MA distinctions -- property, contracts, and evidence Flashcards
How much notice must a landlord provide before evicting a tenant?
14 days. Tenant has option to cure within 10 days of receiving notice, as long as she hasn’t gotten another eviction notice within the prior year.
Eviction may be stayed
for up to a year if resident is disabled or over 60.
A landlord who uses self-help to evict a tenant is
liable for treble damages or three months’ rent, as well as attorney’s fees.
A landlord whose tenant abandons the premises before the lease is up must
at least try to re-let the premises (mitigation of damages).
Implied covenant of quiet enjoyment applies to
both commercial and residential leases.
Constructive eviction is a violation of
the implied covenant of quiet enjoyment.
An eviction is presumed retaliatory if it’s
done within 6 months of tenant complaint or valid withholding of rent
Caveat lessee has been
abandoned in MA – L is liable for any unsafe conditions of which he had notice.
To create an easement by necessity in MA, you must prove
strict necessity.
The implied equitable servitude, also known as the general or common scheme doctrine, is
not applicable in MA.
No adverse possession is permitted on these types of land:
- woodland or wild land
2. registered land
Removal of an encroachment on property in MA will not be required if
the encroachment is de minimis, D acted in good faith, and the cost of removal is grossly disproportionate to the benefit conferred by removal.
Tacking in adverse possession is allowed if there is
a nonhostile nexus between person and their predecessor – e.g. not ouster
An oral contract for the sale of land is usually ___________, unless all of these things have happened:
unenforceable because it violates the SOF
payment of all/part of price; buyer taking possession, or buyer making substantial improvements. (MBE: only need 2 of these 3)
In MA, who bears the risk of loss between when the K is signed and when the closing occurs?
The party in possession.
MBE: equitable conversion means that the buyer bears any losses because she holds equitable title at this point.
Defects in a deed are cured
once deed is on record for 10 years, unless there’s been an action commenced because of the defect during that time.
In MA, deeds must contain
full name, residence, and address of the grantee AND a recital of consideration
(in addition to words of grantor’s intent, adequate description of land, ID of parties, and signature of grantor)
MBE and MA: Do you need consideration in a deed?
MBE: NO
MA: YES
Recording a lawful deed in MA is
conclusive evidence of delivery
What’s known as the quitclaim deed on the MBE is what in MA?
Release deed
What’s known as the statutory warranty deed on the MBE is what in MA?
Quitclaim deed
A quitclaim deed in MA promises that
grantor hasn’t conveyed property to anyone other than grantee, and property is free from encumbrances made by grantor.
Inquiry notice
does not exist in MA. You do NOT take with notice of a prior grantee’s existence just because you could have seen evidence of their possession had you looked.
In MA, a mortgagee may still demand possession at any time, even if
debtor can still redeem.
In MA, habit evidence is admissible
only if it’s business routine, or if a decedent’s estate is trying to rebut a plaintiff’s evidence that a decedent made a certain promise (estate can introduce evidence that decedent had a particular method of dealing that conflicts with what P says).
Evidence of personal habit is not admissible – unless the decedent situation exists.
In MA, statements of fact made during settlement negotiations are
inadmissible as proof of fault or to impeach via prior inconsistent statement, EVEN IF they were made in a civil negotiation with a government agency.
A plea of guilty is
admissible in subsequent litigation based on same facts (as a party admission), unless it was withdrawn.
Statements expressing sympathy to accident victim or to victim’s family are
inadmissible in a civil case an an implied admission of liability. (MA only)
Statements by a doctor or medical professional expressing mistake or error
are inadmissible in medical malpractice suits. (MA only)
In MA, permissible character evidence takes the form of
reputation evidence ONLY – no opinion evidence.
Where D asserts self-defense in a criminal case, the court
has discretion to allow evidence of the victim’s prior specific acts of violence, but may NOT allow evidence via reputation or opinion.
If a D brings victim’s character into play in a self-defense case, prosecutor can rebut by
introducing evidence of specific acts of violence by the defendant.
Evidence of a victim’s prior false rape accusation
may be admissible if there’s corroborating evidence that such false accusations were, in fact, made.
Evidence of defendant’s prior specific acts of sexual misconduct are
NOT ADMISSIBLE in MA TO SHOW PROPENSITY. Only admissible if MIMIC rule is satisfied (e.g. prior act sheds light on M.O., motive)
The following documents are self-authenticating in MA:
- official publications
- certified copies of public or private records on file in public office
- newspapers/periodicals
- trade inscriptions and labels
- acknowledged documents (notarized)
- commercial paper
PLUS
- court records under seal
- domestic official records not under seal
- foreign official records
Does MA have a dead man statute?
NO. Interested witnesses are free to testify against a decedent’s estate, and the adversarial balance is maintained by a MA hearsay exception allowing in statements of a decedent.
How do the MA rules for past recollections recorded differ from the federal rules?
In MA, you can show a past recollection recorded to jury – in federal, can only read it to them.
In MA, can a lay witness testify to whether a person seemed sane/insane?
NO. (Can do so in MBE.)
In MA, what facts can an expert base an opinion on?
Only on facts that would be independently admissible. If they would not be admissible, they cannot be used EVEN IF they’re of the sort ordinarily relied upon by experts in the field.
In MA, an attorney must pose a question to an expert as a hypothetical unless
the expert has personal knowledge of the info to which she testifies. IF not, she cannot give an opinion on this particular case.
How can learned treatises be used in MA?
Takeaway: can only use to discredit an expert on cross, but can’t use on direct UNLESS MED MAL (and then, must give notice).
- They are admissible as substantive evidence IN MED MAL ONLY – don’t have to just be read in, but can be fully admitted in evidence.
- They do not have to be introduced by an expert IN MED MAL CASES ONLY.
- IF NOT MED MAL, can only be used to discredit an opponent’s expert.
In child sex abuse cases, an expert
cannot bolster the complainant’s credibility by saying that sex abuse actually occurred here.
Seen as violating the province of the jury.
True/false: Cross-examination in MA is limited to the scope of direct exam.
False. MA has “wide open cross” – can ask about anything relevant to the case.
General MA rule on bolstering credibility of your own witness:
Can’t do it until she’s been impeached, except prior IDs (also fine in federal) OR sexual assault – prosecution may introduce evidence of the victim’s first report of the assault, for the purpose of bolstering the victim’s credibility (NOT as substantive evidence).
The MA rule on impeaching your own witness is:
You can do it, but not by evidence of the witness’s bad character (e.g. reputation for truthfulness, prior convictions). Can do it using other methods.
Where extrinsic evidence is allowed to impeach, do you need to ask a witness about the impeaching fact before impeaching her with extrinsic evidence?
NO, never. (On MBE: only need to ask witness before impeaching her if you’re impeaching her for bias.)
Do you need to give a witness the chance to explain or deny a prior inconsistent statement?
Not usually, but if you’re impeaching your own witness with her prior inconsistent statement, you have to confront her with it while she is on the stand.
Do you have to confront your witness with alleged bias before impeaching her with extrinsic evidence of bias?
No. (Different in FRE.)
How do you impeach a witness for her character for truthfulness?
Reputation evidence only, no opinion.
Can impeach ANY witness this way.
Convictions that may be used to impeach a witness in MA are ____________________ and the various time limits are ___________________.
ANY conviction (felony or misdemeanor), subject to time limits that vary based on severity of punishment, and ALWAYS subject to court’s balancing:
- felonies resulting in prison sentence – can’t be used after 10 years from expiration of minimum term of imprisonment.
- felonies resulting in sentence other than prison (fine, jail, house of correction): can’t be used after 10 years from date of sentencing.
- felonies resulting in probation: can’t be used after 10 years from date of conviction.
- misdemeanors: can’t be used after 5 years from date of sentencing.
Felony convictions may be revived, even if they are too old under normal rules, if
witness subsequently is convicted of another crime within 5 or 10 years (depending on if misdemeanor/felony) of the time the witness testifies.
Are any convictions automatically admissible to impeach a witness in MA?
No. All convictions are subject to balancing by court.
When a criminal D testifies in his own defense, courts should
hesitate to allow impeachment with a conviction similar to the crime currently charged.
Bad acts that reflect poorly on truthfulness in MA:
NOT ALLOWED as impeachment evidence unless there was a conviction.
If an attorney would subject client to criminal liability by handing over physical evidence in her possession,
the attorney doesn’t need to hand it over – combination of self-incrimination privilege and A/C privilege supersede a subpoena.
Materials protected by the work product doctrine are _____ if a party uses them to refresh recollection.
no longer privileged and can be inspected by opposing party.
The MA physician-patient privilege applies
only to psychotherapists (true in federal question cases in federal court, too)
Spousal immunity in MA applies to
all criminal cases, but not to grand jury proceedings or to cases based on child abuse or incest.
Confidential communications between spouses in MA are
absolutely protected; spouses are BARRED from testifying to private oral communication that occurred during the marriage. Doesn’t last after death – spouse may testify to anything decedent spouse said.
Exceptions: abuse/incest, actions between spouses (contracts, paternity/support, desertion, neglect, etc.).
Children are ________ testifying against parents.
forbidden from (in criminal cases only, minor children only, and must live with the parent for the protection to apply).
Exception: if victim lives in same household and is member of parent’s family.
Privilege against self-incrimination and DUI cases in MA:
Privilege applies to evidence that a D refused to take a chemical/field sobriety test.
Prior inconsistent statements are/are not hearsay in MA.
They are hearsay and cannot be introduced for TOMA (even if under oath during formal proceeding – MA doesn’t recognize federal exclusion here; admissible only as impeachment)
Prior consistent statements to rebut charge of recent fabrication, contention of inconsistency, or charge of sensory incapacity are/are not hearsay in MA
They are hearsay and cannot be introduced for TOMA (only as rehabilitation – doesn’t recognize federal exclusion)
