MBE Flashcards
Larceny
Taking and carrying away the personal property of another by trespass with intent to permanently deprive.
Burglary
Breaking and entering the dwelling of another at night with intent to commit a felony therein
First Degree Murder
Typically defined by statute; killing another with either (a) deliberation or premeditation or (b) during the commission of an enumerated felony
Common Law Murder
Killing another with malice aforethought: (a) intent to kill; (b) intent to inflict great bodily harm; (c) reckless disregard for an unjustifiably high risk to human life [depraved heart]; or (d) intent to commit a felony
6A right to counsel
Applies to all critical stages of the prosecution and attaches to a specific offense upon initiation of criminal proceedings. Once attached, the police are prohibited from eliciting incriminating statements from D without the presence of counsel, unless D knowingly and voluntarily waives. The right applies to post-charge lineups and show ups, but does not apply to photo arrays.
Identifications: 14A DP
Identifications that are unnecessarily suggestive and present a substantial likelihood of misidentification violate the Due Process Clause. The identification must be extremely suggestive and the suggestiveness must have been initiated by the police. While show ups are unduly suggestive, they are a permissible identification method.
Marketable title
Reasonably free from doubt / unreasonable risk of litigation
It’s an implied covenant and the seller is only liable on it up until closing, after which the language of the deed controls
Earnest $
In a land sale contract, S will often require B to deposit earnest money in the event B defaults in performance. S can keep as liquidated damages so long as amount is reasonable
Theories under which seller can be liable for defects in existing building
- Misrepresentation
- Active concealment
- Failure to disclose (1-knows/should know; 2-latent; 3-serious)
General disclaimer won’t absolve seller
Inter vivos gift [deed] requires…
1-donative intent
2-delivery
3-acceptance
Deed formalities—requires…
1-writing
2-signed by grantor
3-reasonably identifies their parties and land
Void v voidable deeds
Void- will be set aside, even if property passed to BFP
Void when…forged; never delivered; fraud in factum [baseball autographs]
Voidable- will not be set aside, unless property has passed to BFP
Voidable when…minor-party executes; fraud; mistake; duress
Rules of construction for land description
Must give good lead
Hierarchy 1-natural monuments 2-artificial monuments 3-angles 4-distances 5-quantity
Avulsion v accretion
Avulsion—sudden change; does NOT change ownership
Accretion—slow change; does change ownership
Deeds—grounds for reformation
Misrepresentation
Scrivenor’s error
Mutual mistake
Deeds: delivery and acceptance
Delivery: intent to make deed presently effective; take back is not effective
Acceptance: presumed in most states
General warranty deed
1-seisin: title + possession
2-right to convey: title
3-against encumbrances
4-quiet enjoyment: won’t be disturbed in possession by lawful claim
5-warranty: will defend/compensate
6-further assurances: will perfect
Special warranty deed
Grantor not liable for defects that existed before the grantor was deeded the property
Estoppel by deed
Trigger: when S deeds property to A, which he does not own
What happens: if S later acquires property, he will lose against the grantee (title automatically inures in grantee). But, if S grants to A, then grants to B, B will prevail over A if B is a BFP
Shelter rule
A person who takes from a BFP will prevail against anyone whom the BFP would have prevailed against, even if the person has notice of the prior unrecorded transaction
Record notice
Deed is in chain of title, meaning that a searcher could reasonably find it
Effect of recording
Gives prospective subsequent grantees constructive notice; creates a presumption of valid delivery, but won’t validate an invalid deed
Recording protects BFPs
Ademption
[TESTATOR NO LONGER OWNS]
When property is devised in testator’s will, but TESTATOR NO LONGER OWNS it at the time of death, the gift fails
Exoneration
[PAYMENT FROM RESIDUARY ESTATE]
CL doctrine where devisee of specific property is entitled to have land exonerated by payment of liens and mortgages from the testator’s residuary estate
Lapse
[BENEFICIARY DIES BEFORE TESTATOR]
Occurs when beneficiary of a will dies b/f testator — at CL, gift fails, but now most states have anti-lapse statutes, which substitute the beneficiary’s descendants (e.g. dead guy’s son) for the beneficiary (so, the dead guy’s spouse will never get the gift)
Abatement
[REDUCTION OF GIFTS]
Reduction of gifts where estate assets are not sufficient to pay all claims against the estate and satisfy all devises and bequests
Gifts to specific devises and bequests will be abated last (meaning, abatement will first come from property passing by intestacy and the residual estate)
Mortgage
Debtor (mortgagor) signs note to lender (mortgagee). If debtor defaults, lender can foreclose on property through judicial foreclosure sale conducted by sheriff.
Deed of Trust
Security interest in real estate: debtor (trustor) gives deed of trust to third party (trustee) who is closely connected with the lender. If debtor defaults, lender can instruct trustee to foreclose on the deed by sale. Non-judicial sale is allowed
Installment Land K
Security interest in land: Legal title only passes upon completion of all payments
Lender transfers mortgage
-transfer w/out note: states are split (some find transfer is void)
- transfer of note w/out mortgage: OK; two methods
1) separate written assignment
2) indorse + deliver. This method will give the transferee “holder in due course status,” which basically takes certain defenses off the table for the debtor (like failure of consideration, fraud in the inducement, waiver, estoppel)
What happens when lender transfers mortgage and the debtor pays the lender rather than the transferee?
If the lender transferred a non-negotiable note, then any payments debtor makes to lender are effective against the transferee—meaning the transferee can sue the lender for the money, until the debtor receives notice of the transfer
If the lender transfers a negotiable note (less common), then payments by the debtor to the lender are NOT effective against the transferee
Assumption agreement
If the grantee signs, then she is primarily liable on the mortgage, while the original mortgagor becomes secondarily liable as a surety
What is the effect of a grantee and a mortgagee modify the terms of a mortgage?
The original mortgagor is no longer liable!
Due on sale clause
If it exists, then lender can demand full payment from original mortgagor if she makes a transfer without the lender’s consent
Mortgage consumer protection
A lender can only offer loans to a residential mortgagor that are understandable and not unfair, deceptive, or abusive.
Choice of law: law of the state where property is governs the mortgage; lender’s choice of law clause that selects a state with less stringent foreclosure consumer protection law is generally void
Can a mortgagee take possession of property before foreclosure, where debtor is in default?
It depends!
Lien theory (majority): NO (mortgagee only has title upon foreclosure)
Title theory: yes (mortgagor only has title upon paying off mortgage)
- but, mortgagee might not want to take possession due to risk of liability
- if the property is a rental property and the mortgagee wants to collect rents, she can ask the court to appoint a receiver, which requires a showing that 1) mortgagor is insolvent 2) waste and 3) value of property is inadequate to secure the debt
Foreclosure
Sale of property to satisfy a debt
All states allow judicial sale
Some states allow non-judicial sale under power of sale
Foreclosure will destroy JUNIOR interests, NOT senior interests. But if the junior interest holder is not notified and included in the foreclosure sale, her interest is preserved.
Foreclosure: redemption
Equitable redemption
—some states allow for this; provides the mortgagor to redeem property PRIOR to foreclosure sale by making payment of amount due. If there is an acceleration clause, debtor must pay mortgage in full.
Statutory redemption
—some states allow for this; provides the mortgagor to redeem property AFTER foreclosure sale by making payment of amount due. Usually, statutes allow for a limited period of e.g., 6 months.
Priority
Priority is determined by the time that the mortgage was placed on the property—meaning first in time has priority.
Foreclosure: What are the six ways in which priority can be modified?
1-recording statute (eg, first mortgagee fails to record and second mortgagee records —> ME2 has priority)
2-subordination agreement
3-PMM. A PMM is where a lender provides funds for the debtor to purchase the property, in exchange for a mortgage. A PMM lender will have priority over PRIOR claims, but subsequent claims will have priority under recording statutes or subordination.
4-Modification (junior interest holder has priority over modification)
5-Optional future advance (junior holder has priority over optional advance)
6- subrogation (senior mortgage that is refinanced with new mortgage)
—how this works: L1, L2, L3; mortgagor refinances by getting $ from L3 to pay off mortgage from L1; L3 now has priority over L2
Foreclosure: proceeds of sale (hierarchy)
First to last
1-atty fees; costs of sale; court costs
2-principal + interest on foreclosed loan
3-junior lien holders
4-mortgagor
Marshaling
Trigger: debtor gets a mortgage secured by two properties A and B from L1, then gets a mortgage from L2 secured by B, then debtor defaults on L1
Rule: Where a mortgagor has defaulted on a mortgage secured by two properties, a junior interest holder can ask a court to marshal assets—i.e., have the foreclosure first on the property that does not have her subordinate interest.
Result: L2 can ask court to first conduct judicial sale on property A, such that property B will only be foreclosed if the first sale was insufficient to satisfy L1’s debt
What are the five possible ways that the harsh result of forfeiture can be avoided in the event of default of an installment land K?
1-equitable redemption
2-treat as mortgage (allows for judicial sale)
3-restitution
4-waiver (if debtor can show vendor has pattern of accepting late payments)
5-election of remedies (either damages or SP only)
Fixture: definition
Chattel brought onto real property that becomes so affixed to land that it loses its status as personal property, becoming part of real property.
If the chattel is incorporated into a structure: if it loses its identity, like a brick, it is a fixture; if it does not lose its identity, but removal would cause substantial damage, like plumbing, it is a fixture
Fixtures: common ownership case
Trigger: A owns property and brings chattel onto property; A then sells property to B; what chattel is B entitled to?
Rule: whether chattel is a fixture depends on the objective intent of the seller—did the seller objectively intend to make the chattel part of the property —> factors... —a) nature of article —b) damage if removed —c) adaptation to property —d) manner of attachment
