NY BAR REVIEW 2

Question 1

Standard measure of damages contracts for sale of land

Answer 1

If vendor cant deliver good title because of defect of which was unaware, damages are the down payment plus reasonable expenses.

Question 2

Consideration

Answer 2

Non compete agreement signed by at will employee or independent contractor AFTER employment has begun DO NOT require new consideration. Continued employment is consideration. New consideration is required if employee has contract because employer would have preexisting duty to continue employment.

Question 3

Specific performance covenant NOT to compete

Answer 3

Non-compete clause in employment contract NOT favored and enforced only to extent reasonable and necessary to protect valid business interests.

Question 4

Discharge by Release

Answer 4

Permitted- any claim to be released by written instrument without consideration.

Question 5

Partial discharge by modification of contract

Answer 5

No consideration needed if modification is in writing and signed by the party to be charged or their agent

Question 6

Statute of Frauds

AGREEMENTS

Answer 6

Within the statute:
1. promise to pay discharged debt
2. assignment of insurance policy or promise to name beneficiary
3. contracts to pay commission or finder’s fee.
unless attorney auctioneer, licensed real estate broker is involved.

Question 7

Main purpose rule

Answer 7

Promisor required to come under independent duty of payment irrespective of liability of principal

Question 8

Intent in land

EQUAL DIGNITIES RULE

Answer 8

Principal agent relationship

Agent must be authorized in writing or principal must ratify

Question 9

Effect of performance on contracts

Answer 9

Statute of frauds NOT applicable where there has been part performance of lease agreement

Question 10

Right to terminate within year

Answer 10

If party seeks enforcement and is only one who held right to terminate, contract is within statute of frauds

Question 11

Lifetime contracts

Answer 11

Within statute of frauds because by its terms such contract is NOT performable within a year

Question 12

Substantive and procedural unconscionability

Answer 12

Determination of unconscionability requires a showing that contract was procedurally and substantially unconscionable when made

Question 13

Mental Incapacity

Answer 13

Unadjudicated incompetent, contract NOT voidable unless incompetent can restore other party to previous position.

Adjudicated incompetent, contract VOID

Question 14

Parents’ obligation to furnish necessaries

Answer 14

Infant liable on contract for necessaries if has NO other way to obtain.
If infant resides with parent or guardian who supports, infant wont be bound by contract that would be considered for necessaries.

Question 15

Large lot zoning

Answer 15

May be construed as attempt to exclude certain people from community.
To overturn it, plaintiff must show 1 of 3:
ordinance enacted with exclusionary purpose.
ordinance ignores regional needs and has unjustified exclusionary effect.
local board didn’t provide properly balanced and well ordered plan for community and didn’t give consideration to regional needs and requirements.

Question 16

Standing to challenge in zoning

Answer 16

Members of property owners’ association, even if NOT owning affected land, affected by adverse decision have standing to sue.

Associations CANNOT assert damages claim on behalf of individual members arising out of alleged zoning abuses.

Question 17

Unconstitutional takings and exactions

Answer 17

Actual appropriation or taking by title or govt occupation or management is required before will apply principles of constitutional limitation or taking.
Complaining landowner must establish BEYOND REASONABLE DOUBT that under ordinance, he cannot obtain reasonable return under any use other than public or quasi public use permitted by ordinance.

Question 18

Deficiency judgment

Answer 18

If sale proceeds are less than judgment in foreclosure action and mortgagor has been personally served in foreclosure action, mortgagee can ask court for deficiency judgment.
If no demand made for deficiency within 90 days of sale proceeds, regardless of amount, are deemed to be in full satisfaction of mortgage debt.

Question 19

Mortgage transfer without note

Answer 19

Assignment of mortgage without note is VOID.

Assignment, mortgage ALWAYS FOLLOWS THE DEBT.

Question 20

Race notice statute

Answer 20

Race notice jurisdiction

Question 21

Statutory special warranty deed

Answer 21

Bargain and sale deed

Question 22

Statutory redemption

Answer 22

Equitable right of redemption only PRIOR to sale.

NO statutory right of redemption AFTER sale, regardless of who buys at sale.

Question 23

Foreclosure

Answer 23

Foreclosure by action in equity and sale, where property is sold and proceeds are distributed among interested parties.
Strict foreclosure, action in equity to compel parties entitled to right of redemption to exercise it by paying mortgage debt within reasonable time, or be forever barred on right of redemption.

Question 24

Lien theory

Answer 24

follow the lien theory

Question 25

Note transfer without mortgage

Answer 25

Mortgage ALWAYS follows the note, even if assignment of note is SILENT as to mortgage.
Mortgage ALWAYS follows debt.