reasonable diligence before trial; and
[e] the evidence can be produced at a new trial.
What should the court consider when deciding on a temporary injunction?
(a) Is there an adequate remedy at law?;
(b) does the plaintiff have a likelihood of success at trial?;
(c) is the harm to the plaintiff if the injunction is not granted greater than the harm to the defendant if the injunction is granted?
(d) does the public interest weigh in favor or against an injunction?
Bonus: Is the plaintiff prepared to post the injunction bond, protecting the defendant from damages suffered, if after hearing the evidence from all sides, the judge decides the injunction should not have been granted?
What are the requirements for a valid will?
- Testator at least 18 years old
- In writing
- Signed by testator
- Testator must be competent
- Voluntariness/no evidence of coercion
- Minimum of two witnesses
Bonus: Self-proving affidavit recommended
Bonus 2: Holographic wills are an exception
What are the requirements for a valid holographic will?
- Entirely in testator’s handwriting
- Signed by testator
- Testamentary intent
Testamentary intent must be found on the face of the will, not from extrinsic evidence.
Formal language, e.g. “my last will and testament,” is helpful but not required
What is a transfer on death deed?
Allows a real property owner to designate a beneficiary to receive title to certain residential real property on the owner’s death without a probate proceeding or trust administration.
Requirements:
1. Must state that transfer to the designated beneficiary is to occur at the transferor’s death;
- Must be recorded before the transferor’s death in the circuit court where the property is located; and
- Must not have ever been revoked.
TODD will supersede the provision of a will related to the specific real property.
If, after making a TODD, the transferor is divorced, the divorce revokes any transfer to a former spouse as designated beneficiary unless the transfer on death deed expressly provides otherwise.
If a claim for an elective share is made, the surviving spouse is entitled to:
(i)one-third of the decedent’s augmented estate if the decedent left surviving children or their descendants;or
(ii) one-half of the decedent’s augmented estate if the decedent left no surviving children or their descendants.
The augmented estate isthe value of a decedent’s estate used when the surviving spouse chooses to take anelective share, rather than what was left by will.
What entitlements take priority over all other claims (except the cost of administration)?
- Family Allowance – Surviving spouse and minor children whom the decedent was obligated to support are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration
The family allowance may be paid as a lump sum not to exceed $24,000, or in periodic installments not to exceed $2,000 per month for one year.
- Exempt Personal Property – The surviving spouse of a decedent who was domiciled in the Commonwealth is entitled from the estate to value not exceeding $20,000 in excess of any security interests therein in household furniture, automobiles, furnishings, appliances, and personal effects.
If there is no surviving spouse, the minor children of the decedent are entitled in equal shares to such property of the same value.
- Homestead Allowance – A surviving spouse of a decedent who was domiciled in the Commonwealth is entitled to a homestead allowance of $20,000.
If there is no surviving spouse, each minor child of the decedent is entitled to a homestead allowance amounting to $20,000, divided by the number of minor children.
- Non-Probate Assets – Pass to the contractual beneficiary (E.g. life insurance policies).
What does the Virginia Anti-Lapse statute do?
The Virginia Anti-Lapse statute will save a gift to a beneficiary who predeceases the testator ONLY IF the beneficiary was a grandparent or the descent of a grandparent of the beneficiary
What does the Simultaneous Death Act do?
If two or more people die within 120 hours of one another, and nowillor other document provides for this situation explicitly, each is considered to have predeceased the others. That means if spouses die within 120 hours, their property does not pass from one spouse to the other; it goes to the next beneficiaries in line, or by intestate succession
What is a “good” under UCC article 2?
The definition of goods in the UCC establishes the key criterion as mobility at the time of identification to the contract for sale.
What are the two major exceptions to the statute of frauds re: the sale of goods?
An oral contract for the sale of goods is enforceable to the extent that the goods have been received and accepted.
An oral contract for the sale of goods is enforceable if the goods are specially ordered by the buyer, cannot be resold by the seller in the ordinary course of its business, and the seller has made a substantial beginning of performance
To prevail on a breach of warranty action, plaintiff has the burden of proving:
- Breach
- That the breach was a proximate cause of the loss
- Damages, i.e., the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted
Plaintiff must also NOTIFY defendant of the breach
What do I need to know about the Implied Warranty of Merchantability?
Applies only to goods sold BY MERCHANTS that deal in “goods of the kind”
Is breached when goods are not fit for their ORDINARY PURPOSE
Can be disclaimed or modified in a contract – but ONLY if that modification is CONSPICUOUS/noticeable by “a reasonable person against which it is to operate” (e.g. by saying “as is” or “with all faults”)
Remedies: In Virginia, the non-breaching party is entitled to expectation damages representing the difference between the value of the goods as warranted and as accepted, plus incidental and consequential damages
What do I need to know about the Implied Warranty of Fitness for a Particular Purpose?
Requires proof that:
- the seller knows the buyer’s particular intended purpose; and
- that the buyer relied on the seller to furnish suitable goods
Can be disclaimed or modified
Applies to leases
Normally, a buyer is entitled to revoke acceptance if:
- the nonconformity substantially impairs the value of the goods,
- acceptance was reasonably induced by the difficulty of discovering the nonconformity before acceptance or by the seller’s assurances to cure, and
- the buyer gives notice of revocation within a reasonable time after discovering the nonconformity and before any substantial change not caused by existing defects
Significant and avoidable use of the goods after notice of revocation is an exercise of ownership, which deprives the buyer of the power to revoke.
What is required for the imposition of punitive damages?
Willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others
A court may grant specific performance in equity if:
- the contract at issue is enforceable;
- all conditions precedent to performance have been satisfied;
- the contractual terms at issue are sufficiently definite to be enforced by the court;
- the defendant is able to perform or the performance can be abated; and
- it would be fair (equitable) to specifically enforce the contract
A court of equity will NOT decree specific performance of the agreement where it would entail great hardship, and the hardship was due, in some measure, at least, to the conduct of the other party
The UCC has relaxed the requirement that goods must be unique for a court to grant specific performance for a contract of sale.
Where is a will probated?
A will is probated in the Circuit Court that sits within the city or county where the decedent had a known place of residence
There is a rebuttable presumption that moving into a nursing home does not change the place of residence.
What controls a contract to make a will?
A contract to make a will is controlled by the same rules and principles and is enforceable as other contracts
The available remedy for breach of this type of contract is Specific Performance
The terms of the will control unless the contract says something different from that.
What is required for a valid will?
It must be in writing and signed by the testator.
The testator must sign or acknowledge the will int he presence of two competent witnesses, who are present together at the same time.
The two witnesses must “subscribe the will in the presence of the testator”.
What is needed for probate in the absence of a self-proving affidavit?
If there is no self-proving affidavit, the proponents of the will need to present testimony verifying the authenticity of the signatures and establishing the requisites for due execution.
The bank officers may also need to testify as to the testator’s capacity and intent.
When may a buyer reject a late shipment in an installment contract?
Buyer can reject late-delivered goods only if the late delivery “substantially impairs” the value of the installment
Rejection must be within a reasonable time after delivery and with seasonable notice
If the lateness is REALLY significant, buyer would also have the power to cancel the complete contract even as to the goods that have not yet been delivered
Buyer is also entitled to sue for damages with respect to any rejected goods; the measure of damages would be the difference between the market value of the goods and the contract price
How does the UCC treat “terms of art”?
There are “terms of art” used in contracts for the sale of goods, and they are enforceable where the meaning of the term can be found in a usage of trade
What is an installment contract?
An installment contract authorizes the delivery of items in separate lots over time.
Is a buyer who accepted nonconforming goods still entitled to damages?
Yes. A buyer that has accepted non-conforming goods may keep the goods and recover damages “for any loss” resulting from the breach, including lost profits.
What is a criminal conspiracy?
A criminal conspiracy is an agreement between two or more persons by concerted action to commit a criminal offense.
There is no “overt act” requirement in Virginia. The conspiracy is complete when the agreement is made; no further act is required to effect it.
What do you need to do to withdraw from a criminal conspiracy, and what effect will it have?
One can effectively withdraw from conspiracy by INFORMING the other co-conspirators that you would no longer be involved in the plan, a position which the others must RATIFY.
Subsequent withdrawal is no defense to the conspiracy charge because the conspiracy crime was already complete.
BUT by making an effective withdrawal, one is not liable for any subsequent crime committed in furtherance of the conspiracy.
What is the test for an attempt crime?
One who intends to commit a crime and commits a DIRECT, but INEFFECTUAL act towards commission of the crime, has committed the crime of an attempt.
No Virginia case recognizes abandonment as a defense to the crime of attempt
What is robbery?
Robbery is the taking, with the intent to deprive the owner or custodian, permanently, of personal property, from his person or in his presence, against his will, by force, threat or intimidation.
What is abduction?
Abduction occurs when a person:
1) by force or intimidation
2) seizes, takes, transports or detains another person, with
3) intent to deprive that person of liberty
What is embezzlement?
The prosecution must prove:
- that defendant was in the employ of the owner,
- that he was authorized to have custody of the money, and
- that he wrongfully and fraudulently took the money for his own use with the intent to permanently deprive the owner thereof
Embezzlement of property worth more than $500 makes it a felony
What is the crime of possession?
The prosecution must prove that the defendant:
- has actual or constructive possession of the contraband, with knowledge of its character; and
- exercises dominion and control over it.
Mere proximity to the contraband is not enough to raise a presumption of possession, nor is possession of the premises upon which the contraband is found.
BUT possession does not require active, physical possession; it is sufficient if the defendant held such dominion and control over the contraband such that he had constructive possession of it.
How does Virginia define first degree murder?
“Murder, other than capital murder, by poison, lying in wait, imprisonment, starving, or by any willful, deliberate, and premeditated killing, or in the commission of, or attempt to commit, arson, rape, forcible sodomy, inanimate or animate object sexual penetration, robbery, burglary or abduction . .”
How does Virginia define voluntary manslaughter?
Voluntary manslaughter is a killing done in the heat of passion or upon a sudden provocation.
The heat of passion element is satisfied if the defendant is adequately provoked and does not have time to cool down after adequate provocation.
When may the court direct that an accused be tried at one time for all offenses then pending against him?
If justice does not require separate trials AND
(I) the offenses are based on the same act or transaction, or on two or more acts or transactions that are connected or constitute parts of a common scheme or plan.
(ii) the accused and the Commonwealth’s attorney consent thereto.
Justice MAY require separate trials because trying the offenses together may create “spill-over” prejudice, since the jury may conclude that the defendant is guilty of one of the crimes simply because they have come to believe he is guilty of the other crime.
How does Virginia treat self defense?
Proportionate force: In Virginia, a person is only allowed to use the amount of force necessary to repel the force used against him.
No duty to retreat: In Virginia, the law does not necessarily require a person to retreat prior to using force, or even deadly force, when he is confronted with an aggressor, provided the other elements of the defense are met.
Castle doctrine: Virginia case law does support a version of the “castle doctrine” which allows deadly force to prevent an entry into a dwelling where a person reasonably believes the intruder will commit great bodily injury or death against him.
When may police search a vehicle?
In order for police to make an investigatory stop, they must articulate specific facts underlying the suspicion of criminal conduct, and must have more than an “unparticularized hunch” that criminal activity is afoot.
During a lawful stop of a car, the police, for self-protection, may require occupants to exit the car, and the police may detain occupants until the stop is complete.
The 4A allows a warrantless search of an automobile because vehicles are inherently movable, and subject to disappearing, provided that the officers have probable cause to believe that the vehicle contains contraband or other evidence of a crime.
What do courts consider to determine whether a defendant has a reasonable expectation of privacy in his vehicle?
Courts consider whether defendant:
Had a possessory interest in the car,
Had the right to exclude others from the car, and
Whether he took precautions to maintain privacy in the car.
A bailee of the vehicle has a reasonable expectation of privacy as to the vehicle and therefore has standing to object OR consent to its search.
What do courts consider to determine whether a defendant has a reasonable expectation of privacy in his vehicle?
Courts consider whether defendant:
Had a possessory interest in the car,
Had the right to exclude others from the car, and
Whether he took precautions to maintain privacy in the car.
A bailee of the vehicle has a reasonable expectation of privacy as to the vehicle and therefore has standing to object OR consent to its search.
What are the two types of easements recognized in Virginia?
Negative and express
How are express easements passed down?
When the servient tenement is transferred, the new owner takes subject to the easement unless the new owner is a bona fide purchaser for value with no notice of the easement.
What are negative easements, and how are they brought about?
The Supreme Court of Virginia has recognized that the owner of a tract of land can have a “negative easement” in a servient tract that allows the plaintiff to demand the owner of the servient tract to refrain from specific uses of the land – e.g. not building a structure more than one story high or not blocking a mountain view by constructing a fence.
Representations and inducements to a purchaser of the property may give rise to a negative easement.
Where a grantor conveys land and the deed says it’s “bounded by a road or street,” does the grantee get a right of way?
Absolutely. The grantor implies that such way exists and that the grantee acquires the benefit of it.
What are the types of tenancies, and what are their most important characteristics?
Tenancy by the Entirety (during marriage) – neither spouse can convey or dispose of the property held as tenants by the entirety by his or her sole act. Tenancy by the entireties becomes a tenancy in common upon divorce
Joint Tenancy – like TBE, but easier to partition. ONLY if the expression “with survivorship” is used when passing down the property do the tenants get the right of survivorship as at common law
Tenancy in Common (if arose from inheritance, called “coparcenary”) – no creditor or judgment protection for tenants in common.
What does a deed need to be valid?
In order for a deed to be valid, it must:
(1) meet certain formalities;
(2) be delivered by the grantor –
Delivery can occur by various methods, including manual delivery.
(3) be accepted by the grantee –
Once acceptance occurs, title passes to the grantee.
Failure to record the deed does not invalidate it.
What does the grantor warrant with a general warranty deed?
That he, his heirs and personal representatives will forever warrant and defend such property unto the grantee, his heirs, personal representatives and assigns, against the claims and demands of all persons whomsoever.
Thus if there’s a cloud of title on the property, the seller may be liable
What is the doctrine of merger?
A previous contract is extinguished by an “instrument of higher dignity”
Therefore, if a buyer has a claim against a seller, then the basis of the claim must be based on the covenants in the deed, if any, and not on the contract itself.
However, the doctrine only applies to the subject matter specifically covered by the deed.
Contract terms COLLATERAL to title DO NOT merge into the deed.
Such agreements are considered collateral to the sale if they are:
- distinct agreements made in connection with the sale of the property,
- if they do not affect the title to the property,
- if they are not addressed in the deed, and
- if they do not conflict with the deed.
The Supreme Court of Virginia has held that the doctrine of merger is inapplicable to contract provisions unrelated to title EVEN where the parties have expressly agreed in the land sale contract that representations and warranties shall be merged into the deed.
What’s an exception to the Virginia Statute of Frauds for real estate transactions?
There is an exception to the requirement of a writing where the party seeking specific performance has partially performed.
The court should also grant specific performance where:
[1] the terms of the oral agreement were certain and definite; and
[2] the acts proved in part performance referred to, resulted from or were made in pursuance of the agreement; and
[3] refusal to order specific performance would operate as a fraud on the buyer.
What is Virginia’s recording statute?
Race-notice. Under a race-notice analysis, a subsequent purchaser or mortgagee for value without notice of a prior transfer AND who first records has priority over the earlier transferee.
