kaplan_foundation_slides_copy_20190724170158 Flashcards
Intentional Torts- Coverage Areas
AssaultBatteryFalse ImprisonmentTrespass to ChattelConversionTrespass to Land
Intentional Torts- Defenses
- Consent- Necessity- Shopkeeper’s Privilege
Torts Checkpoint Items
• What is the Cause of Action?• Prima Facie Case and Defense• Who are Your Parties?• Does the Intent Transfer?• What is the Harm?• Are Damages Needed?
Kaplan Torts Exam Approach to Each Question
Step 1- Identify the cause of actionStep 2- Look for elementsStep 3- Consider defensesStep 4- Knock out wrong answer choicesStep 5- Choose the best of what’s left
3 Types of Battery
• Defendant intends to commit an offensive or harmful contact, and an offensive or harmful contact results• Defendant intends to commit an assault, and an offensive or harmful contact results• Defendant commits an act, which he knows or should know creates a substantial certainty that a harmful or know, offensive contact will occur
Consent
• If the victim gives permission, what would otherwise be tortious is instead privileged.• An individual can convey consent expressly in words or through non verbal gestures.• An individual can imply consent when, under the circumstances, the conduct of the individual reasonably conveys consent.• Consent can also be implied by law. Generally courts recognize by law consent to emergency medical treatment by health professionals when a victim is unconscious and unable to provide consent.
Assault
• An act by the defendant creating a reasonableapprehension in plaintiff of immediate harmful oroffensive contact• Intent on the part of the defendant to bring aboutapprehension of immediate harmful or offensive contact in the plaintiff• Causation
Intentional Infliction of Emotional Distress
• Extreme and outrageous conduct• Intent by defendant that plaintiff suffer severe emotional distress, or recklessness• Causation• Damages severe emotional distress
IIED- Third Party Recovery
When the defendant causes physical harm to a third party and the plaintiff suffers emotional distress because of her relationship to the injured person:-Plaintiff must be present;-Plaintiff was a close relative to the injured person;-Defendant knew or should have known of the presence of the plaintiff and-Actual damages are required
Trespass to Chattels versus Conversion
• Trespass to chattels- defendant interferes withanother person’s lawful possession of a chattel(movable personal property).• The interference can be any physical contact with the chattel in a quantifiable way, or any dispossession by taking it, destroying it, or barring owner’s access• Conversion is a greater wrong as trespass to chattels is argued to be actionable per se.• Factors- duration, value, damage
Necessity
A defense which allows the defendant to interfere with the property interests of an innocent party in order to avoid a greater injury. The defendant is justified in her behavior because the action minimizes the overall loss.-Public necessity- Defendant injures a private property interest to protect the community. A Complete defense.-Private necessity- Defendant injures a private property interest to protect a private interest valued greater than the appropriatedor injured property. An incomplete defense. The defendant is privileged to interfere with another’s property, but is liable for the damage
Trespass to Chattels or Larceny?
• Who are the parties?• Criminal law requires an intent to permanently deprive the owner of possession• Torts law requires only and intent to take, regardless of knowledge of ownership
Intentional Entries onto the Land
• Defendant is liable for intentional entries onto the land of another• Damage to the land is not required• Mistake is no defense
Unintentional Entries onto the Land
A person is not liable for trespass for negligent or reckless entries unless he causes damage to the land.
False Imprisonment
- An act by the defendant that confines or constrains the plaintiff- To a bounded area; - Defendant intends to confine- Causation
Shopkeeper’s Privilege
if a shopkeeper reasonably believes that a theft has occurred, he is privileged to make a detention in a reasonable manner for a reasonable period of time.
Negligence - Coverage Areas
Duty, Breach, Causation, Damages Negligence Per SeRes Ipsa LoquitorStandards of CareDefensesMulti Party LiabilityyyForeseeable Intervening forces Unforeseeable Intervening forces Contributory Negligence Comparative FaultAssumption of the Risk
Torts Checkpoint Items
• Are all Elements Present?• Watch for Statutes- right type?• Reading Comprehension• Who is Responsible, and Who Else?• Where are you Procedurally?• What kind of jurisdiction are you in?• Defenses to mitigate?• Defenses to exonerate?
TORTS- Negligence and DefensesDuty
• What? -A legal requirement to act as an ordinary, prudent, reasonable person taking precaution against unreasonable risks of injury to others• To Whom? -All foreseeable plaintiffs• When? - Everyday situations -Emergency situations
Duties of Care–MBE Trespasser Unknown
No Duty to warn of dangers, but you cannot actively set harmful traps to trespassers (Spring Gun)
Duties of Care–MBE Licensee
Friend - Duty to Warn of Known Dangers
Duties of Care–MBE Invitee
Customer (Potential Customer)- Duty to Inspect, Warn and Make Safe
Negligence Per Se
Statute designed to: (1) Prevent the particular type of injury from occurring; (2) Protect the type of class of plaintiff: (3) prevent the specific conduct that caused 1 and 2
Res Ipsa Loquitur
The Accident does not normally occur absent negligence on the part of the defendant AND the instrumentality causing the accident was with the defendant’s EXCLUSIVE control
Contributory Negligence
- A negligent plaintiff is barred from recovery, even if they are 1% negligent; - Minority Rule;3- Last Clear Chance Rule–that a negligent plaintiff can still recover if he can show the defendant had the last clear chance to avoid the injury and failed to do so;4- Only use if fact patter says this is a Contributory Negligence Jurisdiction
Comparative Negligence
A negligent plaintiff’s recovery will be reduced by the percentage of his own negligence
Pure Comparative Negligence Jurisdiction
Plaintiff can recover even if the plaintiff’s negligence exceeds the defendants
Modified Comparative Negligence Jurisdiction
Plaintiff can only recover if the plaintiff’s negligence is equal to or less then the defendant’s negligence
Modified Comparative Negligence Jurisdiction 50%
Plaintiff can only recover if the plaintiff’s negligence is equal to or less then the defendant’s negligence
Modified Comparative Negligence Jurisdiction 49%
Plaintiff can NOT recover if the plaintiff’s negligence is equal to or more then the defendant’s negligence
Joint Tortfeasors
Where the combined negligent acts of two or more tortfeasors cause an indivisible injury (incapable of apportionment), each tortfeasor is held jointly and severally liable
Release
When a tortfeasor makes a pretrial agreement to pay her share of the damages awarded to the plaintiff, such settlements usually precede the court’s determination of each tortfeasor’s relative liability
What is the effect or a valid Release
The settling defendant’s percentage of fault is deducted from the damages awarded the plaintiff regardless of the actual payment made by the settling defendant
A negligent defendant will be liable for Foreseeable Intervening Causes, such as
1- Negligent Rescue2- Subsequent Medical Malpractice3- Subsequent disease 4- General Negligence5- Reasonably Foreseeable Criminal Acts in which the original tortfeasor substantial created
Unforeseenable / Superseding Causes that will relieve the original tortfeasor from subsequent liable (of the acts)
1- Acts of Good; such as lightening or floods2- Intentional torts of third parties3- Intentional crimes of third parties If unforeseeable then the defendant is not liable (superseding)
Other Torts-Coverage Area
Strict Liability 1- Strict Product Liability 2- Wild Animals 3- Ultra hazardous Activities 4- Defenses NuisanceDefamationInvasion of PrivacyMisrepresentation
Check Point Items (How to approach the MBE questions)
1- Who are the Parties? Sellers, Public Figures: Wild Animal Owners? 2- Are the elements Satisfied?3- Multiple Causes of Action?4- Defenses?5- Fault of Behalf of the Plaintiff?
Abnormally Dangerous Activities include:
1- A category of activity subject to strict liability 2- If the activity creates a risk of serious injury to the land or chattels of the plaintiff or to the plaintiff himself and the risk cannot be eliminated through the exercise of due care, and the particular activity is not generally performed in that particular physical area
Examples of Abnormally Dangerous Activities
Storage of ExplosivesFumigationCrop DustingThe Storage of Flammable LiquidsPile DrivingThe Maintenance of a Hazardous Waste Site
Wild Animals
An owner of a wild animal is strictly liable to persons who are injured by the animal
Examples of Wild Animals are
LionsTigersBearsElephantsWolvesMonkeysSharksSnakesSpiders
Strict Products Liability is
One who sells a product in a defective condition unreasonable dangerous to the use or consumer is held strictly liable for the harm or injury that is caused
Defenses to Strict Liability
Assumption of the riskAdequate WarningProduct Misuse
Products Liability Defendants are
One who sells a product in a defective condition unreasonably dangerous to the user or consumer; Defendant must be a commercial seller of such prodcuts
Misrepresentation elements are
1- False statement2- Scienter3- Intent to induce plaintiff to act 4- Justifiable reliance5- Damages
A Private Nuisance is
A disturbance that creates a substantial and unreasonable interference with the use and enjoyment of one’s property
Defamation elements
1- Defamatory Statement of fact, NOT opinion; 2- Publication to any 3rd party who reasonably understands3- Damages, General Damages presumed, Special Damages required except libel and slander per se4- Plaintiff’s Standard of proof by Public official or public figure must show/prove defendant’s Malice4- Plaintiff’s Standard of proof by Private Person is (1) matter of pubic concern then the plaintiff has to prove a negligence standard, or (2) matter of private concern you only need publication
Slander Per Se
Defamatory Statement which imputes: 1- Loathsome Disease2- Unchastity to a woman3- Improper conduct in one’s trade, business or profession4- False accusation of a crime
Invasion of Right of Privacy
1- Appropriation 2- False Light 3- Intrusion upon seclusion 4- Public Disclosure of Private Facts
Invasion of Right of Privacy–Appropriation
Is when the person name or likeness is used in a commercial advertisement without the person’s authorization
Invasion of Right of Privacy–False Light
False light privacy claims often arise under the same facts as defamation cases, and therefore not all states recognize false light actions. There is a subtle difference in the way courts view the legal theories – false light cases are about damage to a person’s personal feelings or dignity, whereas defamation is about damage to a person’s reputation
Invasion of Right of Privacy- Intrusion upon Seclusion
It consists solely of an intentional interference with his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man.
Invasion of Right of Privacy
Is an invasion of privacy, a tort based in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intrudes into his or her private affairs, discloses his or her private information, publicizes him or her in a false light, or appropriates his or her name for personal gain
Check Point Items
1- Presidential Powers in conflict with other branches 2- State and Federal Laws at Odds3- Watch for the President using some power from the constitution in an executive agreement and there being a conflict with a federal statute 4- Always make sure your plaintiff challenging a law has standing and that the issue(s) is/are ripe
Federalism - Coverage Areas
1- Federal Judicial Authority - Standing - Justiciability - Supremacy Clause - Hierarchy of Laws 2- Powers of Congress - Property Power - Tax and Spend - Commerce Clause 3- Powers of President - Executive Orders and Agreements - Commander in Chief - Clemency
Case and Controversy Requirement
Federal Court adjudication requires an actual and definite dispute between parties having adverse legal interests
Standing
Plaintiff must show a concrete personal stake in the out come. Constitutional Standard: (1) Injury in fact (i.e., economic, aesthetic, environmental, physical harm; (2) Causation / redressibility
Justiciability elements / Mnemonic is
RAMPS RipenessAdvisory Opinions MootnessPolitical Questions Standing
Justiciability Ripeness
For a case to be ripe, there must be a genuine immediate threat of harm
Justiciability Mootness
A case is MOOT unless an actual controversy exists at all stages of review, unless the injury is capable of repetition, yet evading review
Justiciability Abstention
Federal court will refuse to review a case based on an unsettled issue of state lawFederal court review is prohibited where there are pending state criminal proceedings
Presidential Powers
- Issuance of executive orders which have the binding force of law upon federal agencies - Commander in Chief - Appointment Powers - Emergency Powers- Clemency Powers
Hierarch of Laws
1- Constitution 2- Act of Congress / Treaty3- Executive Agreement - foreign policy /affairs (but subject to Congressional Acts)3- Executive Order - domestic policy4- State Law
Generally wrong answer choices on the MBE Constitutional multiple choice
1- General Welfare Clause2- Necessary and Proper Clause3- 14th Amendment Privileges and Immunities Clause4- Contracts Clause 5- Distinction between Rights and Privileges 6- 10th Amendment - Caveat NY v. US
Congressional Delegation of Power
1- Congress may delegate the task of implementing its laws to government agencies2- Allows Congress to indirectly monitor an area which it has passed laws without becoming bogged down in enforcement details: 3- Valid if: 1- Congress passes enabling legislation (state or federal) 2- Specifies the purpose, functions, and powers 3- Describes the procedures of the agency
Supremacy Clause
Superseding Doctrine: A federal law will supersede any state law in direct conflict Preemption doctrine: Any state law in an area where Congress intends to occupy the field is unconstitutional (so the states cannot create any statutes attempting to regulate the area)
To uphold a State Statute as valid is must fall in one of the following categories
1- Dormant Commerce Clause a. Non-discriminatory b. No undue burden on interstate commerce–use a balancing test 2- Police Power–health, safety, welfare, morals, aesthetics of the states citizens
State taxation towards federal government or employees
- The Federal Government is immune from state taxation - Federal employees and contractors may be taxed in a state as long as the incidence of the tax does not fall on the Federal government itself
To uphold a Federal Statute is be in one of the following categories
1- Supremacy Clause 2- Any enumerated powers of Congress under Article 1, Section 83- Federal Property Power
Con Law Approach to every MBE questions, always determine the following:
- Who is passing the law?2. What is the subject matter? 3. Match the appropriate power4. Who is affected by the law?
Property Power gives the Federal Government (Congress) the power
Congress has the power to dispose of the territory or other property belonging to the United States
Affectation Doctrine
Congress may regulate any activity which has a “substantial economic effect” on interstate commerce
Regulation of Interstate Commerce is constitutional as long as
The regulation is (1) Non Discriminatory and (2) Does not place an undue burden on Interstate Commerce
Protection of Individual Rights are
Fundamental Rights - Right to Vote - Right to Travel - Right to Privacy Equal Protection Procedural Due ProcessAdditional Individual Rights - Ex Post Facto - Bill of Attainder - Privileges and Immunities Clause of Article IV
Check point items for Individual Rights on the MBE
1- Many lesser known powers of Congress has recently been tested2- Watch out for issues touching on fundamental rights, but not impacting a fundamental right3- The Commerce Clause allows Congress to regulate even private discrimination, always a good back up to challenges against Constitutionality
State Action - Individual Rights
the State has a threshold requirement of conduct (by the government) which must be satisfied before private discrimination can be restricted
Strict Scrutiny Test defined
Strict Scrutiny is the Burden on the government to show that the statute/regulation is NECESSARY to a COMPELLING government interest
Strict Scrutiny test is applied to
1- Race2- National Origin3- Alienage 4- Fundamental Rights of Privacy - Contraception - Abortion - Marriage - Procreation - Private Education - Family Relations 5- Fundamental Right to Vote - Discrimination in voting - Reappoortionment - Switching Party Affiliation - Ballot restrictions based on “special interests” (land ownership)6- Content Specific Regulation Protected Speech - Free Exercise Methodology–Purposeful Interference by the Government
Intermediate Scrutiny Test defined
Intermediate Scrutiny is the Burden on the government to show that the regulation is SUBSTANTIALLY RELATED to an IMPORTANT GOVERNMENT INTEREST
Intermediate Scrutiny is applied to
1- Gender2- Illegitimacy
Rational Basis Scrutiny is defined
Rational Basis Scrutiny is the Burden on the plaintiff that the regulation is not rationally related to a legitimate government interest
Rational Basis Scrutiny is applied to
1- Poverty2- Necessities3- Age4- Mental Retardation5- Social and Economic Welfare Measures
If a Statute is Neutral on its Face, who has the burden
Plaintiff must show: (1) discriminatory effect, AND (2) discriminatory purpose. To raise the burden of persuasion above rational basis and shift the burden to the government
Fundamental Rights of Privacy are (Mnemonic)
CAMPERFundamental Rights of Privacy - Contraception - Abortion - Marriage - Procreation - Private Education - Family Relations
What is Substantive Due Process
A term used to classify the source from which the fundamental rights (right to vote, right to travel, right to privacy) derive.
Abortion under Casey
A state may regulate abortion provided no “undue burden” is placed on a woman’s right to obtain an abortion
Fundament Right to Vote
Apply Strict Scrutiny: - Discrimination in voting - Reappoortionment - Switching Party Affiliation - Ballot restrictions based on “special interests” (land ownership)
Non-Fundamental Voting Rights
Apply Rational Basis: -The right to be a candidate(1) payment of a filing fee(2) minimum and maximum age restrictions
Article IV Privileges and Immunities
Prevents economic discrimination by one state against citizens or residents of another state, UNLESS a substantial government interest exists
Taking (by government) defined
A regulation that denies the owner (private citizen) all reasonable economically viable use of his land constitutes a Taking
“Public Use” Requirement defined
Burden on the government to show the measure of the Taking is rationally related to any conceivable purpose To qualify as a “public purpose” the property does not have to be held out for use by the general public
Bill of Attainder is defined as
Legislative punishment of a named group or individual without judicial trial
Procedural Due Process
The procedural safeguards of notice and a hearing are available whenever there is a serious deprivation of any life, liberty, or property interest
Ex Post Facto Laws are defined as
Unconstitutional criminal laws that: (1) make criminal conduct that was not a crime when committed a crime subsequently; or (2) Decrease the amount of evidence needed to convict/change the procedure(s) for conviction after a crime has been committed
First Amendment Protection - Coverage Areas
- Free Exercise Clause - Commercial Speech - Freedom of Expression - Unprotected Speech- Freedom of Religion - Establishment Clause
Check point items on the MBE for First Amendment Protection
- Recently, many First Amendment questions dealt with religion and advertising - Many questions were crossing over between fundamental rights and first amendment issues- Make sure you know who is passing the law, what groups are being affected by the law, and the purpose of the law-many questions hinge on these distinctions
Content Specific Regulation Protected Speech test is
Apply Strict Scrutiny
Unprotected Speech includes
- Clear and Present Danger2. Defamation 3. Obscenity4. Child Pornography5. Fighting Words6. Fraudulent Commercial Speech
Content Neutral Regulation applies to
Regulation of Time, Place, Manner (Method)
Content Neutral Regulation (by the Government) of Time, Place, Manner (Method) test requires
Apply 3-part test. Regulation by the Government must: 1- Further a significant government interest 2- Be narrowly tailored, AND 3- Leave open alternative channels of communication
4 Facial Attacks on Protected Speech are
- Over Breadth 2. Vagueness3. Prior Restraints4. Unfettered Discretion
Public Speaking Forums are categorized as:
1- Public Forum - Streets - Sidewalks - Public Parks - Areas generally open to the public 2- Limited Public Forum - School rooms (opened by state on permanent / limited basis) 3- Non Public Forum - Most other public places - Military bases - City Bus - Government workplaces - Airport terminals
Vice Advertising (Central Hudson)
Government regulation must:1. Directly Advance2. A substantial Governmental Interest AND 3. Narrowly tailored
Free Exercise Methodology categories
(1) Purposeful Interference by the Government (apply strict scrutiny test) (2) Incidental burden (apply rational basis test)
Establishment Clause (Lemon v. Kurtzman). In order not to violate the Lemon Test
- The primary purpose must be secular (Purpose Prong)2. Primary effect must neither inhibit nor advance religion (Effect Prong)3. No excessive government entanglement with religion (Entanglement Prong)
The Establishment Clause
The Establishment Clause has generally been interpreted to prohibit 1) the establishment of a national religion by Congress, or 2) the preference by the U.S. government of one religion over another. The first approach is called the “separation” or “no aid” interpretation, while the second approach is called the “non-preferential” or “accommodation” interpretation. The accommodation interpretation prohibits Congress from preferring one religion over another, but does not prohibit the government’s entry into religious domain to make accommodations in order to achieve the purposes of the Free Exercise Clause.
Lemon v. Kurtzman
A case in which the Supreme Court of the United States ruled that Pennsylvania’s 1968 Nonpublic Elementary and Secondary Education Act (represented through David Kurtzman), which allowed the state Superintendent of Public Instruction to reimburse nonpublic schools (most of which were Catholic) for the salaries of teachers who taught secular material in these nonpublic schools, secular textbooks and secular instructional materials, violated the Establishment Clause of the First Amendment. The Court found that the parochial school system was “an integral part of the religious mission of the Catholic Church,” and held that the Act fostered “excessive entanglement” between government and religion, thus violating the Establishment Clause.
Crimes Against the Person - Coverage Areas
Elements of Crimes 1- Mens Rea 2- Actus Reus 3- Defenses - Insanity - Self DefenseCrimes Against the Person 1- Assault and Battery 2- Murder - Felony Murder - Depraved Heart Murder - Intent to Inflict Serious Bodily Injury Murder 3- Manslaughter - Voluntary - Involuntary
Checkpoint Items for Criminal Procedure on the MBE
- Mental State Questions - Statues - Reading Comprehension Issues- Defenses - Multiple Types of Homicide - Lesser includes Offenses
Approach to Crimes MC on the MBE
1- Type of Injury/ Who or what is the crimes against?2- Statute?3- What is the mind of the defendant?4- Are there defenses?
Criminal Law - Crimes Against the Person; Principles of Criminal Liability are:
- Actus Reus- Mens Rea- Concurrence- Causation- Defenses
What is Mens Rea?
Means “Knowingly”
Describe what “Knowingly” means in regard to Mens Rea
A person has “knowledge” of a material fact if he is “aware of the fact” or he correctly believes that it exists.
Most jurisdictions permit a finding of “knowing” when
Most jurisdictions also permit a finding of knowledge of an attendant circumstance when the defendant is said to be guilty of “willful blindness” or “deliberate ignorance,” i.e., if the defendant is aware of a high probability of the existence of the fact in question, and he deliberately fails to investigate in order to avoid confirmation
What are the 3 types of Crime on the MBE
1- Specific Intent2- General Intent 3- Strict Liability
What is a Specific Intent Crime
Specific Intent Crime - Requires an actual subjective intent to cause a specific result
What is a General Intent Crime
General Intent Crime- requires only an intent to do the prescribed act
What is a Strict Liability Crime
Strict Liability Crime - requires no mens rea;
What are Strict Liability Crimes
1- Regulatory offenses; Statutory Crimes2- Regulation of food, drugs, firearms3- Morality crimes
Voluntary Intoxication is what type of crime
It is a Specific Intent crime, but a defense to specific intent crime where it negates the mens rea, but no defense to a general intent crime such as arson
Mistake of Fact as a defense to the Specific Intent crimes
Mistake of fact is a defense to specific intent crime, any mistake which is reasonable or unreasonable
Mistake of Fact as a defense to the General Intent crimes
Mistake of fact is a defense to a General Intent, but ONLY reasonable mistake
Mistake of fact is a defense to Strict Liability Crimes
Mistake of fact is a defense to Strict Liability crimes is NO defense
Self Defense is defined as
Reasonable non-deadly force is allowed where defendant reasonably believes it is necessary to avert imminent harm
When is deadly force allowed
1- To meet deadly force; OR2- To counter a threat of serious bodily harm
what is the general rule about a duty to retreat on the MBE
There is NO duty to retreat
Insanity Defense is a.k.a.
M’Naghten - cognitive test
What is the requirements to plead insantity
1- Defendant does not know the nature and quality of his act, OR 2- Defendant does not know what he was doing was wrong
Homicide - Intentional Murder is
Premeditated Mens Rea and Actus Rea
Homicide - Unintentional Murders are
1- Felony Murder;2- Intent to inflict serious bodily injury3- Depraved Heart Murder4- Nonfeasance
Homicide - Manslaughter are
Voluntary Manslaughter
Homicide - Unintentional Manslaughter is
Involuntary Manslaughter and Nonfeasance
Criminal Liability for Failure to Act arises when
A duty may arise by: 1- Statute2- Contract3- Creation of Victim’s peril4- Relationship (parent and spouses)
Voluntary Intoxication has what affects on Homicide crimes
Voluntary Intoxication (Specific Intent) Can reduce 1st degree murder to 2nd degree murder, BUT it does NOT mitigate murder to voluntary manslaughter
What is Manslaughter - Voluntary
Voluntary Manslaughter is the intentional killing (Specific Intent Crime), but the intentional killing occurred because:1) Adequate provocation 2) Mistake Justification
What is Manslaughter - Involuntary
Involuntary Manslaughter is the unintentional killing (General Intent Crime), but the unintentional killing occurred because: 1) Gross Negligence2) Misdemeanor - manslaughter
Redline Rule
To be guilty of felony murder, the killing must have been done in the furtherance of the felony, but the victim must be an innocent party. Felony murder does not apply when the person killed is a co-felon.
First Degree Murder is reserved for
The intentional killing that was premeditated
Second Degree Murder is reserved for
Unintentional Felony Murder; Malice Required Defendant intended to inflict serious bodily injury on the victim; Depraved Heart in which the defendant did not intend any specific victim but acted with malice and didnt care if someone was killed
Incohates are Crime
which include solicitation; conspiracy; attempt
Crimes Against Personal and Real Property are
Arson;Burglary;Theft Crimes 1- Embezzlement 2- Larceny 3- Larceny by Trick 4- False Pretenses 5- Receiving Stolen Property
Checkpoint Items on Criminal Law MBE questions
1- Specific Intent Versus General Intent 2- Theft Crimes 3- Torts or Crimes 4- Third Party Liability 5- Parties to a Crime
What is the crime of Solicitation. Specific Intent Crime.
Defendants entices, encourages, orders or requests another to commit a crime. The crime of Solicitation is COMPLETE at the point once the solicitation occurs, even if the subsequent crime does not occur. Solicitation MERGES into the target office. There are no defenses at common law
Define Conspiracy. Specific Intent Crime.
- Elements (common law): (1) Agreement between 2 or more persons (2) intent to achieve same criminal objective- Conspiracy does NOT merge
Defenses to Conspiracy. Specific Intent Crime.
Defenses are: (1) Withdrawal is no defense at common law(2) MPC contra if defendant “thwarts the success”
What is the crime of Attempt. Specific Intent Crime.
- Elements: (1) Intent to commit a crime; (2) a “substantial” step in furtherance that goes beyond mere preparation- Mergers into the completed offense
What are the defenses to Attempt. Specific Intent Crime.
Defenses are: Legal impossibility
All incohate crimes are
Specific Intent Crime.
What is not a valid defense to the crime of Attempt. Specific Intent Crime.
The crime was factually impossible to execute
What is the Unilateral Theory of Conspiracy
According to the MPC, an agreement between “2 or more” persons is not required. Only an intent by a single actor agreeing with another is needed
Scope of Conspiracy, a co-conspirator is guilty of
A co-conspirator is guilty of all crimes committed “in furtherance” of the conspiracy (i.e., Pinkerton crimes)
Withdrawal from Pinkerton crimes (Conspiracy) may occur when
Where the conspirator 1- Notifies all other members of the conspiracy, AND2- Such notice is timely giving other members the opportunity to abort their plans
Accomplice Liability Crimes. Specific Intent Crime.
1) gives aid or encouragement with 2) intent to achieve same criminal objective. Scope: all crimes “reasonably foreseeable from the aid or encouragement”
Battery is what type of Crime
General intent crime, which is the unlawful application of force against another
Assault is what type of crime
Specific Intent Crime. Which includes 1) attempted battery type or 2) Intent to Frighten Type but in both case you make actual contact with the person
Theft Crimes include
Larceny; Embezzlement; Larceny by Trick; False Pretenses; Receiving Stolen Property
Accessory After the Fact is what type of crime
Specific Intent Crime.
Accessory After the Fact is defined as
the Accessory-Defendant knows of a completed crime, and Gives aid to hinder apprehension or conviction of the original criminal defendant
Theft Crimes that do not pass title are
Larceny, the taking is trespassory/wrongful and title does not passLarceny by Trick
Theft Crimes that DO pass title are
Embezzlement and False pretenses, both the property and title pass to the defendant
Theft Crimes of Larceny, Larceny by Trick, Embezzlement, False Pretenses require
require a false representation of a “Past or Present” material fact
False Pretenses (Specific Intent Crime) is
False representation of a past or present material fact which causes the victim to pass title to the wrongdoer
Embezzlement (Specific Intent Crime) is
Fraudulent conversion of the personal property of another by one in lawful possession
Burglary (Specific Intent Crime) Elements
Elements (Common Law): - Breaking and entering of, - the dwelling house of another, - at nighttime with - the intent to commit a larceny or felony therein
Criminal Procedure - Coverage Areas
4th Amendment - Standing - Probable Cause - State Action - Warrant Requirements - Warrantless Searches - Dog Sniffs 5th and 6th Amendment - Right to Counsel - Right to Remain Silent - Miranda - Massiah - Double Jeopardy
Checkpoint Items for Criminal Procedure
Pretrial Issues - Lineups - Photo ArraysTrial Issues - 4th Amendment - 5th Amendment - Right to CounselPost Conviction Issues - Sentencing - Appeals
Approach to Criminal Procedure
1- Standing - Possessory interest in place or thing? 2- State Action - is there a government actor involved? 3- Timing - pre or post indictment or arrest 4- Requirements - reasonable suspicion, probably cause5- Exceptions
Presumptions in Criminal Procedure
- Shifts the burden of production to the opposing party- Must be accepted as true, unless rebutted- A jury instruction creating a presumption as to an element of the crime charged is unconstitutional and violates due process
Basis for Appeals, are generally,
Right to Jury Trial in criminal procedure when imprisonment for more than 6 months is possible. Right to Counsel arises for felonies or misdemeanors where imprisonment is actually imposed
Reasonable Expectation of Privacy under criminal procedure implies that
if there is reasonable expectation of privacy, then the police intrusion constitutes a search. If there is no reasonable expectation of privacy, then intrusion is not a search
Standing in criminal procedure
Defendant must have a possessory interest in the premises searched or in the items seized
Search under Criminal Procedure requires
- Probable Cause 2. Warrant requirement, unless an exception applies - Stop and frisk - Search incident to lawful arrest - Plain view - Automobile - Consent - Hot pursuit - Exigent circumstances
Inventory Search is
A routine search to protect the arrestee’s personal items and to safeguard the police from any claims of theft
Curtilage
the land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated “open fields beyond.”
Open Fields Doctrine
- Applies to the area beyond the “curtilage”- There is No Reasonable Expectation of Privacy- No 4th Amendment protection - A view of “open fields” is NOT a search
Consent Search
Consent extends to all areas where a person with an apparent equal right to use or occupy the property would have joint access or control
Consent Search -applies to
Co-habitant; Shared area; Child;Burden on Police
Dog Sniff
A dog sniff of the exterior of a lawfully stopped vehicle does NOT constitute a search. A positive canine alert provides probable cause to search
Warrant Requirements
- A search warrant may be issued only by a neutral, disinterested magistrate - Search warrants require probable cause, oath or affirmation, and a particular description of the place and object of the search to meet constitutional requirements- A sworn statement of facts showing probable cause to search a particular place for particular items. - The standard for probable cause is objective, meaning that there is sufficient information to persuade a reasonable person that a certain place contains evidence of a crime
Protective Sweep
- A sweep of the area immediately around the arrestee, and the path, walk or hallways directly to and from and the the entrance to the residence - The purpose is to ensure the security of law enforcement officers - The protective sweep must be limited to a cursory inspection of places where a person may hide, and last no longer than is necessary to dispel the reasonable suspicion of danger
Miranda
- Law enforcement officials are required to administer warnings in order to protect an individual who is in custody and subject to direct questioning or its functional equivalent- Prevents against violations of individual’s Fifth Amendment right against compelled self-incrimination
6th Amendment Right to Counsel
- Prevents deliberate elicitation of incriminating statements once formal charges have been filed (critical stages)- Actual waiver required
Double Jeopardy
The act of putting a person through a second trial for an offense for which he or she has already been prosecuted or convicted
Presentation of Evidence - Coverage Areas
Presentation of Evidence - Preliminary Questions of Admissibility - First Hand Knowledge - Burdens of Persuasion and Presumption - Habit Evidence - Subsequent Remedial Measures - Settlement Offers - Offers to Pay Medical Expenses
Approach to Evidence Questions
- Underline the Cause of Action - Civil or Criminal - Situate the Proceeding - Direct or Redirect - Party or Witness - Purpose for Evidence - Substantive use - Impeachment use
Relevant Evidence is
Relevant Evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence
Admissions are
-Statement of a party - Oral or Written Assertion / Conduct- Used against them by their opponent - Can be anything (words, letters, documents)
FRE 1002: Best Evidence Rule is
- To prove the contents of a writing (recording, photograph, X ray) the original must be produced unless shown to be available - Rule applies where contents are in issue: i.e., where the testimony is reliant on the writing, not on personal knowledge - The person testifying has personal knowledge ONLY because of the original writing
Preliminary Questions of Admissibility include
Questions concerning qualification of a person to be a witness (FRE 601, 602, 603, 401), existence of a privilege, or admissibility of evidence shall be determined by the court
Burdens in a Civil Action
- Burden of proof on the Plaintiff - Burden of persuasion - preponderance of the Evidence
Burdens in a Criminal Action
- Burden of proof on Prosecution - Burden of persuasion - beyond a reasonable doubt of every element
Habit Evidence
Habit Evidence is evidence of the habit of a person, or the routine practice of an organization is admissible to prove conduct. Corroboration is not required
Subsequent Remedial Measures
Evidence of subsequent remedial measures is inadmissible to prove negligence
Subsequent Remedial Measures, Exceptions are:
Is evidence to prove (1) Ownership, (2) Control
Settlement offers that are not admissible are
Offers to settle claims in “dispute” are inadmissible. Admission are NOT severed and are inadmissible
Offers to Pay Medical Expenses
Offers to pay medical expenses of another are inadmissible. Admission ARE severable and admissible
Checkpoint Items for Character Evidence
- Character is tricky, watch for state distinctions as trap answers as they are generally opposite rules- Impeachment is a good answer when someone does not come in substantively for its truth- Have to follow and approach, - where are you in the case - what kind of case is it - purpose of the evidence
Character Evidence in Criminal Cases- Character of Defendant
Defendant may open the door with “reputation or opinion” evidence (not specific acts) of his good character to prove his innocence and the prosecution may so rebut
Character Evidence in Criminal Cases- Character of Victim
Where evidence of a pertinent trait of character of the alleged victim is offered by the accused, the prosecution may rebut the same way
Character Approach in Criminal Cases
Door opened? Trait? Reputation / Opinion
4 Ways to Impeach
- Bias / Prejudice; Prior Inconsistent Statement; Sensory Defects; Character to Impeach
Bias / Prejudice
- Bias of a witness is always considered relevant. - A witness can be impeached by showing that he has a reason for lying about or misrepresenting facts because he is - biased in favor of a party, - prejudiced against a party, or - has an interest in the outcome
Prior Inconsistent Statement may be admissible substantively when
Admissible substantively in 3 cases 1. If “sworn” under FRE 801(d)(1)2. As an admission under FRE 801(d)(2)3. If a Hearsay Exception applies
Sensory Defects
Any sensory or mental defect that might affect a witness’s capacity to observe, recall, or relate the events about which the witness has testified is admissible to impeach
Prior Bad Act Impeachment
- Reputation or opinion testimony about the witness involving truthfulness - Questions regarding specific instances of conduct allowed on cross-examination
Convictions to Impeach
- Felony Conviction - Convictions involving dishonesty or false statement
FRE 404(b): Mimic Rule
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes. M Motive I Intent M Absent of Mistake/Knowledge I Identity C Common Plan or Scheme
Hearsay Exceptions
- Present Sense Impression - Excited Utterance - Dying Declaration- Business Records- 403 Balancing Test
Non Hearsay
- Admission - Prior Consistent Statements - Prior Identifications
Checkpoint items for Hearsay
- 26 Rules to Memorize- 10 Rules of what is NOT Hearsay - Factually specific - Lot of Reading Comprehension in the fact patterns- Watch for Non hearsay uses -Calls of question are critical
Approach to Hearsay MBE
- Isolate the Statement 2. Determine who is the declarant 3. Purpose for which the evidence is being offer: - for its truth = hearsay - not for its truth = not hearsay4. Apply the hearsay exceptions if the statement is being offered for its truth
Effect on Listener FRE 803(3), not hearsay
Not Hearsay which is Circumstantial evidence offered to show: - Knowledge - Intent- Attitude - Belief Of the declarant or of the listener
Effect on Listener FRE 803(3), hearsay exception
Statement of then existing state of mind or physical condition- Intent - Design- Plan - Motive Offered for its truth
Statement Made for Medical Diagnosis or Treatment
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or external source thereof insofar as reasonably pertinent to diagnosis or treatment
FRE 803(6): Business Record
- Report or record concerning act or event- Made at or near the time - By a person with knowledge- Kept in the regular course of business
Past Recollection Recorded
- The witness once had personal knowledge of the writing - The witness now forgets the writing and showing the writing to the witness does not jog his or her memory; - The writing was either made by the witness or adopted by the witness; - The writing was made when the event was fresh in the witness’s memory; and - The witness can attest that, when made, the writing was accurate
Absence of Entry in a Business Record
Lack of a record to prove that a transaction or occurrence had not taken place, is admissible if it was the regular practice of the business to record such events if they had actually occurred
FRE 803(2): Excited Utterance
Statement relating to a startling event made while declarant was under the stress of excitement caused by the event
FRE 804(b)(2): Dying Declaration
- Statement must concern cause or circumstances of death 2. Unavailable declarant3. Criminal homicide or any civil case 4. Declarant’s belief of imminent death
Confrontation Clause
The Confrontation Clause requires that (1) in a criminal case AND (2) where the declarant is unavailable, that “Testimonial” evidence is inadmissible unless defendant is given prior opportunity to cross-examine the declarant
Davis v. Washington established that Not Testimonial Evidence is
Primary purpose of the testimony by the declarant is to obtain police assistance to meet an “ongoing emergency”
Hammon v. Indiana established that Testimonial Evidence is
Primary purpose of the testimony by the declarant is for “interrogation,” which is to establish or prove past events relevant to later prosecution
FRE 804(b)(3): Declaration Against Interest
Statement of an: 1- Unavailable declarant2- Non-party (generally)3- Against interest when made (penal, pecuniary or proprietary)
FRE 804(b)(1): Former Testimony
1- Testimony from the same or different proceeding, or in a deposition;2- Unavailable declarant; 3- Opportunity and similar motive to develop the testimony on direct, cross, or redirect
FRE 804(b)(4): Statement of Pedigree
A statement of Pedigree: a statement concerning declarant’s own relationship by blood, adoption, or marriage or other similar fact of personal or family history
Leading Questions are appropriate when:
- On Cross- Hostile or adverse witnesses - Questioning children- Refreshing a witness- Preliminary background matters
Spousal Privilege applies to
- Protects communications Before AND during marriage (impressions/observations), BUT the privilege is lost at divorce. - Applies to Criminal Cases ONLY- Holder of the privilege: - Common Law - Party Spouse - Federal Courts (Majority) - Witness Spouse
Marital Privilege applies to
- Protects communications only DURING marriage - Privilege survives divorce - Applies to BOTH Civil and Criminal - Holder of the privilege: - Both Spouses have the privilege
Attorney Client Privilege
- Communications between a client an her attorney are inadmissible - Rationale- By assuring confidentiality the privilege encourages clients to make “full and frank” disclosures to their attorneys, who are then better able to provide candid advice and effective representation
Opinion Testimony applies to
Lay witnesses may offer opinion testimony if: - Opinions must be based on first-hand knowledge or perception; and - Helpful to the finder of fact
Contract Formation Coverage Areas
- Offer- Acceptance - Consideration - Consideration Substitutes- Counter Offer- Revocation - Modification - UCC - Common Law- Preexisting Duty Rule
Checkpoint Items
- Contracts involving the Sale of Land- Contracts containing contingencies - I will buy if I can get certain financing - I will sell my house first - Consideration and substitutes for consideration - Modification - Contracts mixing goods and services
Approach to Contracts
- What Law Applies - UCC or Common Law- What Kind of Contract - Unilateral or Bilateral- Who are the parties? - Merchants/Kids-necessities
What is an Offer
An objective manifestation by the offeror of a willingness to enter into a bargain creating the power of acceptance in the offeree
What is an Acceptance
An objective manifestation by the offeree to be bound by the terms of the offer
Termination of an Offer (ways to terminate an offer)
- Death of the offeror- Revocation - Verbal - Written - Actions inconsistent with the offer - Can be communicated by a third party- Rejection - Counteroffer - Lapse of Time
Rejection versus Inquiry
Rejection terminates the offeree’s power of acceptance. Inquiry does not terminate the offeree’s power of acceptance. Offeror can renew offer in the face of a rejection
When an offer is made the Offeror can
Revoke
When an offer is made the Offeree can either
-Accept-Reject-Counteroffer (Which is a rejection with an offer)-Inquiry
UCC 2-206: Non Conforming Goods
If non-conforming goods are shipped, the shipment serves as an acceptance and at the same time a breach
Unilateral Contract
Offeror makes an offer that calls for performance; the Offeror is ONLY looking for performance
Bilateral Contract
Offeror and offeree exchange mutual promises; the Offeror is ONLY looking for a promise to perform
UCC 2-205: Firm Offer Rule
A signed writing by a merchant which by its terms gives assurances that it will be held open is not revocable for lack of consideration for the stated period of time not to exceed three months
Consideration
Bargained for Legal Detriment
Consideration – Considerations
- Look for a valid contract - Is there a bargain the court MUST enforce? - Bargained for exchange - Forbearance to sue - Look for a substitute for consideration - Is there a bargain the court should enforce?
Implied in Law Contracts
- A quasi-contract is NOT an actual contract, rather a legal substitute for a contract formed to impose equity between two parties- A contract SHOULD have been formed, even though in actuality it was not- Implied in law contracts are used when a court faces a situation of injustice to enforce the agreement to ensure fairness
Modification
A subsequent agreement that alters or changes the parties’ duties and obligations under the terms of their original contract
Modification - UCC requires
1- Good Faith2- NO additional Consideration is required
Modification - Common Law
Preexisting Duty Rule - New Consideration Required
Preexisting Duty Rule
Performance of an act by which a party is already contractually bound to perform does not constitute valid consideration for a new promise
Defenses and Remedies - Coverage Area
Defenses to Contract Formation - Infancy - Mistake - Statute of Frauds - IllegalityRemedies - Specific Performance - Money Damages - Injunctions Parol Evidence
Checkpoint items
- Lots of defenses to formation - Remedies are a hot area- Lot of cross over here with state essays- Also cross over here with landlord tenant- Statute of Frauds is always a favorite
Contract Defenses - Mutual Mistake
Both parties are mistaken as to a material element that goes to the heart or essence of the bargain. The Remedy: Rescission of the Contract
Contract Defenses - Unilateral Mistake
Contract is enforceable against the mistaken party, UNLESS the non-mistaken party knew or should have known of the other’s mistake
Anti-Assignment Clause
- The assignor need not consult the other party to the contract- An assignment cannot have any effect on the duties of the other party to the contract, nor can it reduce the possibility of the other party receiving full performance of the same quality- Certain kinds of performance, therefore, cannot be assigned because they create a unique relationship between the parties to the contract
Implied in Law
A legal substitute for a contract formed to impose equity between two parties. A contract should have been formed, even though in actuality it was not
Implied in Fact
An agreement founded upon a meeting of the minds, which, although not embodied in an express contract, is inferred from the conduct of the parties
Contract Remedies in Law
Money Damages
Contract Remedies in Equity
- Injunction - Specific Performance- Rescission - Reformation - Quiet Title actions- Partition Proceedings
Specific Performance
A remedy used to enforce a contract for the sale of unique item of personal property or real property
Condition Precedent
An act or an event (other than the lapse of time) that must occur first before a party is under a duty to perform
Contracts with Minors
- Minors are regarded as not having sufficient capacity to comprehend questions involving contractual rights- A person dealing with a minor does so at his or her peril and subject to the right of the minor to avoid the contract
Certain Contracts with Minors cannot be voided
- Taxes- Penalties - Bank Regulations - Military - Necessities
Statute of Frauds
Requires certain types of contracts and agreements to be in writing
What is the Mnemonic for the State of Frauds
MY LEGSM- MarriageY- Year (1) - Contracts that cannot be performed in L- LandE- Executor G- Guarantor S- Sale of Goods (500+)
Main Purpose Rule
An oral promise to answer for the debt of another is enforceable if the promisor’s main purpose is to further his own economic advantage
Parol Evidence Rule
Once the parties have reduced their agreement to a writing, evidence of any prior oral or written or contemporaneous oral agreements is inadmissible to alter, vary, or contradict the terms of the writing
Parol Evidence Exceptions
- Fraud- Mistake- Illegality- Duress- Partial Integration - Conditions Precedent
UCC - Uniform Commercial Code -Coverage Areas
UCC - Merchant Specific Rules - Confirmatory Memo - Firm Offer Rule - Defenses - Damages - Requirements Contracts - Installment Contracts - Battle of the Forms Third Party Beneficiaries - Intended - Incidental -Assignment and Delegation
Checkpoint Items
- Rule specific questions - know it or dont- Many questions deal with who the parties are - Students get lost in the details- Often times identifying who is making the offer and who is accepting is difficult- Whose terms govern?
Requirements Contract
A contract in which one party agrees to supply as much as a good or service as is required by the other party, and in exchange the other party expressly or implicitly promises that it will obtain its goods and services exclusively from the first party
UCC 2-712: Cover by Buyer
After covering aggrieved buyer may recover: Price to Cover - Contract Price + Incidental and Consequential Damages
UCC 2-615: Impracticability
Delay in delivery or non delivery by a seller is not a breach if the seller’s performance is made impracticable by a contingency whose non-occurrence was a basic assumption on which the contract was made
Impossibility - Subjective
Subjective impossibility will NOT excuse duties of performance under a contract
Impossibility - Objective
Objective impossibility WILL excuse duties of performance under a contract
3rd Party Beneficiary Analysis
- Identify 3rd Party Beneficiary Contract - Intent to Benefit Test - Is 3rd Party incidental - then no rights - Is 3rd party intended - then Step 3- Has Third Party Vested? (Have Rights?) - Learned of the contract and assented to it? - Changed positions in reliance on the contract?
UCC 2-601: Buyer’s Options for Non-Conforming Goods
Buyer has three options: 1. He can accept the whole shipment 2- He can reject the whole shipment 3- He can accept any commercial unit or units and reject the rest
Free on Board (FOB)
Indicates that the seller is responsible for getting the goods to a shipper designated by the buyer. At this point, the risk of loss passes from the seller to the buyer
Incidental Damages
Incidental Damages are: Expenses incurred by the injured party as a result of the other party’s breach of a contract, such as: - Expenses for inspection, receipt, transportation - Storage of rejected goods or services - Expenses associated with buying replacement goods or services, and - Any other expense related to delay in delivery or non-delivery
Consequential Damages
- Damages which do not derive directly from the breach, but from the result of the breach; they are more “indirect” in direct - Ex- losses Buyer incurs which the Supplier had reason to know at the time of contracting and which Buyer could not reasonably have prevented
UCC 2-609: Right to Adequate Assurances
- When reasonable grounds for insecurity arise, one party may (in writing) demand adequate assurances from the other that the performance will occur- Assurances must be provided within a reasonable time (no more than 30 days)- Failure to provide assurances is a repudiation of the contract
Ownership and Rights in Land - Coverage Areas
Ownership - Future Interest - FSD - FSCS - Joint Tenancy - Partition ProceedingsRights in Land - Licenses - Easements - creation and destruction - Covenants
Checkpoint items
Co-Tenancies - Joint TenanciesLicenses EasementsIssues concerning equitable prinicpals
Future Interests - Future Interests in Grantor
- Possibility of Reverter (Automatic reversion)- Right of Reversion (Duty to act- No Automatic reversion)- Reversion
Future Interests - Present Possessory Interest
- Fee Simple Absolute- Fee Simple Determinable- Fee Simple Subject to Condition Subsequent- Fee Simple Subject to Executory Limitation- Life Estate
Future Interest in Third Party
- Executory Interest- Remainder
Rule Against Perpetuities applies to situations where there are:
- Contingent Remainders / Class Gifts2. Options to Purchase (Fee Options)3. Powers of Appointment 4. Executory Interests5. Rights of First Refusal
Restraints on Alienation
- A restriction prohibiting the recipient from selling or otherwise transferring his interest in the property. -Such restraints are void as against public policy of allowing landowners to freely dispose of their property
Certain restrains on Alienation are valid, including:
- A prohibition against partition of property for a limited time - The right of first refusal
Concurrent Estates are
- Joint Tenancy- Tenants by the Entireties - Tenants in Common
Joint Tenancy Requirements
- 4 units - Time; Title; Interest; Possession - Survivorship - estate passes to the survivor
Tenants by the Entireties
- Reserved for Husband and Wife - Requires the marriage as a 5th unit
Severance of a joint tenancy becomes a
an estate of Tenancy in Common
How can a joint tenancy be severed
1- Conveyance Inter Vivos2- Death of one of the two remaining Joint Tenants3- Mortgage under title theory 4- Final partition action
Tenancy in Common is
1- Unity of Possession only - Both parties own an undivided interest in the property - the land passes through a Will or Intestacy
License is a
a Revocable personal privilege to enter the servient tenement of the licensor without liability for trespass
Easements are
A non possessory interest in the USE of land of another 1- Easements in Gross2- Easement Appurtenant
What is an Easement in Gross
- No dominent Tenement 2. Do not run with the land
What is an Easement Appurtenant
- 2 Parcels - Benefitted for dominant land - Burdened on the servient land 2. The easement runs with the land
Easements are created by
Creation 1. Expressly in writing - grantor to grantee2. Necessity - landlocked, but allow judge to decide3. Implication - reflected the practices and customs of the property 4. Prescription - adversely possessed (no exclusivity)
Easements are terminated by
- Written release2. End of necessity3. Abandonment - Requires intent & Physical act4. Merger - unity of ownership
Covenant is a
A contract in which the covenantor makes a promise to a covenantee to do or not to do some action tied to the use of land. A covenant running with the land, imposes duties or restrictions upon the use of that land regardless of the owner
Landowner Tenant and Titles - Coverage Areas
Landlord Tenant - Subleases - Assignments - Evictions - Right and Duties Titles - Adverse Possession - Lateral and Subjacent Support - Growing Crops - Water Rights - Conveyances
Checkpoint Items
Landlord Tenant - Common Law - Lots of Statutes Crossover with Torts and ContractsAssignments and Subleases Adverse Possession - Watch for Statutes Conveyancing
Constructive Eviction
Premises are “uninhabitable” AND Tenant moves out
Four Types of Tenancy (Landlord - Tenant)
1- Tenancy for Years - Fixed Term2- Periodic Tenancy - no ending date3- Tenancy at Will - indefinite4- Tenancy at Sufferance - Holdover Tenant
Delivery of Possession to Tenant- English Rule
Landlord has a duty to deliver possession at the lease inception
Delivery of Possession to Tenant- American Rule
Landlord DOES NOT have a duty to deliver possession at the lease inception, and the tenant has to bring an ejectment action against the holdover tenant
Subjacent and Lateral Support
Landowner is strictly liable if his excavation causes “unimproved” adjacent land to subside
Adverse Possession Requirements - MBE
Adverse Possession 1. Physical Element - Actual and exclusive (cannot be shared) - Open and notorious 2. Mental Element - adverse and hostile 3. For the statutory period
Property Contracts and Mortgages
Real Property Contracts: - Requirements - Statute of Frauds - Risk of Loss - Equitable Conversion Mortgages - Subject to and assuming grantees - Purchase money mortgages - Transfer of mortgage - Subrogation - Recording Statutes
Checkpoint Items
Real Property Contracts - Risk of Loss - Equitable Conversion - Contingencies Mortgages - Purchase Money Mortgages - Technical Requirements - Recording Statutes
Deeds - Valid Delivery occurs when
1- Proper execution 2- Intent to deliver
Equitable Conversion (Common Law) Majority on the MBE
Risk of loss for casualty is place on the buyer during the executory period. The buyer is the equitable owner of the land, whereas the seller, who holds legal title, is the equitable owner of the right to the full purchase price. The burden and the benefits of the land is shifted to the purchase once the contracts are signed
Uniform Vendor and Purchaser’s Risk Act
Risk of loss is on the buyer ONLY IF the buyer has legal title or “possession” of the property
Marketable title
is a title that is free from Encumbrances
Every contract to sale of land contains
an implied warranty of marketable title
Encumbrances on a title are
- Mortgage2. Lien3. Easement4. Equitable Servitude5. Zoning violation6. Future Interest
Bona Fide Purchasers (BFP) are
- Pays value (purchaser, mortgagee, judgment creditor) 2. Takes in “good faith” and3. Takes without notice (key MBE element) that someone else has title to the property
What are the three different Recording Statutes
1- Race - 1st to record wins2- Notice - Last BFP wins3- Race Notice - 1st BFP to record wins
Notice Statute states that
An unrecorded conveyance or other instrument is invalid as against a subsequent bona fide purchaser (credit or mortgagee) for value and without notice
Mortgage
an interest in land created in writing providing security for the performance of a duty or the payment of a debt
Foreclosure
the method by which the security is applied to satisfy the debt
Deficiency Judgment
allowed where the proceeds of the foreclosure sale are insufficient to satisfy the debt
Mortgagee can bring 2 causes of action
1) “in personam” on the debt 2) “in rem” on the security
Rights of a grantee
A grantee who “assumes” a mortgage is personally liable. A grantee who takes “subject to” the mortgage is not personally liable
Subject to the Mortgage where the deed makes no reference to the mortgage
it is presumed the grantee takes “subject to” and is not personally liable
Purchase money mortgage is
a purchase money mortgage takes priority over the other prior mortgages, regardless of recording statutes. The purchase money mortgage itself, however, must be recorded
Exoneration is
the right of a surety to compel the mortgagee to proceed against the person or property primarily liable
