Mix Flashcards
B driving truck and gets into accident with M. B sues M. At trial, only witness is S who at first tells investigator that M ran the red light. Then, at trial, S says that B ran the red light. A timely objection should be…
Overruled, prior inconsistent statement. for impeachment, a party may show that the w has, on another occasion, made statements that are inconsistent with some part of his present testimony. Credibility of W can be attacked by any party, including party who calls the W.
M made prior inconsistent statement. On x-exam, M is asked whether he has ever lied under oath. An objection should be…
Sustained, not proper impeachment. Florida does not allow an examining attorney to ask a w about prior bad acts or prior specific instances of misconduct that did not result in conviction (this is CONTRARY to federal rules, which allow a party to impeach a w by asking about prior bad acts that concern w’s character for truth and veracity)
A witness is asked on the state if he has ever been convicted of any crime. An objection should be…
Sustained. Improper question. FL follows the Fed rules regarding impeachment w crim convictions - convcition must be for FELONY (punished by more than 1 year) or misd involving dishonesty or false statement. However FL cts, unlike fed cts have discretion to exclude ANY conviction under 403 balancing test.
In civil suit, P calls S to testify that she knows D. S testifies that she is aware of D’s reputation in the community and that it was bad. An objection should be …
Sustained, only evidence of character trait of truthfulness is admissible to impeach. Bad character for truthfulness is admissible to attack cred of W, but here, S didn’t testify as to D’s bad character for truthfulness. General reputation is inadmissible, must relate to w’s truthfulness.
P v D in civil case. P says he has severe emotional disturbance following injuries caused by D. In D’s case, they call P’s psychiatrist who treated P for emotional disturbance. Objection should be…
Overruled, psychotherapist-patient privilege not applicable since P put his emotional condition in issue. P can’t use privilege when he puts his mental/emotional condition as element of claim.
D injures P while driving. P sues D. During case in chief, P offers certified copy of jury verdict and conviction finding D guilty of reckless driving for the incident that cause P’s inuries. Objection should be…
Sustained, Florida does not recognize the federal rules which allow certain convictions to be admitted as an exception to the hearsay rule
D injures P while driving. P sues D. During case in chief, P offers D’s guilty plea in reckless driving case. Objection should be…
A guilty plea is admissible in subsequent litigation when offered by the adverse party. The plea itself is considered an admission by a party opponent, which is an exception to the hearsay rule in Florida. Florida does not recognize hearsay exception for criminal convictions and a guilty plea is not a conviction.
D injures P while driving. P sues D. During case in chief, P calls D to the stand and says “Were you drinking the day of the accident?”. D objects, saying this is a leading question. What result?
Objection overruled. Leading questions are allowed on direct for w’s who are hostile, uncooperative, or opposing parties or person identified with opposing party
D injures P while driving. P sues D. During case in chief, P calls S and asks what D’s reputation is. What result.
Objection sustained. Character evidence is generally inadmissible in civil case.slight probative value of character is outweighed by danger of prejudice, possible distraction of jury from main issue and waste of time. The only relevance of testimony responsive to this q is to show that D is a careless driver and therefore was driving carlessley at the time of the accident. Character evidence is not admissible for this purpose.
D accused of fraud. During trial, govt calls D’s accountant concerning accounting advice she gave to D. Admissible?
No, accountant-client privilege. FL recognizes accountant-client privilege which protects info and comms btwn a CPA/LPA & client in rendition of accounting svcs. Client may assert the privilege
In criminal trial for fraud, govt calls D’s wife and asks if she is familiar with a fraudulent transaction involved in the case. D objects saying she’s incompetent to testify against her husband. Result?
Overruled - only matters privileged in florida are confidential marital comms. FL doesn’t recognize spousal immunity (i.e. the doctrine that one spouse is incompetent to testify against the other) however, FL recognizes privilege for confidential comms btwn spouses during course of valid marriage
Husband makes confidential communication to wife during marriage. A year later, they divorce. Later, ex wife is called to testify against ex husband about that communication. Result?
marital privilege would still apply to any confidential comms made during the valid marriage - the privilege survives divorce.
A duplicate is admissible to the same extent as an original unless
(1) a genuine issue is raised about the original’s authenticity or (2) under the circumstances it would be unfair to admit the duplicate in place of the original
A witness’s prior inconsistent statement is not hearsay if…
(1) it’s made under penalty of perjury at prior trial or proceeding (then can be used as substantive evidence in addition to impeachment evidence) or
(2) used to impeach
In Florida, dying declaration applies when:
(1) either civil or criminal case
(2) made while declarant believed death was imminent
(3) concerns the cause or circumstances of what he believes to be his impending death
A guilty plea is admissible in subsequent litigatio when…
offered by the adverse party. It is considered an admission of a party opponent
Lay opinions are admissible when
(i) w can’t readily and with equal accuracy and adequcacy, communicate what she perceived to trier of fact w/o testifying in the form of an opinion
(ii) testimony won’t mislead trier of fact and
(iii) opinions do not require special knowledge or training
The business records exception applies when
a record s made in the ordinary course of biz and for legitimate biz purpose
When the prosecution rests its case in chief, the judge, in front of the jury says to the defense, “I can’t wait to see your case. The prosecution has done a great job implicating your client.” Result?
In florida, trial judge is prohibited from summing up evidence or commenting to jury on weight of evidence or credibility of witness. The comments are improper and constitute reversible error.
When is a treatise admissible in florida?
Only to attack the credibility of an expert on x-exam once it has been established as authoritative - NOT as substantive evidence
Evidence of compromises or offers to compromise is ..
inadmissible to prove or disprove the validity or amount of a disputed claim. Conduct/statements made in course of negotiating a compromise also are excluded, therefore admissions of fact made during compromise negotiations are inadmissible.
T or F: a witness in Florida may be impeached by proof of a conviction of a crime
True. When W is untruthful about existence or # of their prior convictions, they may be proved by extrinsic evidence (cert copy of judgment of conviction
What is the accident report privilege?
In Florida, a privilege is recognized for written reports made by people involved in motor accidents. Such reports are for the confidential use of hte Dept of Highway Safety and not admissible in either a crim or civil trial that arises out of the accident. Oral statements made to LEO for purpose of completing report also are included within priv, except that at crim trial, LEO may testify to any statement made to him by person involved in accident (provided that person’s priv against self incrim is not violated). Urine/BAC IS admissible, not priv.
When is habit evidence admissible in FL?
Habit evidence in FL is admissible to prove a pattern of behavior to corroborate other evidence that shows the habit occurred at the relvant time. Iti s NOT admissible as direct evidence.
What is the best evidence rule?
provides that in proving the terms of a writing, where the terms are material, the OG writing mustbe produced. Secondary evidence of the writing, such as oral tesitmony regarding the writing’s contents, is permitted only after it has been shown that hte original is unavailable for some reaosn other than the serious misconduct of hte proponent.
When can a lay witness opine as to handwriting?
If the lay witness has perosnal knowledge of the handwriting of the supposed writer and did not become familiar with the handwriting for purposes of testifying
When is a declaration of an existing state of mind admissible?
When
(1)decl’s state of mind is directly in issue and (2) is material to the controversy and
(3) (FL only) not made under circumstances that indicate lack of trustworthiness
D is on trial for receipt of stolen property. D calls character witness. On x-exam, prosecutor asks CW “Did you know that D was convicted 5 yrs ago for offering a bribe?” If objected to, what result?
Improper in form. Prosecution may test CW by x-exam regarding basis of knowledge of d’s reputation. In FL, pros can ask on x-exam whether CW has HEARD of particulr instances of D’s misconduct pertinent to the traint in question. Because govt asked whether he KNEW, it’s improper
A statement offered to show its effect on the listener is…
NOT hearsay
Present sense impression is
a statement of the declarant’s then existing state of mind, emotion, sensation or physical condition and is an exception to the hearsay rule
Under federal law what is required for standing?
Injury in fact
causation
redressibility
Under federal law, what is injury in fact
must be concrete (one that actually exists and isn’t just hypothetical) and particularized to P (affects P in personal/individual way)
Under federal law, when will a taking be found?
(1) confiscation of a person’s property by govt or
(2) permanent or regular physical occupation of person’s property by govt
What is the Taking Clause
5th amendment provides that private property may only be taken (1) for public use and (2) govt must pay just compensation
What are the 2 exceptions to the takings clause?
(1) development exception
(2) emergency exception
What is the development exception to the taking clause?
Municipalities often attempt to condition building or developing permits on a landowner’s (1) conveying title to part of the property to govt e.g. to be used as streets OR (2) granting the public an easement to access the property. The exception to taking clause applies if govt shows (1) essential nexus btwn condition and proposed development (conditions relates to legitimate pub interest) and (2) adverse impact of proposed development is roughly proportional to the loss caused to prop owner from forced transfer
What is a regulatory taking under fed law?
When govt regulation denies a landowner of all economically viable use of their land (e.g. regulation prohibiting any building on the land), the reg amounts to taking unless principles of nuisance or prop law make the use prohibitable
List 3 examples of takings under fed law
(1) condemnation of land to build highway
(2) creating public acces easement on private prop
(3) abolishing inheritance rights
List 3 examples of regulations (NOT takings) under fed law?
(1) zoning ordinances that merely prohibit most beneficial use of prop
(2) ordering destruction of diseased trees)
(3) landmark ordinances generally
What is strict scrutiny and when is it applied?
A law is upheld if it is necessary to achieve a compelling govt purpose. applied when affecting fundamental rights OR suspect classificatons.
what is rational basis and when is it applied
A law is upheld if it is rationally related to a legitimiate govt purposes. Valid unless arbitrary or irrational. Applies when not involving suspect class or fundamental rights.
what is intermediate scrutiny and when applied
Law upheld if substantially related to an important govt purpose. applied when involving gender and legitimiacy.
what is procedural due process under federal law
DPC of 5A (applicable to states via 14A) provides that ap erson has a right to a fair process when the govt deprives the person of life, liberty or property.
is federal govt negligence sufficient to state a procedural due process claim?
No, must be intentional or reckless govt action
Procedural due process requires
(1) notice (reaosnably calculated to inform the person)
(2) opportunity to be heard
and
(3) neutral decisionmaker (can’t have actual bias or serious risk of actual bias)
An offer creates…
reasonable expectation in the offeree that the offeror is willing to enter into a contract on the basis of the offered terms.
Consideration is…
bargained for exchange that constitutes a benefit to the promisor or a detriment to the promisee.
For an offer to be valid it must..
(1) expres a promise, undertaking, or commitment to enter into K
(2) have certainty & definiteness in essential terms (e.g. price, time, quantity) and
(3) communicate the offer to offeree.
An acceptance is…
manifestation of assent to the terms of offer
without certainty and definiteness of an essential term (quantity), an offer will…
fail
What is a requirements K?
where a buyer promises to buy from a certain seller all the goods it requires. Offers that define the quantity term as the buyer’s requirements satisfy the requirement that the subject matter and terms be sufficiently specific bc requirements can usualy be determined objectively and therefore are capable of being made certain. Reqs may not be unreasonably disporportionate to any stated estimate or any normal prior requirements.
What is a merchant’s firm offer?
(1) An offer by a merchant to buy or sell goods
(2) in signed writing that
(3) gives assurances it will be held open. It is not revocable for lack of consideration during the time period state or if no time stated for a reasonable time not to exceed 3 months.
Under Article 2, where one party fails to pay the contract price, does that excuse the non-breaching party from performance of the K?
No, the nonbreaching party would be limited to a suit to recover the amount owed but is not justified in suspending its own performance.
What is impracticability?
When the nonoccurrence of the event was a basic assumption of hte parties in making the K and neither party assumed the risk of an event occurring, contractual duties may be discharged in light of an unanticipated or extraordinary event. Usually these are embargoes ,crop failures, war, labor strikes or substantial unforeseen cost increases.
What is the test for unconscionability?
The test is whether the K was the result of one party’s being in a superior bargaining position, resulting in an unfair advantage over the other party at the time of execution.
B makes a contract with S by phone. S quoted B $1.70 per gallon for fuel and B agreed. S sends B the fuel, but B only pays 1.50 per gallon. What result?
When delivery has been made and accepted, the K is enforceable to the extent of the goods received and accepted, even when there is no writing. Thus, valid K for 1.70/gallon
UCC modification of K
no consideration required as long as made in good faith
Accord
an agreement in which one party to an existing K agrees to accept some other different performance than what was contracted for originally (e.g. partial payment of the amount due under the K). There must be a bona fide dispute as to the claim or some alteration, however slight, in debtor’s consideration.
In Florida, which branch controls eminent domain?
Legislative (but subject to judicial review) Courts give great deference to legislative findings and decisions
In Florida, may the legislature delegate its eminent domain authority?
Yes
What must a taking of property through eminent domain have?
A public purpose that benefits the state in a tangible and foreseeable way
What is an example of a public purpose that usually justifies eminent domain?
public recreation parks
What is the test for determining whether eminent domain is valid?
The taking must serve the greatest public benefit while creating the least possible inconvenience. It must be reasonably necessary
The land taken through eminent domain must …
Be suitable for the intended purpose
True or false: in FL, eminent domain may be used in congested areas to create public parks.
True - however, wild and rural areas may not be taken for that purpose
Govt wants to condemn property. Owners reply that the property is subject to deed restrictions specifying specific use. What result?
For purposes of eminent domian, there is no vested property right for which govt must pay compensation by virtue of the existence of deed restrictions, even where the public use is inconsistent with those restrictions.
Who determines whether eminent domain compensation is reasonable?
The jury - it’s a judicial, not legislative determination
What is the calculation for the value of property taken by eminent domain?
fair market value of the prop at the time of the taking
What must a party seeking to rescind a contract based on misrepresentation/fraudulent inducement show?
Must show that the misrepresentation went to a material factor, past or present, in the negotiations. Actual reliance is required
In an action for recission based on misrepresentation or fraud in the inducement is it necessary for the party seeking rescission to restore what he received before bringing the action?
No, but a court may require restoration as a condition precedent to granting this relief
What is unconscionability for purposes of K law?
Allows a court to refuse to enforce a K (or modify K) to avoid “unfair” terms. Unconscionability is determined by the circumstances as they existed at the time the K was formed. The basic test is whether the terms are so one sided as to be unconscionable under the circumstances at the time the K was formed.
What might a court do if it finds a K unconscionable?
- refuse to enforce K
- enforce remainder of K w/o the unconscionable clause or
- limit application of any clause so as to avoid an unconscionable result
At common law, what is generally required to modify a K?
new consideration
At common law, can a K be modified orally?
Yes, unless the K, as modified, falls within the SOF
What is minor breach?
minor breach occurs where obligee gains the substantial benefit of her bargain despite the obligor’s defective performance. The remedy is to provide minor damages to the aggrieved party.
What is material breach?
material breach occurs where obligee does not receive substantial benefit of her bargain. If breach is material, nonbreaching party:
1. may treat K as at end (discharging her duties)
2.will have immediate right to al lremedies for breack, including total damages
What is a quasi K and when is it appropriate?
In a situation where there is a failed K, quasi K relief may be available. Relief is appropriate if (1) one party conferred a benefit on the other by performing a service for the other (2) person had reasonable expectation of being compensated for service (3) benefits were conferred at express or implied req of person receiving them and (4) if person were allowed to retain w/o comp’ing, would cause unjust enrichment.
A makes an offer to B to buy your bike for $100. B reluctantly says, “fine, I accept, but I was hoping for $200.” What result?
This is an acceptance because it is a manifestation of B’s intent to be bound to the terms offered by A. An acceptance accompanied by an expression of distisfaction is still effective as long as it stops short of actual dissent.
What is required for a land K to be enforceable?
It must be in writing signed by the party to be charged. The writing must contain all essential terms which include:
1. a description of property
2. IDs parties of K
3. price & manner of payment
What is the result of a mutual mistake in K?
If both parties are mistaken about facts relating to agreement, K may be voidable by adversely affected party if
1. mistake concerns basic assumption on which K is made
2.mistake has material effect on agreed upon exchange
3. party seeking avoidance did not assume the risk of mistake
I form a K sell my house to you for $100k. Before we close the deal, we discover the true value of the house is $250k. I argue mutual mistake as a defense. What result?
I will probably lose, because if parties to a K make assumptions as to the value of the subj matter of a K , those assumptions are generally not remedied because we each assume the risk that our assumption as to value could be wrong
What is the usual measure of damages for breach of land K sale?
difference between the K price and market value of land on date of breach
When is specific performance available?
If:
1. K is enforceable
2.all K conditions fulfilled
3.legal remedy inadequate
4.enforcement is feasible
5.mutuality of remedies exists
6.no defenses avail to defendant
What types of defenses is specific performance subject to?
equitable defenses:
1.unclean hands
2.laches
3. sale to a BFP
when does the unclean hands defense arise as a defense to specific performance?
when party seeking S.P. is guilty of wrongdoing in transaction being sued upon. Wrongdoing must be related to transaction being sued upon. it’s not sufficient that P has defrauded the other person in similar transactions.
Jack and Rebecca, married to each other, own Blackacre as
tenants by the entirety. Jack then secretly transfers his interest to
Miguel. What does Miguel have?
Miguel has nothing, no unilateral transfer of a tenancy by the entirety. An individual spouse can’t encumber tenancy by entirety and a deed/mortgage executed by one spouse is ineffective
Suppose that siblings Kevin and Randall co-own a cabin. Kevin
contributed 90% of the purchase price and Randall 10%.
Which form of ownership is this?
It’s a tenancy in common because they have disparate shares
Tenant 1 and Tenant 2 have a tenancy in common. T1 contributed 90% of purchase price and T2 10%. T1 in common takes a can of paint and divides up the premises and says T2 can only enjoy 10% of property. Is that permissible?
No bc each co-tenant gets to use and enjoy the whole property, regardless of the other co-tenant’s ownership. Neither has the right to exclusive possession of any part. If one co-T wrongfully excludes the other from the whole or any part, they commit ouster.
In FL, either party may terminate a residential periodic tenancy by giving what notice?
year to year = 60 days
quarter to quarter = 30 days
month to month = 15 days
week to week = 7 days
What’s special about tenancy at will leases in florida?
they apply to RESIDENTIAL tenancies only. Nonresidential tenancies with periodic rent payment & no fixed termination date is tenancy at will
What notice is required to terminate a tenancy at will in FL?
Annual payments → 3 months notice
Quarterly payments → 45 days notice
Monthly payments → 15 days notice
Weekly payments → 7 days notice
A statute retroactively alters a law (ex post facto law) in a substantially prejudicial manner under federal law if:
(1)Makes crim act that was innocent when done
(2)Prescribes greater punish for act than was prescribed when committed OR
(3) Reduces evidence required to convict
A grants B a right of way across A’s land so that B can more easily reach his land. What does B have?
B has an easement appurtenant. B’s land is benefited so it’s hte dominant tenement. A’s land serves B so it’s the servient tenement.
What is florida’s statutory deed?
General warranty deed
What is a general warranty deed?
Where grantor covenants against title defects created by him and all prior titleholders. Includes 3 present covenants and 3 future covenants:
Seisin → grantor has the thing she says she has (both title + possess at time of grant )
Right to convey → grantor has power & auth to make grant
Against encumbrances→ neither visible (easements) nor invisible (mortgages)
Quiet enjoyment → grantee not disturbed by 3rd party’s lawful claim
Warranty → grantor to defend obo grantee lawful claims by TP & compensate for loss
Further assurances→ whatever acts reasonably necc to perfect title if not perfect
No implied warranties
What are the 3 present covenants in a general warranty deed?
Sesisin
Right to Convey
Against encumbrances
What are the 3 future covenants in general warranty deed?
Quiet enjoyment
Warranty
Further Assurances
what is the difference between a general warranty deed and a special warranty deed?
in special warranty deed, grantor only makes promises on behalf of himself (where as GWD makes promises on behalf of predecessors in title)
which deeds are void?
Forged deeds
No delivery
Dead/nonexistent grantee
Fraudulent deeds
which deeds are voidable
Executed by minor/person w/o mental capacity
Obtained by:
fraud in inducement
duress/undue influence
mistake
Breach of fiduciary duty
What is a fraudulent conveyance?
Conveyance with intent to hinder, delay, or defraud grantor’s creditor. Made w/o receiving equivalent value by insolvent debtor (or one who becomes insolvent bc of transfer)
Florida’s recording act applies to…
leases for a term of one year or longer
In a notice state, who always wins?
the last BFP to take
what is a bona fide purchaser?
grantee must:
(1) be a purchaser (or mortgage lender) not one who received prop by gift, will, or inheritance
(2) pay valuable consideration and
(3) takes without notice (actual, constructive or inquiry) of prior conveyance
What are the differences between actual, inquiry, and record notice?
- Actual = knowledge
- Inquiry = should’ve known, buyer has duty to inspect to see if anyone in possession
What is the presumption regarding unrecorded instruments?
There is a presumption of a lack of notice of an unrecorded instrument by a person subsequently acquiring an interest in the property. The burden is on the claimant under the unrecorded instrument to show actual knowledge.
State the rule for a notice statute.
Under a notice statute, a subsequent purchaser who had no notice of a prior conveyance by the grantor will prevail over a prior grantee who failed to record.
what is the shelter rule?
Anyone who takes from a BFP will prevail against any interest the BFP would have prevailed against. The transferee “takes shelter” in the status of the transferor and steps into the shoes of the BFP even though she otherwise fails to meet the requirements of BFP status. This is true even if the grantee had actual notice of a prior unrecorded conveyance.
Estoppel by deed
one who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he subsequently acquires title that he previously purporte to transfer
Purchase money mortgage
The
purchase-money mortgage is an extension of value by a lender who
takes as collateral a security interest in the very real estate that its
loan enables the debtor to acquire.
Jack and Rebecca borrow $100,000 from Bank to finance their
purchase of a home, granting Bank a security interest in that new
home to collateralize the loan. This is a purchase-money mortgage
because Bank took a lien in the very realty that its loan enabled
Jack and Rebecca to purchase. Classify the parties
J & R are debtor/mortgagors. The bank is the mortgagee
The transfer of a mortgage without the associated note in FL is
a nullity
the proper venue for foreclosure action in florida is…
in the county
where the land lies. If a property lies in two or more counties,
then it may be foreclosed in any of those counties.
who are the necessary and proper parties in a foreclosure action in florida?
Necessary and proper parties include everyone who has an interest in the property but whose interest is inferior to the mortgage lien. These include the titleholder, lienholders whose lien was
recorded after the mortgage, parties in possession under a lease or as receivers, and holders of easements and licenses.
What is the rule for redemption in florida?
Florida does not allow a statutory right to redeem after the foreclosure sale has occurred and is finalized. After a sale of the property, the clerk of the court must promptly file a certificate of
sale. If no objections to the sale are filed within 10 days after filing the certificate of sale, the clerk files a certificate of title. When the certificate of title is filed, the sale stands confirmed.
What Ks are subject to the SOF in Florida
MY LEGS Never Hurt - PPP
Marriage
K that cannot be Performed within 1 Year
Land & Real Estate
Executor’s Promise
Goods of $500 or More
Surety’s Promise
Newspaper or Magazine Subscriptions
Healthcare Provider’s Guarantee of Outcome
If contract concerns property, to contain essential terms must have:
names of the Parties
description of the Property
Price
What are the different types of damages in contracts?
Every Road Rage Incident Causes Liability
Expectation
estitution
Reliance
Incidental
Consequential
Liquidated
What are the requirements for a statute to be valid in Florida?
PREGS
Pass both houses in identical form
Read 3 times into legislative record
Enacting clause “Be it enacted by the legislature”
Governor must sign bill into law
Single subject stated in title
Which laws must be uniform throughout Florida?
V PELTED CRAP
change of Venue
Petit juries
Election laws
Liens & interests
Taxes
Evidence
Divorce
Conditions Precedent
Regulation of occupation
Adoption
Punishment of crimes
What are the federal due process rights?
CAMPERS
Contraception
Abortion
Marriage
Pro-creation
Education
Right to raise your family
Sexual conduct
What are the technical requirement for indictments and information in Florida?
NIICE SANTA
Nature
Information about the accused
Intent to defraud
Caption
Endoresement and sig (indictment)
Sig & Oath (information)
Allegation of Facts
No info by reference
Time and place
Authority
When may a FL mx to dimiss be filed after arraingment?
Good Night Dear Prince
Granted Immunity
No facts in dispute
Double Jeopardy
Pardoned
Doctrine of informed consent in Florida
In Florida, a health care provider will not be liable for failure to
obtain informed consent if the patient either (1) received enough
information so that a reasonable person would have a general
understanding of the procedure, its alternatives, and its risks; or
(2) would have accepted the treatment had they been advised as
required.
FL discovered trespasser
n Florida, a “discovered trespasser” is a person who enters property
without an express or implied invitation, and whose actual
physical presence was detected within 24 hours preceding the
accident. To avoid liability to discovered trespassers, a landowner
must refrain from gross negligence or intentional misconduct that
proximately causes injury, and must warn of dangerous conditions
that are known but that are not readily observable by others. If the
trespasser is legally under the influence of alcohol or drugs, the
landowner owes no duty to warn of dangerous conditions but is
still liable for gross negligence or intentional misconduct.
What is required for a search warrant to be valid in Florida?
To be valid, a search warrant must (i) be issued by a neutral and detached magistrate (ii) be based on probable cause established from facts submitted to the magistrate by a government agent upon oath or affirmation and (3) particularly describe the place to be searched and items to be seized
What are the sunshine laws?
The Florid constitution provides that every person has a right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state or local government, or persons acting on their behalf, except those records made confidential by the constitution. A private entity may be considered acting on behalf of the govt if the entity takes on an exclusive public function or the govt is significantly involved in the affairs of the private entity.
When can you assert the right against self incrimination?
The right against self incrimination may be asserted in any proceeding in which testimony that tends ti incriminate is sought.
You must assert the right against self incrimination in civil proceedins in order to…
Prevent the privilege from being waived in subsequent criminal prosecution
The right against self incrimination protects only against
being compelled to communicate information, not against disclosure of communications made in the past. Production of records by a custodian or corporate records is considered an act of the corporation, which are not entitled to assert the privilege–only natural persons may assert it.
Does FL’s constitutional right to privacy impact the right of the public to access public records?
Florida’s constitutional right to privacy states that the right to privacy shall not be construed to limit the public’s right of access to public records. Absent an applicable stauttory exception, pursuant to FL’s Pub Records Act, pub employees do not generally have privacy rights in such records.
Are personnel records of public employees kept private under the sunshine laws?
Personnel records may constitute public records and what is kept in personnel files is largely a matter of judgment of the employer. The legislature may provide for exemptions from access to public records and meetings if the law (i) states with specificity the public necessity justifying the exemption and (ii) is no broader than is necessary to accomplish the stated purpose.
What is the RAP and what is it in Florida?
Under the Rule Against Perpetuities, an interest must vest or fail within a life in being plus 21 years. If an option is structured so that it might be exercised later than the end of the Rule’s period, it is usually held void. However, under the Florida rule, an interest is valid if it vests or fails within 90 years from its creation
The Florida rule that a convenyance of an interest of land must have 2 subscribing witnesses applies only to…
the instrument actually conveying the interest, not to contracts containing promises to convey (e.g. an option)
Under a notice statute:
a subsequent bona fide purchases (one who gives valuable consideration and has no notice of the prior instrument) prevails over a prior grantee who failed to record. This is true whether the subsequent BFP records or not
Must an arrest comply with the 4th amendment?
The Fourth Amendment protects against unreasonable searches and seizures. Because an arrest is the seizure of a person, it must comply with the Fourth Amendment in order to be valid. An arrest may be more intrusive than a search and an unlawful arrest without more has no impact on the subsequent prosecution.
When can an officer commit a warrantless arrest?
An officer may commit a warrantless arrest for a felony if they have reasonable grounds to believe the felony was committed by the person they arrest. An officer may commit a warrantless arrest for a misdemeanor if it is committed in the officer’s presence.
When does D have a 4th amendment right?
When there is:
(1) state action AND
(2) a reasonable expectation of privacy
What is required for a FEDERAL search warrant?
A search warrant must be based upon a showing of probable cause. Officers must submit to the magistrate, along with the request for a warrant, an affidavit setting forth sufficient underlying circumstances to enable the magistrate to make a determination of probable cause independent of the officers’ conclusions. If the officer’s affidavit of probable cause is based on information obtained from informers, its sufficiency is determined by the totality of the circumstances.The identity of the informants that provide information for a warrant will be considered but will not be dispositive
when is a waiver of miranda valid?
when made knowingly, voluntarily and intelligently
what is the 11th amendment of the fed con?
Doctrine of sovereign immunity - bars a private party’s suit against a state in federal and state courts as well as claims against a state in federal and state agencies.
What are the exceptions to sovereign immunity? (fed)
express waiver (most states have waived S.I. in tort claims act)
Implicit consent
Actions against local govt
Suits by other states or fed govt
Bankruptcy
Certain actions against state officers
what is a “political question”
one which is (1) constitutionally committed to another branch of govt OR (2) inherently incapable of judicial resolution
Examples of political questions
-challenges to procedures for ratifying the constitution
-pres’ conduct of foreign policy
-political gerrymandering
If a state court decision rests on 2 grounds, 1 state law and 1 fed law, can the US supreme court hear the case?
No, if SCOTUS reversing the fed law would not change the result in the case. This is so bc SCOTUS will not exercise jx if state court judgment is based on adequate and independent state law grounds.
An ordinance of a city prohibits leafleting on the grounds of any hospital or on the sidewalks within 5 ft of the hospital entrances during visiting hours. A member of a religious group advocating prayer to restore the sick to good health is arrested for violating the ordinance, is fined $100, and is convicted. She appeals her conviction, claiming that her constitutional rights were violated. The case was heard by the state sup ct, which ruled that while the
ordinance was permissible under the fed Constitution, it
was unconstitutional under the state constitution because the fine money was designated to go to the city’s only hospital, which was privately owned, rather than to the city.
The city seeks to bring the case before SCOTUS. Should the SCOTUS grant certiorari?
No. SCOTUS should refuse bc the case was decided on independent state grounds. SCOTUS won’t hear a case from state court if there are adequate and independent state grounds to support the decision. Here, the state ct held the law invalid on state, rather than federal, constitutional grounds. Therefore, SCOTUS should refuse to hear the case.
Necessary and proper clause of fed con
Congress has power to make all laws necessary and proper to carry out any of the legislative powers enumerated in Article 1, as long as that law doesn’t violate another provision of the constitution. The laws can be foolish but not irrational.
Can the necessary and proper clause work alone?
No, it must work in conjunction with another federal power.
Federal taxing and spending power
Congress has the power to tax and spend to provide for the general public welfare. T & S may be for any public purpose not prohibited by the constitution.
Spending Power Conditions
Congress can imposed conditions on the grant of money to state or local governments so long as
(1) they are clearly stated
(2) they related to the purpose of the program
(3) are not unduly coercive AND
(4) do not otherwise violate the con
Can federal congress condition grants of federal money to schools on the condition that the school achieve certain educational standards?
Yes under taxing and spending power.
Can federal congress condition school spending on the state setting certain highway speed limits?
No. Under the spending power, conditions on funds must be related to the purpose of the program .
Can the federal government withhold current Medicaid funding to states for failure to participate in a medicaid expansion program, where medicaid accounts for more than 10% of a state budget?
No. Under the spending power, conditions on funds may not be unduly coercive. SCOTUS found this condition unduly coercive.
Federal taxes are valid if
(1) they bear some reasonable relationship to revenue production or
(2) to promoting the general welfare
Federal Commerce power
Congress has power to regulate all foreign & interstate commerce. To be within the CC, a law regulating interstate commerce must:
-regulate the channels of interstate commerce (e.g. highways, internet)
-regulate the instrumentalities of interstate commerce (planes, trains) and persons and things in IC or
-regulate activities that have a substantial effect on interstate commerce
tenth amendment limitation on congress’ commerce power
Congress can’t regulate noneconomic intrastate activity in areas traditionally regulated by state or local governments
(e.g. can’t criminalize intrastate DV, even tho in aggregate that violence affects interstate commerce bc of loss of work)
Commerce power + discrimination
Under the commerce power, Congress may prohibit private discrimination in activities that might have a substantial effect on interstate commerce.
Delegation of legislative power
Congress can delegate rulemaking or regulatory power to the executive branch (including admin agencies) or judicial branch as long as
(1) intelligible standards are set and
(2) the power isn’t something uniquely confined to congress (i.e. the power to declare war/ impeach)
e.g. In the Clean Air Act, Congress gave the EPA the authority to regulate air pollutants to protect public health. The Ct upheld that standard as an intelligible principle
that was sufficient to allow the EPA to regulate ozone levels.
line item veto
not allowed. Giving the pres the power to cancel parts of a bill while approving others is an unconstitutional delegation of legislative power. Pres can only approve or reject bill as a whole.
President’s powers vis a vis Congress
When pres acts with express or implied authority of congress, his authority is at its maximum & likely valid
When pres acts where congress is silent, ct will consider circumstances and relevant history. Unlikely to be upheld if it usurps power of another govt branch or prevents another branch from carrying out its tasks.
If pres acts against the express will of congress and congress had authority to act, then the action is likely invalid.
overcoming veto power
if Pres vetoes an act of congress, the act may still become law if veto is overridden by 2/3 vote of each house
Who has power to declare war?
congress. but pres can act militarily in actual hostilities against US w/o congresional declaration
Field preemption
A valid fed law may impliedly “occupy” the entire field, thus barring any state or local law even if the state or local law is nonconflicting. Cts will look at the regulatory scheme to determine whether congress intended to preempt the entire field (e.g. if fed laws are comprehensive or an agency was created to oversee the area, preemption may be found)
Presumption against preemption
In all preemption cases, but especially in cases involving a field traditionally within the power of the states (for example, regulations involving health, safety, or welfare), courts will start with the presumption that the historic state police powers are not to be superseded unless that was the clear and manifest purpose of Congress.
A state statute prohibits merchants from selling goods manufactured in a foreign country unless the merchant clearly marks the goods with their country of origin. The United States has a treaty with a foreign country that allows each country to import and sell goods and products from the other country. If a person is prosecuted under the state law for refusing to mark goods as being of that foreign country’s origin, which of the following statements reflects the most likely outcome of the case?
The person should be acquitted bc the state statute is preempted. Federal law preempts inconsistent state law and this state law conflicts with federal treaty. The treaty opens up free trade with another country while the state law impedes free trade by adding a labeling requiring with a criminal penalty.
Article IV privileges and immunities clause
Prohibits against discrimination by a state against nonresidents (but corps & noncitizens not protected) when the intentionally protectionist discrimination concerns either
(1) important commercial activities OR
(2) fundamental rights
examples of invalid discrimination against non-residents
(1) Statute requiring $2,500 license fee from nonresident commercial fishermen, while residents paid $25.
(2). Rule limiting bar admission to state residents.
(3) Statute requiring private sector employers to give hiring preference to residents.
example of valid discrimination against non-residents
statute requiring non-residents to pay $225 license fee as opposed to $30 residents’ fee for recreational hunting
Dormant commerce clause
Where congress hasn’t enacted laws regarding a subject, a state or local govt may regulate local aspects of interstate commerce. BUT, the state/local govt must not DISCRIMINATE AGAINST or UNDULY BURDEN interstate commerce.
State or local regulations that discriminate against interstate commerce to protect local economic interests are….
Almost ALWAYS invalid (e.g. NY can’t ban CA wines or tax them at a higher rate than local wines). Can only overcome if there is an important noneconomic state interest and NO reasonable nondiscriminatory alternative available.
When is a nondiscriminatory state tax on interstate commerce valid?
(1) substantial nexus to the taxing state (exists when a business avails itself of the privilege of doing business in the state)
(2) fair apportionment according to rational formula
(3) must be fairly related to services or benefits provided by state
When does a private actor perform state action?
When they perform activities that are so traditionally the exclusive prerogative of the state (e.g. running a company town/private prisons)
Rational basis
A law is upheld if it is rationally related to a legitimate government purpose. Burden is on person challenging the law. Apply where no suspect/quasi suspect class or fundamental right. Apply for gender and legitimacy
Intermediate scrutiny
The law is upheld if it is substantially related to an important govt purpose. Usually burden on govt. Apply for gender and legitimacy
Strict Scrutiny
Law is upheld if it is necessary (narrowly tailored) to a compelling state interest. Burden on govt. Apply where fundamental rights or suspect classes.
Balancing test for determining whether a hearing complies with federal due process
Weigh
(1) the importance of the interest AND
(2) the value of specific procedural safeguards to that interest (risk of error from current procedures used and benefits of add’l procedures) AGAINST
(3) govt interest in fiscal and admin efficiency
how to show discrimination
(1) law is discriminatory on its fact
(2) discriminatory application of facially neutral law (plus intent)
(3) facially neutral law with disparate impact on protected class (plus intent)
What is the development exception and when does it apply?
Municipalities often try to condition building permits on a landowners’ (1) conveying title of part of the prop to the govt (e.g. to use for streets) or (2) granting the public an easement to use the prop. These are a taking UNLESS:
(1) govt can show ESSENTIAL NEXUS btwn condition & proposed development (condition relates to leg govt interest) AND
(2) the adverse impact of the proposed development is ROUGHY PROPORTIONAL to the loss caused to the prop owner from the forced transfer
Regulations that deny use of economic value of land
If a government regulation denies a landowner of all economically viable use of their land (for example, a regulation prohibiting any building on the land), the regulation amounts to a taking unless principles of nuisance or property law make the use prohibitable.
Regulations that decrease the value of property
do not amount to a taking if they leave an economically viable use for the property.
The Court will consider (
(1) the govt interests sought to be promoted;
(2) the diminution in value to the owner; and
(3) whether the regulation substantially interferes with distinct, investment-backed expectations of the owner.
What is the effect of missing terms in a contract?
The fact that one or more terms are left open does not prevent the formation of a contract if it appears that the parties intended to make a contract and there is a reasonably certain basis for giving a remedy. In such a case, the majority of jurisdictions and Article 2 hold that the court can supply reasonable terms for those that are missing.
What is the effect of failing to state price in a contract?
Except in contracts for real property, the failure to state the
price doesn’t prevent the formation of a contract if the parties intended to form a contract without the price being settled. Note that if a contract for the sale of goods is missing a price term, Article 2 provides that the price will be a reasonable price at the time of delivery.
What words in an offer might signal a vagueness problem?
“reasonable” “fair” “appropriate”
Counteroffer
is both a rejection and a new offer. It terminates the original offer and reverses the roles of the parties: The offeree giving a counteroffer becomes the offeror of a new offer, which the other party may accept or reject.
A offers to sell his property to B for 100k. B says “I’ll buy it for 90k.” What has happened?
A’s offer has been rejected and B has made an offer for $90,000, which A may accept or reject. If A rejects it, B cannot later say to A, “I’ll take your prop for 100k,” and accept A’s offer. It no longer exists because it was rejected.
Conditional acceptance as rejection
When an acceptance is made expressly conditional on the acceptance of new terms, it is a rejection of the offer. The conditional acceptance is essentially a new offer, and the original offeror may form K by expressly assenting to the new terms. BUT, the offer that results from a conditional acceptance cannot be accepted by performance. If the parties ship or accept goods after a conditional acceptance, a K is formed by their conduct, and the new terms are NOT included.
Disney sends Barack Obama an offer to appear in the film, “The Man in the Tan Suit.” Obama agrees on the condition that he gets top billing. Is there a contract?
No - conditional acceptance is not acceptance. It is rejection and a new offer. Disney may expressly assent to the new terms.
An offer may be revoked indirectly if:
The offeree receives
(1) correct info
(2) from a reliable source
(3) of acts of the offeror that would indicate to a reasonable person that the offeror no longer wishes to maek the offer
Detrimental reliance
When the offeror could reasonably expect that the offeree would rely to their detriment on the offer and the offeree does so rely, the offer will be held irrevocable as an option contract for a reasonable length of time
Subcontractor S submits a bid to do the plumbing work on a school project for $10,000. General Contractor G relies on S’s bid in computing its own bid, and wins the overall school building project. Can S still revoke its offer?
No - bids are offers. G has foreseeably and detrimentally relied on S’s bid.
A seller accepts an order to ship goods to a buyer. The seller then discovers they lack the specified goods and ship nonconforming goods as an “accomodation.” What effect?
This is breach, not a naccomodation. There was a contract at the promise to ship. The shipment wasn’t the acceptance, thus accomodation is not possible.
Buyer orders a Beyonce CD from seller. Seller ships a Lady gaga CD instead and includes a note saying “I’m out of beyonce but I am sending Lady gaga as an accomodation” What result?
Seller is making a counteroffer. The shipment of nonconforming goods is an acceptance as well as a breach unless the seller seasonably notifies the buyer that the shipment of nonconforming goods is offers as an accomodation. Buyer may reject goods and if they do, shipper isn’t in breach and may reclaim the acommodation goods because the tender doesn’t constitute an acceptance of the buyer’s original offer.
Battle of the forms provision
Article 2 does not follow the mirror image rule. Instead, the inclusion of add’l or diff terms by the offeree in a definite and timely acceptance does NOT constitute a rejection and counteroffer, but rather is an acceptance, UNLESS the acceptance is EXPRESSLY made conditional on assent to the add’l or diff terms.
Battle of the Forms and Nonmerchants
If any party to the K is not a merchant, the additional or different terms are taken as mere proposals to modify the K that don’t become part of the K unless the offeror expressly agrees.
Battle of the forms, Additional terms, & Merchants
If both parties to the K are merchants, add’l terms in acceptance are included in K UNLESS:
-they materially alter the original terms of offer (e.g. by changing a party’s risks or remedies available)
-the offer expressly limits acceptance to the terms of offer
OR
-offeror already objected to the particular terms (or does so w/in reasonable time)
Battle of the forms - different terms & merchants
Some courts treat different terms like additional terms, and follow the same test for merchants + add’l terms.
Other courts follow the “knockout rule,” which states that conflicting terms in the offer and acceptance are knocked out of the K, because each party is assumed to object to the inclusion of those terms in the K. Under
the knockout rule, gaps left by knocked out terms are filled by the UCC.
what may signal no meeting of the minds under both UCC and Art 2?
differences in the price, quantity or quality terms
When is acceptance of an option contract effective?
An acceptance under an option K is effective ONLY upon receipt (not upon mailbox rule)
In FL, a promise to pay a debt barred by the statute of limitations is enforceable if …
it is in writing and signed by the party sought to be charged.
A promise to perform an existing legal duty is not usually sufficient consideration. What are the exceptions to this rule?
-new or diff consideration promised
-promise to ratify a voidable obligation (e.g. a minor’s K after reaches majority or promise to go through with a K despite the other party’s fraud)
-pre-existing duty owed to a third person rather than to
promisor
-there’s an honest dispute as to the duty OR
-unforeseen circumstances sufficient to discharge a party (e.g. impracticability)
What is needed to modify a contract under the UCC?
A good faith agreement. No consideration necessary.
When is a modification of a contract valid despite no new consideration?
if
(1) the modification is due circumstances unanticipated by the parties at the time the K was formed AND
(2) it’s fair & equitable
Grandpa promises to give his granddaughter $2 million as a
gift. In reliance on the gift, Granddaughter quits her job. Then Grandpa dies and his estate reneges. Was there consideration for Grandpa’s promise to give Granddaughter the $2million?
Can Granddaughter enforce Grandpa’s promise on any other ground?
There was no consideration because this was a gift. However, grandaughter can prevail under theory of promissory estoppel. A promise is enforceable if necessary to prevent injustice if
(1) the promisor should reasonably expect to induce action or forbearance AND
(2) such action or forbearance is in fact induced
Recovery may be limited - expectation or reliance damages.
Disaffirmance
An infant (minor) may choose to disaffirm a K any time before or SHORTLY after reaching the age of majority. The
contract must be disaffirmed as a whole; it can’t be affirmed in part and disaffirmed in part. If an infant chooses to disaffirm, they must return anything received under K that still remains at the time of disaffirmance. However, there is no obligation to return any part of the consideration that has been squandered, wasted, or negligently destroyed.
Contracts between adults and minors
-are binding on the adult only
-minors in FL who get married are ADULTS
In FL, how might a minor be estopped from raising a legal incapacity defense?
A minor may be estopped from raising legal incapacity as a defense to enforcement of a contract if the minor induced the other party to enter into the contract by fraudulently misrepresenting that he had reached the age of majority.
Necessaries and minors
“Necessaries” are items necessary for subsistence, health, or education (including food, shelter, clothing, and medical care). A minor may disaffirm a contract for necessaries but will be liable in restitution for the value of benefits received.
I rent a minor a place to live for 20k a month. Does the minor have to pay?
Y because it’s a necessary. but only has to pay the reasonable value of that apartment
Misunderstanding/Ambiguities in K law
If the contract includes a term with at least two possible meanings, the result depends on the parties’ awareness of the ambiguity:
a. Neither party aware—no K unless both intended same meaning
b. Both parties aware—no K unless both parties intended same meaning; or
c. One party aware—binding K based on what ignorant
party reasonably believed to be meaning of ambiguous words.
A & B contract for the delivery of cotton on the ship “peerless”. B means the ship sailing in October. A means the ship sailing in December. Is there a K?
No. No meeting of the minds due to a material ambiguity that neither knew/had reason to know about.
Mutual mistake
If both parties entering into K are mistaken about existing facts (not future happenings) relating to the agreement, K
may be voidable by the adversely affected party if:
(i) The mistake concerns a basic assumption on which K
is made (e.g. the parties think they’re contracting for sale of diamond but really just plastic);
(ii) The mistake has a material effect on the agreed-upon
exchange (for example, the plastic is worth only a
hundredth of what a diamond is worth); AND
(iii) The party seeking avoidance did not assume the risk of the mistake.
A-Rod agrees to sell Serena a baseball bat for $100,000. Both parties believe it was used by Babe Ruth. After the agreement, they learn that it was not. Does Serena still have to buy the bat?
No - mutual mistake about the existence of the subject matter.
Alex Rodriguez agrees to sell Serena Williams a baseball bat for $100,000. It is actually only worth 50k. Does Serena have to buy the bat?
Yes - this is a mutual mistake as to the value of the bat, not mistake that has a material effect on the agreed upon exchange. Both parties assume the risk that assumptions about value is wrong.
Fraud in the inducement
If a party induces another to enter into a K by asserting information they know is untrue, the K is voidable by the innocent party if they justifiably relied on the fraudulent misrepresentation.
Material misrepresentation
A misrepresentation is material if:
(1) it would induce a reasonable person to agree, or
(2) the maker knows that for some special reason it’s likely to induce the particular person to agree, even if a reasonable person would not.
Voidable if proven.
when are the sale of goods for $500 or more not required to conform to the SOF?
When:
Specially made goods
Written confirmation by merchant
Admission in court or
Performance
Doctrine of part performance in florida
A K for the sale of land generally must comply with the SOF. However, a buyer an enforcer a seller’s oral promise to sell land in FL if they can show:
(1) oral contract was made,
(2) that all or part of the consideration was paid,
(3) that the purchaser had possession, and
(4) that the purchaser made valuable and permanent
improvements on the land
when does part performance take a sale of goods K out of the SOF?
(1) the goods have been specially manufactured or
(2) the goods have been either paid for or accepted
*partially paid for/accepted = only enforceable to extent of partial payment/acceptance
Tom Brady orally agrees to buy 50 regularly-inflated footballs for $100 each. Seller takes Brady’s check for $2,000 for the first 20 footballs and cashes it. Seller refuses to deliver any footballs. Brady sues Seller for breach. Does Seller have a Statute of Frauds defense?
No SOF defense for the 20 footballs. The goods were paid for, so S is on the hook. However, the seller can use SOF to get out of delivering the next 30 footballs bc they haven’t been paid for yet.
Federal Establishment Clause
The Establishment Clause prohibits govt sponsorship of religion, meaning that the govt can’t aid or formally establish a religion. Courts have moved away from the Lemon test. Where the govt appears to conduct an act that is not religiously neutral, courts currently look to the neutrality of the act, elements of coercion, history and the Founders’ intent. Neutrality means the government neither favors nor disfavors religion. Coercion looks to any state action that directly or indirectly aimed to force exercise of religion or dissuade from it. Historical factors and founders’ intent looks to longstanding practices deeply embedded within the tradition of the country.
Florida Establishment clause
Although the federal government has turned away from the Lemon Test, the Florida Supreme Court has not yet stated whether Lemon no longer applies. Thus, in Florida, a law will be upheld against an Establishment Clause claim only if it has (1) a primarily secular purpose, (2) its primary effect neither advances nor inhibits religion, and (3) the law doesn’t produce excessive govt entanglement with religion.
The state provides textbooks to secular private schools but not religious private schools. Is this valid under the Federal and Florida constitutions?
It’s valid under the Florida constitution but not the federal constitution.
The federal con prohibits limiting eligibility for a generally available govt benefit to nonreligious orgs. Even if a state isn’t required to create a benefit, if it chooses to do so, it can’t exclude an otherwise qualified individual or institution from receiving the benefit based solely on the basis of their religion - no compelling interest justtifies the exclusion. Thus if state provides textbooks to secular private schools, it must provide the same benefit to otherwise eligible religious private schools.
In contrast, Florida Con states that no revenue of the state may ever be taken from the public treasury directly or indirectly in aid of any church, religious denomination or sectarian institution. This provision likely violates the U.S. Con’s Free Exercise Clause, at least to the extent that any govt benefits are provided to secular entities (including secular private schools) but not provided to otherwise-qualified religious entitities (including religious private schools)
Searches of public school students
A warrant or probable cause is not required for public school officials to search public school students or their possessions as long as there are reasonable ground for the search. A search is reasonable only if
(1) it offers a moderate chance of finding evidence of wrongdoing
(2) the measures adopted to carry out the search are reasonably related to the objectives of the search and
(3) the search is not excessively intrusive in light of the age and sex of the student and nature of the infraction.
Marketable title
An implied covenant to convey marketable title exists within every contract for the sale of goods. Marketable title is title reasonably free from doubt and the threat of litigation. Title need not be perfect but can’t present an unreasonable risk of litigation. Common defects include:
-defects in record chain of title
-encumbrances (liens, easements, mortgages, restrictive covenants)
-zoning violations
An easement will render title unmarketable if…
(1) it decreases the value of the property and
(2) is not visible or known to the buyer
A buyer discovers an encumbrance on the property after signing a land sale contract with seller, but before the closing. What must buyer do?
Buyer must notify seller and give him a reasonable time to cure the defect. The seller can satisfy the lien at closing with the proceeds from the sale.
A buyer discovers an encumbrance on the property after signing a land sale contract with seller, but before the closing. Can the buyer rescind?
No, not right away. First buyer must notify seller and give reasonable time to cure. Can’t rescind K as unmarketable unless seller fails to remove the encumbrance prior to closing. If the buyer gives seller the appropriate notice and S still fails to fix the defect, buyer has 3 options:
(1) rescind K
(2) sue for damages for breach
(3) get specific performance with abatement of purchase price
A buyer discovers an encumbrance on the property after signing a land sale contract with seller, but before the closing. Buyer permits the closing to occur. Can the buyer sue on the contract?
No, if a buyer permits the closing to occur, in the absence of fraud, the contract merges with the deed and the seller is no longer liable on the covenant of marketable title. Once closing occurs, a buyer’s only remedy for liens, other encumbrances, or title defects lies within whatever promises are made in the deed.
What is the difference between a general warranty deed and a special warranty deed?
The only difference between a general warranty deed and a special warranty deed is that the general warranty deed covenants against title defects created by the grantor and prior titleholders, where as a special warranty deed only covenants that he himself did not create title defects.
What are the 3 present covenants in a special warranty deed and when are they breached?
The three present covenants, which are breached, if at all, at the moment of conveyance, are covenants of seisin, right to convey, and the covenant against encumbrances. The covenant of seisin guarantees that the grantor has the right they purport to convey. The covenant of right to convey promises that the grantor has the authority to make the grant. The covenant against encumbrances assures that there are no visible encumbrances, such as easements or invisible encumbrances, such as mortgages or lien.
when is the only time that a warranty of fitness exists in the sale of a home?
when it is new construction sold by the builder
What are the 3 future covenants in the special warranty deed?
The other covenants in the warranty deed–quiet enjoyment, warranty, and further assurances–are future covenants and are breached only when a third party interferes with a grantee’s possession. The covenant of quiet enjoyment promises that the grantee will not be disturbed in their possession or enjoyment of the property by a third party’s lawful claim of title. The covenant of warrant provides that the grantor will defend on the grantee’s behalf any reasonable claim of title by a third party and compensate the grantee for any loss sustained by a claim of superior title. Under the covenant for further assurances, the grantor promises to perform whatever acts are necessary to perfect title if it turns out to be imperfect.
when is the seller of a home liable for failure to disclose defects?
(1) they know or have reason to know of the defect
(2) the defect is not obvious and the buyer is unlikely to discover it by ordinary inspection and
(3) the defect is serious and would probably cause the buyer to reconsider the purchase if it were known. Damages can range from rescission to the difference in value resulting from the failure to disclose the true facts.
Define easement appurtenant
An easement appurtenant involves two parcels of land, a dominant an a servient tenement. The easement appurtenant benefits the holder (owner of the dominant estate) in their use and enjoyment of the property. The benefit of an easement appurtenant passes with the transfer of the benefited land, regardless of whether the easement is mentioned in the conveyance.
Rules around scope of easement
The scope of an easement is determined by the reasonable intent of the original parties. An easement holder cannot expand the easement beyond what was contemplated at the time it was granted. An easement can’t be exercised to injuriously increase the burden upon the servient tenement because the owner of that parcel retains the right to use the land in any manner not inconsistent with the easement. When the owner uses it in a way that exceeds its legal scope, the easement is surcharged. The remedy of the servient landowner is an injunction of the excess use and possibly damages if the servient land has been harmed.
