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MBE Weakpoints Flashcards

1
Q

What is a Final Judgment?

A

One which ends litigation on the merits (all claims are resolved) and leaves nothing for the rendering court to do but execute the judgment.(Appeal is thereby precluded from any decision that adjudicates some but not all claims in the action.)Priority: HIGH

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2
Q

What are the exceptions to the Final Judgment Rule?

A
  1. Rule 54(b) Exception.
  2. Statutory Exceptions.
  3. Certified Appeal Exception.
  4. Collateral Order Doctrine.
  5. Writs of Mandamus and Prohibition.
  6. Pendent Appellate jurisdiction.
  7. Certification of Class Action.
    Priority: HIGH
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3
Q

Under the Rule 54(b) exception, when is an appeal allowed?

A

When:
1. The action has multiple parties or multiple claims;
2. The court directs entry of a final judgment for some of the claims or parties; AND
3. The court expressly determines that there is no just reason for delay.\
*If the above elements are NOT met, then the appeal must wait until after a final judgment for the entire case.Priority: HIGH

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4
Q

When may a Preliminary Injunction be issued?

A
  1. Upon notice to the adverse party; AND
    1. If the moving party gives security in an amount the court deems proper.\
  3. *The Federal Rules of Civil Procedure allow the court to issue both a restraining injunction or a mandatory injunction.Priority: Medium
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5
Q

What must the moving party show for a Preliminary Injunction to be issued?

A
  1. Likelihood of success on the merits;
  2. Likely threat of irreparable harm to the movant;
  3. That the harm alleged by the movant outweighs any harm to the non-moving party; AND
  4. The injunction is in the public interest.
  5. Priority: Medium
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6
Q

What is a Temporary Restraining Order (TRO), and when is it available?

A

An emergency remedy used to maintain the status quo pending the outcome of a hearing or application.It is ONLY available when the moving party will suffer immediate and irreparable harm.Priority: Medium

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7
Q

For an ex parte TRO, what must the moving party do?

A
  1. Provide specific facts in a sworn statement showing immediate and irreparable injury, injury, loss, or that damage will result before an adverse party can be heard;
  2. Certify in writing any efforts made to give notice to the adverse party and why notice should not be required; AND
    1. Give security in an amount that the court deems proper.\
  4. *The United States, its officers, and its agencies are not required to give security.Priority: Medium
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8
Q

When may a party amend a pleading as of right?In all other cases?

A

As of right: Within 21 days after service either of the original pleading OR a responsive pleading/pre-answer motion to the original pleading.In all other cases: With the opposing party’s written consent OR with leave of the court upon motion.Priority: Medium

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9
Q

When does an amendment to a pleading relate back to the original pleading?

A

When:* The amendment asserts a claim or defense that arose out of the same conduct, transaction, or occurrence as the original pleading allegations; OR* The law that provides the applicable statute of limitations allows the relation back.Priority: Medium

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10
Q

What is a Compulsory Counterclaim?

A

A claim that:1. Arises out of the same transaction or occurrence as the opposing party’s claim; AND2. Doesn’t require adding another party whom the court cannot acquire jurisdiction.*It MUST be stated in the party’s pleading; otherwise, it is barred in future litigation.Priority: Medium

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11
Q

When presenting papers to the court, what must a party certify under Rule 11?

A

That:1. It is not being presented for any improper purpose;2. The claims, defenses, and other legal contentions were warranted and non-frivolous;3. The factual contentions have evidentiary support or will likely have it after further discovery; AND4. The denials of factual contentions are warranted.*Sanctions may be issued for failure to comply.Priority: Medium

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12
Q

Under the Federal Rules of Civil Procedure, when may multiple plaintiffs join in one action (Permissive Joinder)?

A

If:1. Joint and several relief is asserted by them OR the claim arises out of the same transaction or occurrence;2. A common question of law or fact to all plaintiffs exist; AND3. Subject matter jurisdiction exists for each claim.*The process is similar for multiple defendants.Priority: HIGH

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13
Q

A party MUST be joined in an action if that party is necessary AND joinder is feasible.When is a party necessary?

A

A party is necessary if:* The court cannot grant complete relief without the absent party;* The absent party has an interest in the action that would be impaired or impeded if that person is not joined; OR* The party’s absence would leave an existing party subject to a substantial risk of multiple liability or inconsistent obligations.Priority: Medium

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14
Q

A party MUST be joined in an action if that party is necessary AND joinder is feasible.When is joinder feasible?

A

When:1. Joinder will not remove subject matter jurisdiction; AND2. The court has personal jurisdiction over the necessary party.Priority: Medium

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15
Q

_Class Actions_When can one or more members sue on behalf of an entire class?

A
  1. The class is so numerous that joinder of all members is impracticable (numerosity);2. There are questions of law or fact in common to the class (commonality);3. The claims or defenses of the representative parties are typical of the claims/defenses of the class (typicality); AND4. The representative parties will fairly and adequately protect the interests of the class (adequacy of representation).Priority: Medium
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16
Q

_Class Actions_Once the class action requirements are met, the class will be certified when?

A

If:1. Risk of Inconsistent/Dispositive Adjudications – when separate actions would create a risk of (i) inconsistent adjudications for other class members, or (ii) harm the interests of absent class members;2. Declaratory/Injunctive Relief – the party opposing the class has acted or refused to act on grounds that apply generally to the class so that injunctive or declaratory relief would be appropriate to the class as a whole; OR3. Predominance & Superiority – common questions of law or fact to the class members predominate over any questions affecting individual members and a class action is superior to other available methods to adjudicate the case.Priority: Medium

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17
Q

Under Rule 37(e), when may a party be sanctioned for failing to preserve ESI?

A

When:1. The ESI should have been preserved in anticipation of litigation;2. The party failed to take reasonable steps to preserve it; AND3. It cannot be restored or replaced through additional discovery.Priority: Medium

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18
Q

What does the Attorney Work Product doctrine protect?

A

All materials prepared by an attorney or his agents in anticipation of or during a litigation. They are protected from disclosure unless:1. A substantial need for the materials exist; AND2. A substantial equivalent cannot be obtained without undue hardship.Priority: Medium

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19
Q

When may a court issue sanctions with respect to Pretrial Conferences?

A

If a party or attorney:* Fails to appear;* Is substantially unprepared to participate;* Does not participate in good faith; OR* Fails to obey a scheduling or other pretrial order.Priority: Medium

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20
Q

What is the standard on a Motion to Dismiss?

A

The court must:1. Consider the facts in the light most favorable to the non- moving party; AND2. Determine whether there is any basis upon which relief can be granted for the non-moving party.*The court DOES NOT evaluate the merits of the case.Priority: HIGH

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21
Q

What are the Motion to Dismiss grounds?

A
  1. Lack of subject matter jurisdiction;2. Lack of personal jurisdiction;3. Improper venue;4. Insufficient process;5. Insufficient service of process;6. Failure to state a claim upon which relief can be granted;7. Failure to join a necessary party.*Grounds 2-5 are deemed waived if not raised in the first responsive pleading or Motion to Dismiss.Priority: HIGH
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22
Q

When will a court grant a Motion for Summary Judgment?

A

When:1. There is no genuine issue of material fact; AND2. The movant is entitled to judgment as a matter of law.*When reviewing the motion, the court MUST view the evidence in the light most favorable to the non-moving party.Priority: HIGH

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23
Q

When will a motion for Judgment as a Matter of Law (JMOL) be granted?

A

It will be granted if:1. The non-moving party has been fully heard on an issue during a jury trial; AND2. The court finds that a reasonable jury would not have a legally sufficient basis to rule in favor of the non-moving party on the issue.Priority: Medium

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24
Q

What are the elements of a valid contract?

A
  1. Mutual Assent (offer and acceptance);2. Consideration; AND3. No defenses to formation.Priority: HIGH
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25
Q

What law governs contracts for the Sale of Goods?

A

Article 2 of the Uniform Commercial Code.*Under the UCC, a contract may be made in any manner sufficient to show agreement (i.e. conduct showing parties recognize existence of a contract).*For mixed contracts, the predominant purpose determines which law governs.Priority: HIGH

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26
Q

What are the elements of Mutual Assent?

A
  1. Offer: A manifestation of present intent to contract, with definite and reasonably certain terms, that is communicated to the offeree.2. Acceptance: A manifestation of assent to the terms of the offer, which indicates a commitment to be bound.Priority: HIGH
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27
Q

When is an offer Terminated?

A

Offers may be terminated before acceptance by:* Revocation by offeror;* Rejection or Counter-offer by offeree;* Lapse of time;* Death / Incapacity of either party; OR* Supervening illegality.Priority: HIGH

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28
Q

When may an offer be revoked, and which types of offers are not revocable?

A

They may be revoked at any time before acceptance through unambiguous words/conduct indicating an unwillingness/inability to contract (effective when received).Irrevocable offers include: option contracts, a merchant’s firm offer, beginning performance for unilateral contracts, and offers that were relied on to the offeree’s detriment.Priority: HIGH

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29
Q

What is a Merchant’s Firm Offer?

A
  1. An offer to buy or sell goods;2. By a merchant;3. In a signed writing;4. Which states that the offer will be held open and is not revocable; AND5. The assurance to keep the offer open must be signed separately by the offeror.*Enforceable WITHOUT consideration.Priority: HIGH
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30
Q

Rejection vs. Counteroffer

A

Rejection: Manifestation of intent to not accept an offer (words/conduct) which terminates the offer. Offers CANNOT be accepted after they have been rejected.Counteroffer: Both a rejection that terminates the original offer and a NEW offer.Priority: HIGH

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31
Q

What is the Mirror Image Rule and UCC exception?

A

The common law Mirror Image Rule holds that an acceptance MUST exactly mirror the offer.UCC Art. 2 Exception: The acceptance DOES NOT need to mirror the offer, and additional terms may be added. Additional terms are included if:1. Both parties are merchants;2. The term is not a material change;3. The offer doesn’t limit acceptance to the exact terms; AND4. No objection was made within a reasonable time.Priority: Medium

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32
Q

When is an agreement deemed Indefinite?

A

When the terms of the agreement are NOT certain (they cannot be ascertained to a reasonable degree of certainty), the contract is deemed indefinite and is unenforceable.*A contract that is indefinite as to duration is generally invalid.Priority: Medium

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33
Q

What is Consideration?

A

A bargained for exchange of a promise for a return promise or performance (that benefits the promisor or causes detriment to the promisee).*Past or moral consideration is NOT sufficient to support a contract.Priority: HIGH

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34
Q

When does Promissory Estoppel apply?

A

Applies when:1. A party reasonably and foreseeably relied to his detriment on the promise of the other party;2. The promisor should have reasonably expected a change in position in reliance of the promise; AND3. Enforcement of the promise is necessary to avoid injustice.Priority: HIGH

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35
Q

Settlement of Legal Claims

A

The voluntary relinquishment of some known right or privilege.*Constitutes valid consideration.Priority: Medium

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36
Q

What is the Common Law Pre-Existing Duty Rule?What are the exceptions?

A

Past performance or performance of a pre-existing duty is NOT adequate consideration.Exceptions:* If there is an addition or change in performance or promise;* Unforeseen circumstances – a fair and equitable modification is made due to unanticipated changed circumstance AND the contract is not yet fully performed by either party; OR* Third-party promise – the duty was owed to a third-person, not the promisor.Priority: HIGH

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37
Q

Is consideration required for a modification to a UCC Art. 2 sale of goods contract?

A

NO, consideration is not required for contract modifications made in good faith.BUT, the modification must be in writing if:* It falls within the Statute of Frauds; OR* The original contract states that modifications must be in writing.Priority: HIGH

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38
Q

_Duress_Physical Compulsion vs. Economic Duress

A

Physical Compulsion: If a person physically compels a person to agree to contract, then the contract is void.Economic Duress: If a person makes an improper threat that induces a party (who has no reasonable alternative but to enter into the contract), then the contract is voidable.*A mere threat to breach is generally insufficient)Priority: Medium

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39
Q

Undue Influence occurs when?

A

There is:1. Unfair persuasion of a person,2. Who is either: * Under the domination of the person exercising the influence; OR * Justified in assuming that the person will not act in a manner inconsistent with his welfare because of his relationship between them (i.e. parent/child).Priority: Medium

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40
Q

Mutual Mistake vs. Unilateral Mistake

A

Mutual Mistake: When (1) both parties are mistaken as to the basic assumption on which the contract is made, (2) the mistake is material to the contract, AND (3) the person asserting the mistake did not bear the risk of the mistake.Unilateral Mistake: A mistake by one party, that is unknown to the other party, concerning a basic assumption that has a material effect on the contract.Priority: Medium

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41
Q

Fraudulent Misrepresentationvs.Non-Fraudulent Misrepresentation

A

Fraudulent: When one party knowingly makes a false representation of a fact AND the other party reasonably relies on the misrepresentation to their detriment.Non-Fraudulent: When there is a statement of material fact by a party or agent that is false, inducing the contract, AND the other party reasonably relies on the misrepresentation to his detriment.Priority: Medium

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42
Q

Procedural Unconscionabilityvs.Substantive Unconscionability

A

Unconscionability usually occurs if the contract/term is BOTH substantively and procedurally unconscionable.Procedural: When one party to the contract has a superior bargaining position over the other, and uses that power to their advantage.Substantive: When the contract contains terms that are obviously unfair and one-sided in favor of the person with the superior bargaining power.Priority: Medium

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43
Q

Under the Statute of Frauds, which types of contracts require a signed writing to be valid?

A
  1. Marriage contracts.2. Suretyships (unless the main purpose exception applies).3. Contracts that cannot be fully performed in 1 year.4. Contracts for the sale of real property (or creating an interest in real property).5. Promises to pay an estate’s debt from the personal funds of the Executor/Administrator.6. Contracts for the sale of goods for $500 or more.Priority: HIGH
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44
Q

Contracts for the sale of goods for $500 or more MUST be in writing.What are the four exceptions to this rule?

A
  1. Merchant’s Confirmatory Memorandum.2. Goods accepted or Paid for.3. Custom Made Goods.4. Admission during judicial proceeding.Priority: HIGH
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45
Q

What satisfies the writing requirement under the Statute of Frauds?

A

The writing MUST:1. Be signed by the party to be charged;2. Identify the subject matter of the contract;3. Indicate that a contract has been made by the parties; AND4. State the essential terms with reasonable certainty.*An agreement DOES NOT need to be in one writing, it may consist of several writings.Priority: HIGH

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46
Q

What are Expectation Damages?When are they recoverable?

A

They arise directly from the breach, and are an attempt to put the non-breaching party in the same position it would have been in but for the breach.To recover, the damages must be:1. Caused by the defendant;2. Foreseeable;3. Certain; AND4. Unavoidable.Priority: HIGH

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47
Q

What are Consequential Damages?When are they recoverable?

A

They arise indirectly from the breach, and are awarded because of the injured party’s special circumstances.To recover, the damages must be:1. Reasonably foreseeable at the time of contract formation;2. Arise from the plaintiff’s special circumstances that the defendant knew or had reason to know of; AND3. Reasonably certain (not speculative).Priority: HIGH

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48
Q

Under the UCC, what remedies does a seller have if a buyer breaches a contract for the sale of goods?

A
  • Withhold delivery of the goods;* Cancel;* Recover cover damages;* Recover market damages;* Recover lost profits if the seller is a lost volume seller;* Stop delivery of the goods when he discovers buyer is insolvent;* Stop delivery of a truckload when buyer breaches; OR* Replevy identified goods.Priority: HIGH
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49
Q

Cover Damagesvs.Market Damagesvs.Loss-in-Value Damages

A

Cover: Difference in price between the contact price and price of substitute goods.Market: Difference between the market price and contract price (used if buyer did not cover in good faith or at all).Loss-in-Value: Difference between the value as promised and the value of the non-conforming goods (used if buyer keeps the non-conforming goods).Priority: HIGH

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50
Q

When will the Waste Doctrine apply?

A

IF:1. The contractor performs in good faith, but defects nevertheless exist; AND2. Remedying the defects greatly exceeds the value of the completed work.*In this instance, the decrease in value becomes the proper measure of damages.Priority: HIGH

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51
Q

When is Restitution awarded?

A

It is awarded to prevent unjust enrichment, and is available when one party confers a benefit to another party.Damages will be awarded based on the value of the benefit conferred.Priority: HIGH

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52
Q

What is Rescission?

A

Recession treats the contract as canceled.*It is available if there was a problem with contract formation (defense to formation, fraud, misrepresentation).Priority: Medium

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53
Q

When will a contract NOT be rescinded?

A

IF:* A valid equitable defense applies; OR* The plaintiff sued for damages under the contract in a prior action.Priority: Medium

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54
Q

What is a Fee Simple Absolute?

A

A conveyance of absolute ownership of real property. The property is freely _devisable, descendible, and alienable._Priority: Medium

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55
Q

What is a Fee Tail?

A

A conveyance of real property to a person AND their heirs.*Most states have abolished fee tail ownership.Priority: Medium

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56
Q

What is a Fee Simple Defeasible, and when is it created?

A

A conveyance of property that has conditions placed on it.It is created when the grantor uses express conditional language to indicate that it will be terminated upon the occurrence/non-occurrence of an event or condition.Priority: HIGH

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57
Q

What are the three types of Fee Simple Defeasibles?

A

Fee Simple Subject to a Condition Subsequent – reserves a future interest in the grantor (right of re-entry).Fee Simple Determinable – reserves a future interest in the grantor (possibility of reverter).Fee Simple Subject to Executory Interest – reserves a future interest in a third-party.Priority: HIGH

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58
Q

What is a Life Estate?

A

A conveyance of real property where a specified life-tenant is entitled to possession of the property during their lifetime.Upon the life tenant’s death, the property transfers outright to another party (the remainderman).Priority: Medium

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59
Q

Possibility of Reverter vs. Right of Re-entry

A

Possibility of Reverter: Creates a future interest of possession in the grantor if a specified condition occurs (property automatically vests to the grantor upon occurrence of the condition).Right of Re-entry: Creates a future interest in the grantor, wherein the grantor has the right to re-enter and take the property if a specified condition occurs.Priority: HIGH

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60
Q

Vested Remainder vs. Contingent Remainder

A

Vested remainder: A future interest in land that is given to an identifiable person with NO conditions.Contingent remainder: A future interest in land that is conditioned upon the occurrence (or non- occurrence) of a specific event.*In most jurisdictions, a future remainder interest is devisable and passes to that person’s heirs.Priority: HIGH

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61
Q

What is Tenancy in Common?

A

The default estate created by a conveyance/bequest of real property to two or more people, unless:* There is express language stating that the parties have survivorship rights (joint tenancy); OR* If the conveyance stated “as husband and wife” (creating a tenancy by the entirety).*Each tenant has an undivided interest and the right to use and enjoy the property.Priority: Medium

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62
Q

What Four Unities must be present for a Joint Tenancy to be created?

A
  1. The unity of time;2. The unity of title;3. The unity of interest; AND4. The unity of possession.There must be clear and express intent to create a joint tenancy.Priority: Medium
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63
Q

Under what circumstances can an out-of-possession co-tenant collect rent from an in-possession co- tenant (who is in exclusive possession of the property)?

A

When:* There is an agreement stating as such; OR* The co-tenant seeking rent was wrongfully ousted.Priority: Medium

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64
Q

When is a co-tenant entitled to reimbursement from other co-tenants for improvements made to the property?

A

ONLY IF there is a separate agreement stating as such.BUT, if the property appreciated due to the improvements, only the improving co-tenant is entitled to the increase in value.Priority: Medium

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65
Q

A lease provides the tenant with a present possessory interest in the property, and gives the landlord a future interest.What are the three types of Leaseholds?

A
  1. Tenancy for Years – fixed period of time, automatically terminates;2. Periodic Tenancy – initial period of time, then automatically continues for additional equal periods until terminated by proper notice.Created by: express agreement, implication, or by law.1. Tenancy at Will – continues until either party terminates it, usually created by express agreement.Priority: HIGH
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66
Q

What may a Landlord do if a Tenant remains on the property and does not pay rent?

A
  • Initiate eviction proceedings; OR* Allow the tenant to remain on the property, and sue for damages.Priority: Medium
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67
Q

What are the Landlord’s two options if a tenant holds over?

A

He may:* Evict the tenant; OR* Hold the tenant over (by holding the tenant over, an implied month-to-month tenancy is created).Priority: Medium

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68
Q

What is the Warranty of Habitability?What can the Tenant do upon breach?

A

It’s implied in EVERY residential lease, and requires the Landlord to provide a place to live that is habitable (reasonably suitable for human needs).If breached, the Tenant may:* Move out and terminate the lease;* Withhold or reduce the rent;* Repair the issue and deduct the cost from the rent; OR* Remain on the premises and sue for damages.Priority: Medium

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69
Q

When does Constructive Eviction occur?

A

When:1. The landlord breached a duty to the tenant;2. The landlord’s breach caused a loss of the substantial use and enjoyment of the premises;3. The tenant gave the landlord notice of the condition;4. The landlord failed to remedy it in a reasonable time after notice was given; AND5. The tenant vacated the premises.Priority: HIGH

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70
Q

Does a Landlord have a duty to mitigate his damages?

A

At common law, a landlord DID NOT have a duty to mitigate.BUT, now most states DO impose a duty to take reasonable steps to mitigate losses (i.e. attempting to lease to another tenant).*Mitigation doesn’t need to be successful to recover damages, and a landlord is entitled to sue for the difference in rent between the new and original tenant.Priority: HIGH

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71
Q

_Assignment of a Lease_When does an Assignment occur, and who is liable to the Landlord for rent thereafter?

A

It occurs when the assignor transfers ALL of his remaining interest in a lease to a third-party (the assignee).Assignee → liable to the landlord for rent and all other covenants that run with the land (privity of estate).Assignor (Original Tenant) → also remains liable for rent (privity of contract).Priority: HIGH

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72
Q

_Assignment of a Lease_When a lease has a Silent Consent Clause, what two approaches have been adopted by state courts to determine how consent is given?

A

Most States, allow the landlord to withhold consent for any reason (even if unreasonable).Some States, require the landlord to have a reasonable basis for withholding consent.For example: Inability to fulfill lease terms, financial irresponsibility, instability, etc.Priority: Medium

73
Q

What is a Sublease?Is a Sublessee liable to the Landlord for rent?

A

A sublease occurs when a sublessor transfers only SOME of his remaining interest in a lease to a third-party.Sublessee → is NOT liable to the landlord for rent or other covenants (there is no privity of estate).* Sublessor (original tenant) → remains liable to landlord for rent (privity of contract).Priority: Medium

74
Q

_Termination of Leases_What is a Surrender?

A

An agreement between the landlord and the tenant to end a lease early.If accepted, the tenant’s duty to pay rent ends. If not accepted and the tenant leaves anyway, they are deemed to have abandoned the lease and are liable for damages.Priority: HIGH

75
Q

What is a Real Covenant?

A

A non-possessory interest in land that obligates the holder to either do something or refrain from doing something to the land.(The remedy is damages, unlike equitable servitudes)Priority: Medium

76
Q

What must be present to enforce the benefit of a Real Covenant?

A

There must be:1. A writing that satisfies the statute of frauds;2. Intent that the covenant runs with the land;3. Vertical privity between succeeding parties; AND4. The covenant must touch and concern the land.Priority: Medium

77
Q

What must be present to enforce the burden of a Real Covenant?

A

All of the requirements for enforcing the benefit PLUS:1. Horizontal privity between the original parties; AND2. The new owner must have notice of the covenant (actual, constructive, or inquiry notice).Priority: Medium

78
Q

What is an Equitable Servitude?

A

Covenants that equity will enforce if the burdened estate had notice of the covenants.(The remedy is injunctive relief, rather than damages)Priority: Medium

79
Q

What must be present to enforce the benefit of an Equitable Servitude?

A

There must be:1. A writing that satisfies the statue of frauds;2. Intent for the servitude to be enforceable; AND3. The servitude must touch and concern the land.Priority: Medium

80
Q

What must be present to enforce the burden of an Equitable Servitude?

A

All of the requirements for enforcing the benefit, PLUS:1. The new owner must have notice of the servitude (actual, constructive, or inquiry notice).Priority: Medium

81
Q

What is the Common Scheme or Plan Doctrine?

A

A court will imply reciprocal restrictive covenants on parcels of land in a subdivision sold by a developer if:1. The developer had a common scheme or plan that all parcels of land would be subject to at the time the subdivision was sold; AND2. The defendant land owner had actual, inquiry, or record notice of the restriction.Priority: Medium

82
Q

What is a Common Interest Community (CIC)?

A

A development or neighborhood in which individually owned lots are burdened by a servitude that imposes an obligation to:* Pay for or contribute to the maintenance held in common by the individual owners; OR* Pay dues or assessments to an association that provides services to the common areas or enforces the servitudes.*CIC’s include Condo’s, Co-ops, and Home Owner Associations.Priority: Medium

83
Q

_Easements_Easement in Gross vs. Easement Appurtenant

A

Easement in Gross: Benefits a specific owner’s enjoyment, and DOES NOT attach to the land. Doesn’t pass to subsequent owners.Easement Appurtenant: Benefits ANY owner’s enjoyment, and DOES attach to the land. Passes to subsequent owners.Priority: HIGH

84
Q

_Easements_What is an Easement by Grant?

A

An express agreement by the grantor allowing the easement, which must:1. Be in writing signed by the grantor and satisfy the statute of frauds;2. Identify the land and parties involved; AND3. Indicate the grantor’s intent to convey the easement.Priority: HIGH

85
Q

_Easements_What is an Easement by Prescription?

A

It’s created when the possessor’s use of the land is:1. Open and notorious;2. Continuous;3. Hostile; AND4. For the statutory period.Priority: HIGH

86
Q

_Easements_What is an Easement by Implication?

A

It’s established when:1. A single tract of land is divided by a common owner;2. A pre-existing use by the grantor is established prior to the land division;3. The use was continuous and apparent indicating it was intended to be permanent; AND4. Such use is reasonably necessary for the owner’s use.Priority: HIGH

87
Q

_Easements_What is an Easement by Necessity?

A

It’s created when:1. The original piece of land owned by the one owner is subdivided; AND2. Access is essential to the use of the property because no other ingress or egress is available.Priority: HIGH

88
Q

_Easements_What are the ways an Easement can be Terminated?

A
  1. Estoppel;2. Termination of the necessity that created the easement;3. Involuntary destruction of the servient estate;4. Condemnation of the servient estate;5. Written release;6. Abandonment;7. Merger; OR8. By prescriptionPriority: HIGH
89
Q

What is a License?

A

It is a privilege to use another’s land in a particular way.It doesn’t need to be in writing, and may be revoked at any time (although a licensor may be estopped from revoking it if the licensee invested money/labor in reasonable reliance).Priority: Medium

90
Q

What is a Fixture?(under the Common Law)

A

A fixture is:1. Personal property,2. That is attached to land or a building, AND3. Regarded as an irremovable part of the real property.*A fixture is treated as real property, and passes with the ownership of the land (unless otherwise agreed).Priority: HIGH

91
Q

What factors are considered to determine if an item is a Fixture?

A
  1. The nature of the item;2. The manner in which it’s attached;3. The damage that would result if removed; AND4. The extent to which the item is adapted to the property.*Whether an item is a fixture is determined by the objective intent of the party who attached the item.Priority: HIGH
92
Q

What are the elements of Adverse Possession?

A

It allows someone who is in possession of land, owned by another, to acquire title when the possession of the property is:1. Continuous for the statutory period (i.e. 10 yrs);2. Open and notorious;3. Exclusive;4. Actual; AND5. Hostile and under a claim of right.*An adverse possessor can only acquire title to the portion of the land he has met all the requirements on.Priority: HIGH

93
Q

What is Constructive Adverse Possession?

A

When a person takes possession of only a portion of the land covered under color of title → that possession extends to the entire portion of the land described in the title for adverse possession purposes.Priority: HIGH

94
Q

What are the elements of a valid Land Sale Contract?

A

The contract must:1. Be in writing;2. Describe the property;3. Identify the parties involved;4. Contain the purchase price; AND5. Be signed by the grantor/grantee (depending on who the contract will be enforced against).Priority: Medium

95
Q

What is Marketable Title?

A

A title that is FREE from any cloud or subject to any adverse claims.Title is unmarketable when it contains a substantial defect (such as encumbrances, mortgages, liens, etc.).Priority: Medium

96
Q

What is the Equitable Conversion Doctrine?

A

It splits ownership between the buyer and the seller. The buyer has equitable title, while the seller has legal title and holds the property in trust for the buyer.*The buyer’s ownership is considered real property, while the seller’s is considered personal property.Priority: Medium

97
Q

What does a “time is of the essence” clause ensure?

A

It ensures that the buyer MUST perform on the closing date.If the buyer fails to perform, it will be deemed a material breach and the seller may keep the buyer’s down payment as liquidated damages.Priority: Medium

98
Q

When is Specific Performance appropriate?

A

When monetary damages will not fully remedy a party’s complaint.Real property is ALWAYS considered unique, and specific performance is ALWAYS an appropriate remedy.Priority: Medium

99
Q

What is a Home Builder’s Implied Warranty?

A

A warranty that protects a purchaser of a newly constructed home against latent defects, AND warrants that the building is safe and fit for human habitation at the time of sale.Priority: HIGH

100
Q

What are the requirements of a valid Deed?

A

A valid Deed must:1. Be in writing;2. Be signed by the grantor;3. Identify the grantor and grantee;4. Describe the property; AND5. Indicate the grantor’s present intent to convey the land.Priority: Medium

101
Q

What are the six covenants of a General Warranty Deed?

A

The three present covenants are:1. Seisin;2. Right to convey;3. Against encumbrances.The three future covenants are:1. Warranty;2. Quiet enjoyment;3. Further assurances.Priority: HIGH

102
Q

What is a Special Warranty Deed?

A

It ONLY warrants that the seller has not breached the covenants of title during his period of ownership (that the seller hasn’t previously conveyed the property and there are no encumbrances against the title).Priority: HIGH

103
Q

What is a Quitclaim Deed?

A

A deed that DOES NOT contain any covenants or promises to the buyer. It’s an “AS IS” deed leaving the buyer with NO rights to sue.Priority: HIGH

104
Q

What happens if a land transfer is NOT recorded?

A

It is considered a “wild” deed and is effective between the parties, but will NOT put subsequent purchasers on constructive notice because it’s outside the chain of title.Priority: HIGH

105
Q

What are the three types of Recording Statutes?

A
  1. A notice statute – a subsequent bona fide purchaser will prevail over prior grantee that failed to record.2. A race statute – whomever records first prevails.3. A race-notice statute – a subsequent bona fide purchaser is protected ONLY if he records before the prior grantee.Priority: Medium
106
Q

What is a Bona Fide Purchaser (BFP)?

A

A person who:1. Takes real property without notice of a prior conveyance;AND2. Pays valuable consideration.*Receipt of land by gift or bequest does not constitute BFP status.*Shelter rule: a person who purchases from a BFP receives the same status and rights as a BFP.Priority: HIGH

107
Q

Who must sign the deed?

A

The grantor of the real property MUST sign the deed, BUT they may designate an agent to sign on their behalf.If an entity is the grantor, then authorized persons must sign the deed on behalf of the entity.The grantee is NOT required to sign.Priority: Medium

108
Q

What is required for a valid Mortgage?

A

It must be:1. In writing;2. Signed by the party to be charged; AND3. Reasonably identify the parties and the land.Priority: Medium

109
Q

What is a Purchase Money Mortgage?

A

When the seller is the lender who secures the mortgage on the real property.The buyer of the property is the borrower.Priority: Medium

110
Q

Who does the holder of a Purchase Money Mortgage have priority over?

A
  1. All claims and mortgages against the mortgagor prior to the purchase of the property;2. ALL subsequent claims and mortgages, unless defeated by a recording statute.Priority: Medium
111
Q

What is a Future Advance Mortgage?

A

A loan in which the lender may provide future payments under the original loan.The lender secures a mortgage on the real property for the entire amount of the loan, including future advances.Priority: HIGH

112
Q

What parties are involved in a Deed of Trust?

A
  1. The borrower;2. The lender; AND3. A third-party trustee who holds title to the property until the loan is paid off.Priority: Medium
113
Q

Express vs. Implied Mortgage Assumption

A

Express Assumption: There is an express agreement for the grantee to take the real property and continue making payments to the lender.Implied Assumption: No express agreement exists; the grantee pays the seller only the equity in the home, and the grantee continues making payments to the lender for the balance.Priority: Medium

114
Q

What is a Variance?When may it be granted?

A

It is an exception to a zoning ordinance, and two types exist:1. Use variance;2. Area variance.It may be granted if: (1) the owner suffers a hardship because of the ordinance; AND (2) the variance would NOT damage or harm the public welfare.Priority: Medium

115
Q

_Conflict of Laws_What is the situs rule for Real Property actions?

A

That the laws of the state where the real property is located will generally govern (i.e. cases involving the title or a contract for the sale of real property).*States have a strong interest in actions that affect real property within their state.Priority: Medium

116
Q

What are the three Real Property conflict of laws tests?

A
  1. 1st Restatement – Situs rule – the laws of the state where the real property is located will govern.2. 2nd Restatement – The state with the Most Significant Relationship to the property will govern. The situs state is presumed to have the most significant relationship.3. Interest Analysis Test – Situs rule will apply UNLESS another state has a greater interest in having their law applied.*Apply the test that has been adopted by the jurisdiction.Priority: Medium
117
Q

When Real Property is incidental to a contract, what tests are used to determine the applicable law?

A

Apply the conflict of laws principles for Contracts.Priority: Medium

118
Q

When is evidence Relevant?

A
  1. When it has any tendency to make a fact more or less probable than it would be without the evidence;AND2. The fact is of consequence in determining the action.Priority: HIGH
119
Q

_Rule 403 Exclusions_A court may exclude evidence if its probative value is substantially outweighed by a danger of what?

A
  • Unfair prejudice;* Confusing the issues;* Misleading the jury;* Undue delay;* Wasting time; OR* Being needlessly cumulative.Priority: HIGH
120
Q

When is evidence Unfairly Prejudicial?

A

When the evidence is:1. Unnecessary;AND2. Might cause the jury to improperly sympathize or dislike a party.Priority: HIGH

121
Q

When is evidence of Subsequent Remedial Measures NOT admissible?

A

To prove:* Negligence;* Culpable conduct;* A defect in product or design; OR* A need for a warning or instruction.*But, it may be admissible to impeach or prove a disputed issue of ownership, control, or feasibility of precautionary measures.Priority: HIGH

122
Q

When are Settlement Offers and statements made during Settlement Negotiations NOT admissible?

A
  • To prove the validity or amount of a disputed claim (claim must be filed or threatened); OR* To impeach by a prior inconsistent statement or contradiction.*It may be admitted to: prove bias/prejudice of a witness, negate a contention of undue delay, or prove obstruction in a criminal matter.Priority: Medium
123
Q

What Pleas and Plea Negotiations are NOT admissible in a subsequent civil or criminal case?

A
  1. Statements made during plea discussions.2. A nolo contendere plea.3. A defendant’s guilty plea that was later withdrawn.4. Statements made during a proceeding for (a) nolo contendere plea, or (b) later withdrawn guilty plea.Priority: Medium
124
Q

Evidence of paying or promising/offering to pay for medical expenses or bills is NOT admissible to prove what?

A

Liability(even if there is no disputed claim)*However, any related statements or factual admissions ARE admissible.Priority: Medium

125
Q

Evidence of Liability Insurance is NOT admissible to prove what?

A

Culpability(that a person acted negligently or wrongfully)*However, a court may admit it for another purpose (e.g. proving bias/prejudice of witness, agency, ownership, control, or motive).Priority: Medium

126
Q

Physical evidence may be Authenticated through what means?

A
  • Witness testimony; OR* By evidence that shows it has been held in a substantially unbroken chain of custody.Priority: Medium
127
Q

Voice recordings may be Authenticated by whom?

A

By anyone who:1. Has heard the person speak (either firsthand or electronically);AND2. Identified the recorded person as the speaker.Priority: Medium

128
Q

What is the Best Evidence Rule?

A

The original writing, recording, or photograph is required to prove its content, unless:* It is a reliable duplicate;* All of the originals are lost or destroyed (not by the proponent acting in bad faith);* An original cannot be obtained by judicial process;* It was not produced after proper notice was given; OR* It is not closely related to a controlling issue.Priority: Medium

129
Q

_Character Evidence_Character evidence may be offered as circumstantial evidence to prove propensity (that a person acted in conformity with the character trait) in what limited circumstances?

A
  1. Criminal cases – by defendant OR by prosecution if the defendant “opens the door”.2. Victim’s character (in non sex-offense cases) – to prove defendant’s innocence; prosecution may rebut.3. Homicide cases – by defendant to show self-defense, prosecution may offer evidence of victim’s character for peacefulness if defendant claims victim was aggressor.4. Sex offense cases – not admissible, unless exceptions apply.5. Civil cases – only if sex offense cases exception applies.Priority: HIGH
130
Q

_Character Evidence_What are the exceptions in Sex Offense Cases that allow character evidence (to prove a victim’s sexual behavior or predisposition) to be admissible?

A
  1. Civil cases: If its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party. (Evidence of the victim’s reputation is admitted only if the victim placed it in controversy).2. Criminal cases: If offered to prove the defendant was not involved in the sex crime, to prove consent, if offered by the prosecution, OR if exclusion would violate the defendant’s Constitutional rights.Priority: HIGH
131
Q

_Character Evidence_How may character evidence be proven?

A

By Reputation or Opinion — In all instances.By Specific Acts/Instances — Only allowed: a) on Cross-Examination of a character witness; OR b) if “Character in Issue”.*Note: Special rules apply to evidence of a Victim’s Character in Sex-Offense cases.Priority: HIGH

132
Q

Prior Bad Acts may be admissible for NON-PROPENSITY purposes, such as?

A

Proving:* Motive;* Identity;* Absence of mistake or accident;* Intent;* A common plan or scheme;* Opportunity;* Preparation; OR* Knowledge.Priority: HIGH

133
Q

What must a proponent show in order to offer Prior Bad Acts as evidence?

A
  1. That the prior act was committed by a preponderance of the evidence (vague references are insufficient);2. That its probative value substantially outweighs the danger of unfair prejudice; AND3. Proper notice (in criminal cases).Priority: HIGH
134
Q

When is evidence of a person’s Habit or an organization’s Routine Practice admissible?

A

To prove that on a particular occasion the party acted in accordance with the habit or routine practice.*This may be admitted regardless of corroboration or eyewitnesses.Priority: HIGH

135
Q

Extrinsic Evidence of Prior Inconsistent Statements are only admissible to impeach, if it’s what?

A
  1. Relevant to a material issue at trial (other than the witness’s credibility);AND2. A proper foundation is shown (witness is given a chance to explain/deny, and the adverse party is given a chance to examine the witness about it).*BUT, the above limitation is NOT applicable to statements by a party opponent.Priority: Medium
136
Q

Evidence of prior convictions may be admissible to attack a witness’s character for truthfulness in which instances?

A
  1. Prior felony or misdemeanor convictions involving dishonesty – a dishonest act or false statement.2. In Felonies that DO NOT involve dishonesty when: * The witness is not a criminal defendant (criminal/civil); * In a criminal case where the witness IS a defendant, BUT the probative value outweighs the prejudicial effect.*A felony is a crime punishable by death or imprisonment over 1-year.*Evidence of a conviction is NOT admissible if it has been pardoned/annulled on a finding of innocence.Priority: HIGH
137
Q

In what circumstance may a witness’s credibility be attacked on cross-examination with specific instances of conduct (i.e. prior bad acts)?

A

Only when:The conduct is probative of the witness’s character for truthfulness or untruthfulness.**BUT, extrinsic evidence is NEVER admissible to attack/support such instances of a witness’s credibility.Priority: HIGH

138
Q

How can a witness’s Character for Truthfulness (credibility) be attacked or supported?

A

By:* Reputation testimony about the witness’s character for truthfulness or untruthfulness in the community; OR* Opinion testimony about the witness’s character.**Evidence of truthful character is only admissible AFTER the witness’s character for truthfulness has been attacked.Priority: Medium

139
Q

May a witness’s ability to observe, remember, or relate facts accurately be attacked on impeachment?

A

YES, a witness may be impeached on these issues on:* cross-examination; OR* with extrinsic evidence.Priority: Medium

140
Q

How may a hearsay declarant’s credibility be impeached (when a hearsay statement has been admitted into evidence)?

A

By any evidence that would be admissible if the declarant had testified as a witness.*A court may admit evidence of inconsistent statements/conduct regardless of when the statement occurred or if the declarant had the opportunity to explain or deny it.Priority: Medium

141
Q

When is Refreshing a Witness’s Recollection using a document permitted?

A

When:1. The witness once had a personal knowledge of the matter,2. But is unable to recall the matter when testifying.**Only the opposing party may offer the document into evidence.Priority: HIGH

142
Q

When may a court take Judicial Notice?

A

When indisputable facts are either:* Commonly known in the community; OR* Readily capable of verification and cannot be reasonably questioned.Priority: Medium

143
Q

What is a Lay Witness?When is Lay Witness testimony admissible?

A

Any person who gives testimony in a case that is NOT called as an expert. Their testimony is admissible if they are competent to testify (competency is presumed under the FRE).They must take an oath to tell truth and only testify to matters of personal knowledge.Priority: HIGH

144
Q

When may a Lay Witness offer an opinion?

A

If it is:1. Rationally based on the witness’s perception;2. Helpful to clearly understand the testimony or to determine a fact in issue;AND3. Not based on scientific, technical, or other specialized knowledge.Priority: HIGH

145
Q

When is Expert Witness testimony permitted?

A

When the:1. Witness is qualified as an expert;2. Testimony is helpful to the trier of fact;3. Testimony is based on sufficient facts/data;4. Testimony is based on reliable principles/methods; AND5. Witness reasonably applied the principles/methods to the facts of the case.Priority: HIGH

146
Q

_Expert Testimony_What is reliability based on?

A

On the methodology’s:1. Testability;2. Publication & Peer Review;3. Error Rate;4. Standards & Controls; AND5. Whether it’s generally accepted in the field.Priority: HIGH

147
Q

What are the elements of Conspiracy?

A
  1. An express or implied agreement between two or more people;2. Intent to enter into the agreement;3. Intent to pursue an unlawful objective; AND4. The commission of an overt act in furtherance of the unlawful objective.*Co-conspirators are liable for both the conspiracy itself AND all foreseeable crimes committed by other conspirators in furtherance of the objective.Priority: Medium
148
Q

What are the elements of Solicitation?

A

A person is guilty if:1. He requests another person to commit a crime;2. With the specific intent that the crime be committed; AND3. The other person receives the request.Priority: Medium

149
Q

Who is an Accomplice?What are they liable for?

A

An accomplice is a person who:1. Aids, abets, or facilitates the commission of a crime; AND2. Has dual intent (intent to assist and intent the crime is committed).An accomplice is liable for ALL crimes he committed/assisted, AND all foreseeable crimes committed by the principal.Priority: Medium

150
Q

What limitations exist to Accomplice liability?

A

First: Merely being present while a crime is committed will NOT create liability.Second: A person cannot be convicted if they are a member of the class of persons protected by the criminal statute OR the crime inherently involves several types of participants and the person is not criminally liable under the statute.Third: A minority of jurisdictions DO NOT allow accomplice liability for involuntary manslaughter.Priority: Medium

151
Q

When is Withdrawal a valid defense to Accomplice Liability?How is it accomplished?

A

It is valid ONLY if the accomplice withdraws involvement before the crime becomes unstoppable.It can be accomplished by either:* Repudiating the encouragement given; OR* Neutralizing the assistance.Priority: Medium

152
Q

When does the defense of Duress excuse a defendant’s conduct?

A

If the conduct was the result of:1. A threat of imminent death or serious bodily injury,2. To the defendant or another, AND3. The defendant reasonably believed he was unable to avoid the harm by non-criminal conduct.Priority: Medium

153
Q

What are the four Insanity tests?

A
  1. The M’Naghten test.2. The Model Penal Code test.3. The Irresistible Impulse test.4. The Durham test.*A defendant will be acquitted if he meets the applicable insanity test of his jurisdiction.Priority: HIGH
154
Q

_Insanity_What is the M’Naghten Test?

A
  1. A mental disease or defect; AND2. That resulted in being:* Unable to know the wrongfulness of the conduct; OR* Unable to understand the nature and quality of the acts.Priority: HIGH
155
Q

_Insanity_What is the Model Penal Code Test?

A

As a result of a mental disease or defect, the defendant was:* Unable to appreciate the criminality of the conduct; OR* Unable to conform his actions to the law.Priority: HIGH

156
Q

_Insanity_What is the Irresistible Impulse Test?

A

Defendant’s mental illness made him:* Unable to control his actions; OR* Unable to conform his actions to the law.Priority: HIGH

157
Q

_Insanity_What is the Durham Test?

A

Defendant must show that his unlawful conduct was the product of mental illness.Priority: HIGH

158
Q

The 11th Amendment prohibits a party from suing a state or state agency in federal court.What are the exceptions to this?

A
  • The state explicitly consents to waive its 11th Amendment protections;* The suit pertains to federal laws adopted under Section 5 of the 14th Amendment;* The suit seeks only injunctive relief against a state official for conduct in violation of the constitution or federal law; OR* The suit seeks money damages from a state official.Priority: HIGH
159
Q

When does a party have Standing to sue?

A

It exists when the plaintiff:1. Personally suffered an injury in fact;2. The injury was caused by the defendant; AND3. The injury is redressable by a court order.Priority: Medium

160
Q

Third-Party Standingvs.Organizational Standing

A

Third-party: NOT permitted, but exceptions are made when there is a close relationship between the plaintiff and 3rd party – if it would be difficult for the 3rd party to assert their rights or if the 3rd party is an organization.Organizational: An organization has standing to sue on behalf of their members if (1) the suit is related to an issue that is germane to the organization’s purpose, (2) the members would have standing to sue, and (3) the member’s participation is not necessary.Priority: Medium

161
Q

What does Ripeness refer to?

A

Whether a case is ready to be litigated.A case is ripe for review when there is actual harm or an immediate threat of harm to the plaintiff.Priority: Medium

162
Q

What does Mootness refer to?

A

To instances when the dispute has ended or was resolved before review.A court may hear a case that has ended/resolved when:* The wrong alleged is capable of being repeated and escaping review;* The defendant voluntarily stops an offending practice but can resume it any time; OR* In a class action.Priority: Medium

163
Q

What powers does the President have?

A
  1. Faithfully execute the law;2. Appoint ambassadors, public ministers, consuls, supreme/federal court judges, and other officers;3. Appoint inferior officers (when the power is given to him by Congress);4. Remove cabinet level appointees;5. Enter into executive agreements w/o senate approval;6. Pardon federal crimes; AND7. Control troops as Commander in Chief.Priority: Medium
164
Q

When is a defendant liable for Trespass to Land?

A
  1. When he intentionally,2. Either:* Enters the land in possession of another;* Causes an object/third-person to enter;* Remains on the land; OR* Fails to remove an object he is under a duty to remove.*Intent to trespass is NOT required.Priority: Medium
165
Q

When is a person liable for Trespass to Chattels?

A

When he:1. Intentionally interferes with another’s personal property,AND2. The amount of damage is small.Priority: Medium

166
Q

When is a person liable for Conversion?

A

When he:1. Intentionally interferes with another’s personal property,AND2. The amount of interference is substantial.*Defendant will be liable for full market value of item.Priority: Medium

167
Q

_Defamation_What are the elements of Defamation?

A
  1. A false defamatory statement,2. Of and concerning the plaintiff made by the defendant,3. Publication by a defendant to a third party, AND4. DamagesPriority: Medium
168
Q

_Defamation_What are the four Slander Per Se categories?

A
  1. Impugning the business integrity of the plaintiff.2. A statement of unchastity about an unmarried woman.3. A statement that the plaintiff had/has a loathsome disease.4. Attributing a crime of moral turpitude to the plaintiff.Priority: Medium
169
Q

_Defamation_Who is deemed a Public Figure?What heightened standard applies if plaintiff is a Public Figure or Public Official?

A

Public Figure = Either (a) injected himself into a public controversy; OR (b) having achieved widespread notoriety.If person is a Public Figure or Official, then a heightened defamation standard applies.P must also prove: Actual malice – D spoke with recklessness or knowledge of falsity.Priority: Medium

170
Q

_Defamation_If plaintiff is a Private Figure on a Matter of Public Concern, what standard applies?

A

Plaintiff MUST ALSO PROVE:That the speaker was negligent.Priority: Medium

171
Q

What are the Invasion of Privacy torts?

A
  1. Misappropriation of Name or Picture.2. False Light.3. Intrusion of Privacy.4. Public Disclosure of Private Facts.Priority: Medium
172
Q

What are the elements of Misappropriation of Name or Picture?

A

When defendant:1. Uses plaintiff’s name or likeness,2. For defendant’s commercial advantage.*Newsworthiness is a defense.Priority: Medium

173
Q

What are the elements of False Light?

A

When defendant:1. Causes widespread dissemination,2. Of plaintiff’s beliefs, thoughts, or actions,3. In a false light,4. That would be highly objectionable to a reasonable person.*If a matter of public concern or public figure → must show actual malice.Priority: Medium

174
Q

What are the elements of Intrusion of Privacy?

A

When:1. D intrudes into the private affairs of P;2. P has a reasonable expectation of privacy; AND3. The intrusion is highly objectionable to a reasonable person.Priority: Medium

175
Q

What are the elements of Public Disclosure of Private Facts?

A

When defendant:1. Caused widespread dissemination,2. Of truthful private information,3. That would be highly objectionable to a reasonable person.*Newsworthiness is a defense unless actual malice is present.Priority: Medium

176
Q

What are the elements of Intentional Interference with Business Relations?

A
  1. There was a contract or business expectancy;2. The defendant knows of the contract/expectancy;3. The defendant intentionally induces another party to breach or terminate the contract/relationship;4. A breach occurs; AND5. Plaintiff suffered damages.Priority: Medium
177
Q

What are the elements for Intentional Misrepresentation?

A

Plaintiff must show:1. Misrepresentation of material facts by the defendant;2. The defendant knew the statement was false;3. Intent of the defendant to induce the plaintiff;4. Actual and reasonable reliance by the plaintiff; AND5. Damages.Priority: Medium

178
Q

What are the elements for Negligent Misrepresentation?

A

Plaintiff must show:1. A misrepresentation by the defendant;2. Supplied for the guidance of others in a business transaction;3. The defendant knew that the information was supplied to guide the plaintiff in his business transactions;4. The defendant was negligent in obtaining/communicating the false information;5. Actual and reasonable reliance by the plaintiff; AND6. The false info proximately caused damages.Priority: Medium

179
Q

Public Nuisance vs. Private Nuisance

A

Public Nuisance: (1) an unreasonable interference, (2) with the health, safety, or property rights, (3) of the community.To recover the injured party must show ACTUAL damages.Private Nuisance: (1) a substantial and unreasonable interference, (2) with a person’s use/enjoyment of her property.Priority: Medium

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