MC Flashcards
Examples of political, nonjusticiable questions (because they’re committed by the Constitution to a different branch of government)
Political questions:
- Deployment of troops
- recognition of foreign governments
- Impeaching president or other federal officials
- Racial gerrymandering is justiciable, but partisan gerrymandering is considered a political question
Congress’s ability to regulate for general welfare
Congress is NOT allowed to create legislation “for general welfare”
But they have broad power to spend $$ for general welfare
Encumbrances?
Define & give examples
An encumbrance is a right or interest that exists in someone other than the owner of real property that restricts or impairs the transfer of property
Ex: mortgage/liens are encumbrances but if they’re paid off by closing (seller can use purchase price to pay off), then title is marketable
Ex: easements, covenants, purchase options
Quitclaim deed
Does seller still need to provide marketable title?
Yes
A sold land to B (who has title insurance), who sold land to C, who sold land to D (the current owner) with quitclaim deed.
D then discovered outstanding mortgage that predated all previous conveyances. Who can D sue?
D can sue B. And B can recover from title insurance company, even though B no longer owes the land.
If D sued insurance company directly, D would not get anything
Builder of new house sold to Buyer. Buyer sold to Woman. Woman found latent defects. If Woman sues successfully, who does she sue and why does she succeed?
Woman can sue the Builder and if she’s successful, it means they were in a jurisdiction where the implied warranty of habitability/fitness/quality of new home construction is enforceable by a subsequent purchaser
Equitable conversion
(owning vs. legal title)
This is about liability during the period between contract and closing.
When contract is signed, buyer is deemed the owner but seller still has “legal title.”
Legal title only transfer from seller to buyer at closing
Risk of loss
(equitable conversion - maj rule)
(uniform vendor and purchaser act - min rule)
“no applicable statute” = maj rule applies
MAJ RULE:
if property damaged prior to closing, risk of loss is imposed on the buyer. Buyer would have to cover any losses + pay purchase price to seller
Exceptions (aka when seller bears loss):
- if loss is caused by seller’s own negligence
- if at the time of loss, title was unmarketable
MIN RULE:
- places risk of loss on seller
Deed
definition and validity requirements
Document that serves to pass legla title from grantor to grantee when it is (1) lawfully executed and (2) properly delivered
Requirements:
- identification of the parties (cannot be “leaders of all churches in York County” which is too broad)
- in writing and signed by grantor. grantee need not sign
- words of present / actual intent
- adequate land description
- proper delivery (1.g. recording, physical delivery, third party delivery)
Delivery of deed and revocability
If grantor physically hands deed to grantee, title passes immediately to grantee and is not revocable.
- Doesn’t matter if grantor later asks grantee to destroy the deed.
- Or requests to delay the recording
- Handing deed back / tearing it up does not undo the conveyance of property through the deed
Consequences of defective deed to future BFP
Void/defective deed will be set aside even if transferred to a BFP.
- Void deed»_space; no BFP protection
Voidable deed will be set aside unless transferred to BFP.
- Voidable deed»_space; BFP protection
Estoppel by deed
AKA after-accquired title
If someone purports to convey an interest in real property that they don’t own at the time, but subsequently obtains title to the property, the property will automatically pass to the grantee once the grantor acquires title
Estoppel by deed only applies to transfer by warranty deed, not quitclaim deed
Ademption
When a testator devised property to a specific person in their will, but the property is no longer part of the estate at the time of testator’s death
Exoneration
When a person receives a bequest, and the property is subject to lien or mortgage, then the encumbrance will be paid off with estate’s personal property so that the recipient receives title free and clear of mortgage
Lapse & anti-lapse
Lapse occurs when the beneficiary named in a will ends up dying before the testator, and thus the bequest fails
Anti-lapse statutes allow the predeceased beneficiary’s heirs to receive the bequest
Wild deeds
Deed that is recorded outside the chain of title. Does NOT provide constructive notice because BFP wouldn’t be able to find it. .
Ex: Owner sells lot to Doctor. Doc does not record. Doc then sells to Surgeon and Surgeon records. Owner subsequently grants to Architect. Architect does not constructive notice
New owner’s responsibility over mortgaged property
Sale (or gift) “subject to” the mortgage
- Buyer is NOT personally liable for paying mortgage.
- Buyer is NOT personally liable for any deficiency in the case of a foreclosure
Assumption of mortgage
- Buyer agrees to be personally liable to original mortgagor/mortgagee for repayment of loan.
- Includes any deficiency if there’s a foreclosure
- original mortgagor still “secondarily liable” to the lender as a surety, unless there’s a “release of liability” from the lender
Due on sale clause
This requires a property owner who transfers ownership of the property to pay the ENTIRE loan balance to mortgagee in full.
aka loan cannot be “assumed” to a new owner
due on sale clauses ARE reasonable and enforceable (if you see “unreasonable restraint on alienation” as an ac, that’s wrong)
Lien Theory vs Title Theory for mortgages
Lien Theory (maj rule)
- Mortgagee / lender holds security interest only. Thus, they may not take possession before foreclosure
Title Theory (minority rule)
- Mortgagee/lender MAY take possession before foreclosure because mortgagee actually holds title until the loan has been paid or foreclosed.
Intermediate Theory
- upon default, legal title shifts to mortgagee/lender who can demand possession
Equitable redemption
(and the right to redeem)
Meaning the mortgagor is allowed to pay off the entire mortgage before the foreclosure
This right to redeem cannot be waived. “Clogging the equity of redemption” is not allowed
Statutory redemption
Some states allow this, which gives mortgagor opportunity for a fixed period after foreclosure (usually 6 months to 1 year) to “redeem” and pay off the amount due on mortgage
Joint tenancy
definition, creation, key features
When 2 or more people hold a single, unified interest in a property
Features:
- automatic right to survivorship
- equal right to posses whole property
- each JT owns property in equal shares
- any JT can unilaterally sever
Judgment lien does not sever joint tenancy.
What happens to the lien interest?
When the JT that has the lien against the dies, their interest evaporates and the judgment lien holder no longer attaches the property
But if the judgment lien is enforced by foreclosure, then the JT will be severed. Then property will be owned half to the judicial sale buyer and half to the original JT, as tenants in common
Accounting between co-tenants
Co-tenants have duty to pay their proportionate share of “carrying costs” (e.g. taxes and mortgage payments. Also required to pay for necessary repairs
Co-tenants have NO duty to improve the property
Profits from rents and profits from land depletion must be shared
Easement in gross
Holder of easement in gross gets “special use” of the property granted to them. This right is independent of ownership of another piece of land (e.g. holder of this easement doesn’t have to be a neighbor)
Ex: A particular person has permission to fish in my pond; the utility company has
a right-of-way to install and service an underground gas pipeline
5 ways to create easement
- Express creation in writing (deed or will)
- Easement by implication (previous use)
- Land was originally one parcel
- Land is severed
- Easement is reasonably necessary to dominant land’s use and enjoyment
- Use of the property in this way existed prior to severance
(usually landlocked examples) - Easement by necessity
- Land was originally one parcel with common ownership
- Land is severed
- Easement is necessary bc there’s no other way to access property
- prior use is not required - Easement by prescription (adverse possession)
- Different from “adverse possession” because the use need not be exclusive! It’s fine that both the hunters and the man who had rerouted the path used the path on the neighbor’s land
Burden “runs with the land”
This means that the covenant is binding on future purchasers
Requirements:
- writing between original parties
- intent between the parties that the promise apply to successors
- must “touch and concern” the land»_space;> makes land more useful
- horizontal and vertical privity
- notice
Equitable servitude (restrictions on how land may be used)
Equitable servitude vs. restrictive covenant
Equitable servitude
- Like covenant, writing and notice required
- LIke covenant, binding on successors
- BUT NO privity requirement
Restrictive covenant breach = damages
Equitable servitude breach = injunction
When does someone have “heirs”
Only if they die intestate (without a will)
If they HAVE a will, then they don’t have heirs and the entire estate goes to the will beneficiary
The rule about using a state’s substantive law applies only for what kinds of property issues?
And when does it not apply?
Property is located in State A, so State A’s substantive laws will apply – this is used for property issues like whether a covenant is valid
But dispute about awarding buyer damages based on fraudulent conveyance is takes the substantive law of whichever state has the greatest interest in the dispute
Assignment of lease vs. sublease
Sublease – transfer of anything less than lessee’s entire interest to third party
Assignment – transfers lessee’s entire interest in the leased premise to a third party
(ex: transferred “lease rights” for the remaining nine months of the lease. 9 months is all that’s left so this is an assignment, not a sublease)
In the absence of agreement between landlord and tenant about removing chattel/fixtures, what happens?
Tenant CAN remove chattel that he attached to the space (e.g. special lighting, display cases, shelving, counters) as long as the removal does not substantially damage the premises
This removal must occur before end of lease term. T has duty to repair damages if any, from the removal of chattel
Landlord and Tenant and Sublesse
Privity
Sublessee and Tenant are in privity of estate with each other.
Only tenant remains in privity of estate with landlord.
There is no privity of contract between sublessee and landlord because sublessee made no promise, either to landlord or tenant to pay rent to landlord.
Although privity may not be required under an equitable servitude theory, a finding for the sublessee (not having to pay landlord) means court did not use such a theory
Owner of property getting an agent to convey property through deed
If owner orally hires and instructs agent to sign owner’s name, then deed is NOT valid. Because an agent signing a deed on behalf of principal must have his own authority to sign the deed in writing also.
Agent’s authority to act on behalf of the owner must be in writing.
License (in property law)
Permission to use someone else’s land
Not subject to SOF (which means oral license is fine)
Usually revocable at anytime (unless the licensee expended lots of money/resources substantially improving it)
Things that make title unmarketable:
- Defects in chain of title
- Encumbrances
Defects in chain of title
- Refers to any defect that indicates the vendor does not have full interest which he purports to convey
Encumbrances
- mortgages
- liens
- easements
- use restrictions
- encroachments
- land use and zoning violations
Merger Doctrine
Obligations imposed by contract of sale (marketable title) are discharged UNLESS repeated in the deed.
Ex: if buyer contracted for marketable title but accepts a quitclaim deed, buyer would not be able to sue on contractual provisions. Under merger doctrine, marketability of title and related covenant claims are replaced by only “future covenants of the warranty deed”
Aka real estate contracts are only relevant during the gap between signing and closing (aka delivery of the deed)
When a mortgage is entered into “jointly” by tenants in common
Each co-tenant would be jointly and severally liable for the mortgage.
One T can pay mortgage and compel the other T for contribution
The only way the sister could have protected her one-half interest (if she doesn’t want to pay bother’s half) is to have obtained a mortgage ONLY on her own interest
Seller has personal liability on a mortgage on land. Buyer “assumes the mortgage debt”
Buyer doesn’t make installment payments. To prevent default, seller pays. Can seller get reimbursement from buyer
Yes because law of suretyship
Seller is the “third party” that the bank could go after if buyer doesn’t pay. Thus, seller has the right to seek reimbursement if he pays for what the buyer is supposed to pay
When is the window for challenging marketability of title closed?
When the deed is delivered, then contractual obligations (marketable title is discharged)
Warranty Covenants
(what does it cover / not cover once deed have been delivered)
Protects against third party interference with use and possession of land and/or claims of superior title
Landlocked land, without access to public road, would have allowed buyer to challenge marketability of title, but must have been raised prior to transfer of deed.
Under merger doctrine, marketability of title and related covenants are replaced by only “future covenants of the warranty deed”
P’s awareness of the contact
not required in what kind of tort?
Battery
Ex: P does not like D. If D kisses P while P is sleeping, this is a battery even though P was unaware at the time since the contact is offensive to a reasonable person
After being fired, VP was given 10 minutes to leave the building otherwise guards would physically throw him out.
Assault?
Assault is the intentional causing of apprehension of imminent harmful or offensive contact
10 minutes = NOT imminent harm
Examples of extreme & outrageous conduct
- Man placed microphone in former wife’s bedroom
- Man killed neighbor’s cat in front of neighbor
- Bill collector shouted through bullhorn that plaintiff was “deadbeat”
- Bill collector threatens P that if no payment, bill collector will file complaint of fraud
- Developer threatens elderly landowner that if she doesn’t sell to developer, state law would allow him to have the home condemned
Wrongful birth/pregnancy/life
Wrongful birth – baby born with congenital defects and pregnancy would’ve been terminated if properly diagnosed (remedy: extraordinary medical expenses and emotional distress)
Wrongful pregnancy – contraception failure (remedy: pregnancy-related expenses and pain and suffering, but NOT child-raising costs)
Wrongful life – not allowed. Brought by child to recover damages for having been born with defects
Types of Causation in Tort
Actual case (but-for test)
Concurrent tortfeasors – each acting independently but none of the acts independently would cause injury. P can recover ALL loss from any/either D
Substantial factor – two or more Ds at fault and each is a substantial factor.
Alternative causes – each D engaged in tortious act but only one could’ve caused injury and we don’t know which one»_space; burden of proof shifts to D
Ex: 2 bullets
Ex (that doesn’t work): pedestrian sues all hotel guests from which chair could have been thrown
Defamation vs. Libel vs. Slander
Defamatory Statement
- a false or derogatory statement of or concerning the plaintiff (must be a living person, or corporation)
- is published (repeaters of defamatory statement counts)
- to another person (one person is enough)
- and causes damage to P’s reputation
Libel
- communication in writing
- general damages presumed. P doesn’t need to prove special damages
Slander
- verbal defamation
- special damages required (P suffered some pecuniary loss)
Difference between matter of public concern vs. celebrity person in defamation
If libel involves a public figure OR is a matter of public concern, then ask yourself:
- if it’s a matter of public concern, plaintiff will be required to prove fault
- for a matter of public concern of a private person, P must show that D published the statement with at least negligence to the truth/falsity
Best defenses to torts
When asked for “BEST” defense, it’s usually contribution negligence (if that’s an option) because this completely bars Plaintiff’s recovery
For Intentional Torts
- Consent / assumption of risk
(NOTE: P cannot assume the risk if they did not KNOW like actually been aware of the risk / have an alternative option)
Negligence
- Contributory negligence
An intentional tortfeasor is liable for all consequences of his action (intended/unintended/unforeseeable)
Man who left his shotgun in the backseat of his car, whilst knowing that his friend recently joined a violent gang, will be FULLY indemnified for the judgment against him because the friend was an intentional tortfeasor
Joint Tenancy vs. Tenants in Common right to profits / responsibility of taxes
If D encroaches on neighbors land and then sells his property, can D still be sued for trespass?
Yes because the fact that he no longer owns the land is irrelevant to his tort liability. D can still be liable – D doesn’t even have to KNOW that he’s trespassing
When a P is treated by medical team as a group and unconscious with anesthesia, what’s the tort issue
Res Ipsa Loquitur
(1) the event that happened is one that does not usually occur absent negligent
(2) the harm was caused by something in D’s exclusive control
and (3) P was not the one who caused the event to occur
Why is it not negligence by “Ds acting in concert” –> there’s no evidence that two Ds caused the burn. Could have just been one person. So “acting in concert / common scheme” requires responsibility and fault of AT LEAST 2 people who engage in wrongdoing. Here, it’s possible just one person burned the patient
Public disclosure of private facts
D published private information about P that would be highly offensive to the reasonable person and is not newsworthy.
Intentional Torts ≠ Negligence
Thus when we’re evaluating the elements of whether a D’s actions constitute BATTERY,
then we would NOT ever be talking about the reasonableness of smoker D’s conduct
Is an auctioneer considered a “seller/distributor/supplier” for purposs of strict liability in tort
No bc auctioneer is not in the business of selling tractors.
And commercial sellers are strict liable if they’re engaged in the business of selling the product in normal course of business
A claim for negligently caused emotional distress MUST be connected to a physical injury
Even if the dispatcher suffered severe emotional distress and was hospitalized at one point, the facts tell us there was “no physical injury”
And thus company’s motion for summary judgment should be granted bc negligent emotional distress must be connected to a physical injury
