ube_copy_20190711104541 Flashcards
how are intestate shares usually distributed?
per capita with representation
what inheritance rights do stepchildren have?
none
The decedent and her only child were involved in a plane crash. Neither was alive when the emergency team reached them. The child, who died without a will, is survived by a spouse. The decedent is survived by only a brother. The decedent left a sizeable intestate estate and a life insurance policy naming the child the sole beneficiary. Who will share in the decedent’s estate, and who will take the insurance proceeds?
decedent’s brother.Both parties were dead when help arrived; thus, there is no sufficient evidence that one survived the other. The decedent’s estate will be distributed as though she survived the child. If the child predeceased the decedent, the decedent’s brother is her only intestate heir and will take the estate. The USDA also applies to life insurance, so the insurance proceeds will be paid to the decedent’s estate and also pass to the brother.
Under the Uniform Simultaneous Death Act (“USDA”), when the title to property or its devolution depends on priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, how is property disposed?
The property of each person is disposed of as if he had survived.
Does the Uniform Simultaneous Death Act (“USDA”) apply to life insurance?
Yes.
If one of two joint tenants kills the other, how is title to the property held?
The killer and the victim’s estate each own one-half of the property as tenants in common.
To execute a valid attested will, the testator must sign the will in the presence of two attesting witnesses who must:
Sign in the presence of the testator.
When a specifically bequeathed item is not in the testator’s estate at his death, what will the court consider in determining whether the bequest is adeemed?
Whether the property was disposed of by a guardian. Intent is irrelevant!
When will a court consider extrinsic evidence to interpret a will?
When the language of the will is ambiguous.
special power of appointment
exercisable in favor of a limited class of appointees that does not include the donee, her estate, her creditors, or the creditors of her estate
general power of appointment
exercisable in favor of the donee herself, her estate, her creditors, or the creditors of her estate
presently exercisable general power of appointment
exercisable by the donee during her lifetime in favor of the donee, her estate, her creditors, or the creditors of her estate; also exercisable by the donee’s will unless the donor expressly limited its exercise to the donee’s lifetime
testamentary power of appointment
Exercisable only by the donee’s will. The fact that the power was created by a testator’s will does not make it a testamentary power. The key is when the power is exercisable.
Does marriage subsequent to a will’s execution revoke the will by operation of law?
No; the new spouse is protected by the elective share statute.
Does divorce revoke life insurance policies in favor of the former spouse?
No! Disposition of the proceeds is governed by the contract with the life insurance company. Thus, if the decedent fails to change the named beneficiary from his former spouse subsequent to their divorce but prior to his death, the former spouse takes the proceeds.
The testator’s son is married with one child. If the testator bequeaths property to his son’s wife, and the son and the wife subsequently divorce, who takes that property on the testator’s death?
The son’s former wife. (The only divorce potentially impacting the estate would be that of the testator.)
When does a beneficiary who unsuccessfully contests a will with a no-contest clause NOT forfeit her bequest?
when the challenge was brought in good faith and based on probable cause
When is extrinsic evidence admissible in interpreting a will?
to show that the testator was unaware of the nature of the instrument he signedto resolve ambiguity of intent in the will
Totten trust
deposit of money in the depositor’s own bank account in trust for another person
When does a presumption of undue influence arise?
(i) a confidential relationship existed between the testator and beneficiary, and (ii) the beneficiary participated in in a significant activity related to the execution of the will, such as procuring or drafting the will.
key essay phrases
The distribution of the estate will depend on the law followed by the jurisdiction.The will speaks at time of death.Valid disclaimers are treated as though the person predeceased.
ademption
Failure of a gift because the property is no longer in the testator’s estate at time of death.
probate
process by which a will is proved in court
cy pres
near as possible to the testator’s or donor’s intentions when these cannot be precisely followed (money left to IJM, IJM no longer exists, so it goes to Out of Darkness)
requirements to revoke by written instrument
present intent to revoke, instrument executed with same formalities as required to execute a will
acts sufficient to revoke a will
vary by state, but generally:burning, tearing, obliterating, canceling a material portion
quantum meruit
reasonable sum of money to be paid for services rendered when the amount due is not stipulated in the will (or any contract)
what prevails when the common law and UCC Article II differ on the sale of goods?
UCC
“goods” for UCC Article II purposes
tangible things, but not real estate, services, intangibles (patent, etc.)
Article II “merchant”
one who regularly deals in goods of the kind or otherwise holds himself out as having special knowledge or skills relative to the practices/goods sold
why are quasi-constructed?
to avoid unjust enrichment
unilateral contracts recognized under UCC
clear and unambiguous understanding that completion of performance is the only manner of acceptanceoffer to the public, like a reward offer
void v. voidable contract
can’t be enforced v. party may elect to enforce
contract elements
mutual assent (offer and acceptance)consideration (bargained-for exchange or substitute)no defenses (mistake, illegality, statute of frauds, lack of capacity)
requisite specificity for subject in real estate contract
land and price terms
requisite specificity for subject in sale of goods contract
quantity
requisite specificity for subject in employment/services contract
duration for employment; nature of work for other services(if an accepted offer doesn’t specify duration for employment, considered terminable at the will of either party)
when is a contract missing terms still deemed formed?
parties intended to make a contractreasonably certain basis for remedy (court can supply reasonable terms, like price for goods or reasonable time for completion)
offer when a material term is ambiguous?
no; neither under common law nor UCC (different from missing term!)
how can uncertainty of a vague term by cured?
acceptance or full performance
when can an offer be indirectly revoked?
when offeree receives:correct infofrom a reliable sourceof offeror’s acts indicating to a RPP the offer is off the table(sold the car to someone else)
when is revocation effective?
when received by offeree (unless published; then it’s effective when published)
under UCC Art. II, how long is a merchant’s firm offer open (not revocable) without consideration
often stated; otherwise a reasonable time, up to three months(if the offer says the option will stay open for more than three months, it’s only valid for three months)
when does a unilateral offer become irrevocable?
once performance has begun
counteroffer: new offer or rejection?
both
test for mere inquiry or counteroffer
whether a reasonable person would believe the original offer was rejected
when is rejection effective?
when received by offeror
what operations of law terminate an offer?
death or insanity of either partydestruction of K’s subject mattersupervening illegality
can an offeree’s power of acceptance be assigned?
generally not
if A sends B an offer and B sends A the same offer, is a K formed? what if the offers contain the same terms?
never. offeree must be aware of the offer!
if A finds O’s watch and returns it to O without knowledge of O’s reward offer, does A have a contractual right to the reward?
no
is the offeree of a unilateral contact required to give the offeror notice that performance has begun?
no, but notice of completion is required within a reasonable time
when can silence constitute acceptance of a bilateral offer?
when, given prior dealings or trade practices, silence as acceptance is commercially reasonable
how does UCC Art. II construe shipment of nonconforming goods?
acceptance creating bilateral K and a breachUNLESS seller seasonably notifies buyer that a shipment of nonconforming goods is offered only as an accommodation
is a buyer required to accept an accommodation?
no
what happens if a buyer rejects an accommodation? wny?
shipper is not in breach; may reclaim the goods because her tender doesn’t constitute acceptance of the original offer
under UCC Art. II, how is an offer to buy goods for current or prompt shipment construed to invite acceptance?
by promise to ship, or by current/prompt shipment of conforming OR nonconforming (accommodation) goods
does the accommodation rule apply when shipment is not used as the form of acceptance?
no
does UCC Art. II adhere to the mirror image rule?
no (but recall, Art. II doesn’t apply to real estate, services, etc. – mirror image rule still applies there)
Under UCC Art. II, when an offer for purchase or sale of goods is accepted with additional terms, is the acceptance valid?
yes
Under UCC Art. II, when any party is a nonmerchant, what is the impact of additional or different terms?
mere proposals–terms of the offer govern
Under UCC Art. II, when both parties are merchants, are ADDITIONAL terms accepted?
usually, unless:-they materially offer original terms-offer expressly limits acceptance to its terms-offeror already objected to terms or does so within a reasonable time
Under UCC Art. II, when both parties are merchants, are DIFFERENT terms accepted?
authorities split (some follow knockout rule, some treat different terms as additional terms)
how to construe acceptance made expressly conditional on the acceptance of new terms?
rejection
what if a contract is not formed by parties’ communications, but they begin to perform as if they formed a contract?
formation!
mailbox rule
acceptance by mail creates a contract at the moment of dispatch, provided the mail is properly addressed and stamped
mailbox rule exceptions
offer stipulates acceptance not effective until receivedoption contact involvedofferee sends rejection then acceptance (whichever ARRIVES first is effective)
does mailbox rule apply to rejection or revocation?
no; the rule applies only to acceptance
Per UCC, when is an auction sale complete?
When the auctioneer so announces by the fall of the hammer
consideration elements
bargained for exchangeof legal value (benefit to promisor/detriment to promisee)
does past or moral action as consideration constitute a bargain?
no
can a preexisting legal duty constitute consideration?
no, unless:-new or diff consideration is promised-promise is to ratify a voidable obligation-preexisting duty is owed to a third person-honest dispute per duty-unforeseen circumstances sufficient to discharge
may a promise to refrain from suing on a claim constitute consideration?
yes, if the claim is valid or the claimant believed in good faith that the claim was valid
when can a contract be voidable on grounds of mutual mistake?
BOTH parties mistaken about existing facts re:-a basic assumption-mistake has material effect on the exchange-party seeking avoidance did not assume the risk of the mistake
who can void a contract on grounds of mutual mistake?
the adversely affected party
fraud in the inducement and recourse
party induces another into K by fraudulent misrepresentation; K voidable by innocent party is she justifiably relied on the misrepresentation
material misrepresentation and recourse
innocent party justifiably relied on misrepresentation (fraudulent or not) and the point was material. Voidable.
must fraudulent misrepresentation by spoken or written?
no; can be inferred from conduct. (concealing a fact, frustrating investigation of a fact, etc.)
when can an innocent party take action against misrepresentation?
immediately–doesn’t need to sue on the K; can affirmatively act in equity to rescind the agreement and pursue all breach of K remedies
what if there’s no consideration?
there’s no K
are contracts induced by duress or undue influence void?
no, but voidable.
surety promise
promise to pay another’s debt
statute of frauds requires
certain agreements must be evidenced by a writing signed by the party sought to be bound
SoF writing requirement
one or more writings that reasonably identify:K subjectK between partiesessential terms(don’t forget signature!)
could a memo written on a napkin satisfy SoF?
yes
SoF signature requirement
any mark or symbol with intent to authenticate
Per SoF, can signature be printed or typed?
yes
Per UCC, bay party’s initials or letterhead suffice for SoF signature?
yes
Must both parties sign to satisfy SoF?
No, only the party to be suedIn a suit by the buyer against the seller, an otherwise sufficient writing signed by seller but not the buyer satisfies SoF.
Agreements covered by SoF
MYLEGSmarriage(within one) yearlandexecutor (or admin)goods (for $500 or more)surety
Per Sof, what is the impact of a party admitting in pleadings or testimony that there is an agreement?
Treated as though the party signed a writing.
Per Sof, goods valued at $500 or more for which contracts are enforceable without writing
specially-manufactured goodsadmissions in pleadings or courtpayment or delivery of goods (but K not enforceable beyond quantity of goods accepted/paid for!)
Mnemonic for signed writing by party to be charged not required for goods valued at $500 or more
SWAPspecially made goodswritten confirmation by merchantadmission in courtperformance
What remedies are available is a contract violates the SoF?
sue for reasonable value of service of part performance rendered, or the restitution of any other benefit conferred
Unconscionability is determined by circumstances as they existed ____.
at the time of contract formation
The concept of unconscionability permits a court to ___.
refuse to enforce a provision or an entire contract
When is a suretyship promise outside the SoF?
When made for the promisemaker’s own gain.(Homeowner promises to pay contractor’s debt to building supplier if contractor doesn’t pay, so contractor can obtain supplies to work on homeowner’s house).
If contract provisions appear inconsistent, do written or typed provisions prevail?
written
Against whom are ambiguous provisions construed?
Against the party preparing the contract
Rank of weighting indicators when rules of construction conflict:
express termscourse of performancecourse of dealingtrade usage
basic contract duty at common law versus UCC Art. II
common law: substantial performanceUCC: perfect tender
noncarrier case
sale in which it appears parties did not intend that the goods be moved by carrier
when is payment due for carrier and noncarrier cases?
carrier: due when shippednoncarrier: due when delivered
implications of failure of promise v. failure of condition
failure of promise: breach (gives rise to liability)failure of condition: relieves party of obligation to perform
condition precedent
must occur before performance is due
condition concurrent
condition to occur at the same time
condition subsequent
condition cuts off already existing duty
Agreement to pay “$10,000 if house is sold by April 1.” What type of condition?
condition precedent
Agreement to pay “10,000 for Blackacre. Money and deed exchanged in same transaction.” What type of condition?
condition concurrent
Agreement to buy Blackacre for $100,000 unless zoning is changed. If zoning is changed, no duty to pay $100,000 or transfer deed. What type of condition?
condition subsequent
Does the reasonable person standard apply if the contract involves personal taste or personal judgment? (portraits, dental work, etc).
Not if the contract included a condition of satisfaction.
supervening illegality
subject of contract became illegal due to subsequently enacted law
may impossibility arise before a contract was formed?
no
if a contract is discharged for impossibility, how my parties recover goods already delivered, payment already made, etc.?
suit for recision
impact of temporary impossibility
suspends duties; does not discharge
is a contract discharged after death of the party who was to perform services?
not if the services can be delegated (UNLESS unique service like a famous artist, etc.)
elements for discharge by frustration
supervening actnot reasonably foreseencontract purpose completely/almost completely destroyedboth parties realized purpose at formation
may a contract be mutually rescinded if the rights of a third party have already vested?
no
impact of minor breach v. material breach
minor breach: aggrieved party may recover damages but must still performmaterial breach: aggrieved party need not perform
Does UCC Art. II follow common law of substantial performance?
no
UCC Art. II perfect tender rule
If goods or their delivery fail to conform to the contract in any way, buyer generally may reject all, accept all, or accept any portion fo the commercial units and reject the rest
exceptions to perfect tender rule
installment contracts (then substantial performance applies, even under UCC)seller’s right to cure
What if buyer rejects defective goods and seller, giving reasonable notice of intent to cure, makes new tender of conforming goods?
buyer must accept
What if buyer rejects defective goods that seller reasonably believed were acceptable?
On reasonable notice to buyer, seller may take reasonable time BEYOND contract deadline to produce conforming tender
Per UCC Art. II, can a defective shipment in an installment contract be rejected?
Not if the defect can be cured.
benefit of the bargain damages
sufficient money to purchase substitute performance
when are buyer and seller damages measured?
buyer’s: time she learns of breachseller’s: time for delivery
Standard UCC SoL
four years from breach (can be shortened, but no shorter than one year from breach)
Does the mailbox rule apply when an offer states that acceptance will not be effective until received?
No.
Does the mailbox rule apply when the offeree sends a rejection followed by acceptance?
No; whichever is received first controls.
Per UCC, does a merchant have to sell goods of the kind?
No. Almost anyone in business who has knowledge of certain business practices is considered a merchant in that business. For UCC purposes, a professional pianist is a merchant in the piano selling business.
When does an implied-in-fact contract arise?
When assent is manifested by conduct, as opposed to assent by oral or written language.
when may a condition imply a promise?
when the condition’s occurrence is w/in the benefactor’s control: that party impliedly promises a good-faith effort to make the condition happen
do courts prefer promise or condition?
promise, because it supports the contract (condition may release)
where common law and UCC Art. II differ on sale of goods, what prevails?
UCC Art. II
merchant’s firm offer
Per UCC Art. II: if a merchant makes a signed, written promise to keep an offer open, it will not fail for lack of consideration during the time stated, or a reasonable time if none stated (up to three months)
test for determining mere inquiry
whether a reasonable person would believe the original offer was rejected
when is rejection effective?
when received by the offeror
Does the mailbox rule apply when the offeree sends acceptance followed by rejection?
Yes (though if offeror receives rejection first and relies on it to his detriment, promissory estoppel can block contract enforcement)
Statute of Frauds exceptions
judicial admission (party admits to K in pleadings or testimony)part performance (2 of pay/possess/improve)estoppel
What is the UCC’s time limit on the irrevocability of a merchant’s firm offer?
three months
Can a promise not to sue over a conflict be valid consideration, even if ultimately the premise of the threatened suit turns out to be untrue?
Yes. The person threatened with suit had the right to investigate before agreeing.
Must the modification of a contract for services be supported by consideration?
Yes.
Per the UCC, what happens if a firm offer is specified for beyond three months?
Rather than invalidate, the firm offer will stand; but it will only last for the three-month maximum.
Under the UCC, what if there is no consideration for an offer by a merchant to buy or sell goods in a signed writing, by its terms, gives assurances that it will be held open?
The offer is not revocable for lack of consideration during the time stated (not to exceed three months).
Under the UCC, if an offer by a merchant to buy or sell goods includes a term assuring that the offer will be held open via a form supplied by the offeree, what else must occur for the option to be valid?
The form supplied by the offeree must be separately signed by the offeror.
Can an option contract be prematurely ended by the offer?
No.
If a promisor fails to perform under a contract, a donee third-party beneficiary whose rights have vested can sue whom, and on what grounds?
The promisor, to enforce the contract. Absent detrimental reliance, a donee beneficiary cannot sue the promisee because generally there is no right to sue for nondelivery of a gift.
Per the UCC, regardless an FOB agreement for passing title, when may a seller refuse to deliver except for cash?
When the buyer becomes insolvent.
UCC remedies when buyer refuses to accept conforming goods:
Seller may recover incidental damages PLUS:-diff in market price and contract price-diff in contract price and resale price-lost profits (diff in contract price and at-cost value, if merchant could’ve made additional sales – a la car dealers)
When a builder in construction breaches and doesn’t complete, what may the builder recover?
Costs of substantial performance less whatever the customer had to pay to have someone else complete the work.
When will a penalty provision be enforced?
When it’s construed as a liquidated damages provision.
When can a builder who breaches a construction contract part of the way through construction recover the FULL performance price less the cost of substitute completion?
When substitute builders were readily available to the customer.
May a party seek specific performance when a legal remedy is adequate?
No
May a partial integration be contradicted?
No; only supplemented by evidence of additional consistent terms.
Per UCC, in a deal between merchants, when does it not matter that the party to be bound didn’t sign something?
If the other party confirms the deal in writing and the party to be bound doesn’t object within 10 days.
Can minors be held liable for restitution regarding benefits they received from contracts they made for necessities?
Yes.
If a 17-year old begins an installment contract and continues making payments after turning 18, has he affirmed the contract such that it is enforceable against him?
Yes.
cumulative zoning
creates hierarchy; then land can be used for named use or any higher-ranking use
variance
departure from zoning restriction
amortization
gradual elimination of nonconforming use within land zoning
is the right to airspace above a parcel exclusive?
no, but owner is entitled to freedom from excess noise
doctrines of watercourse rights
riparian (water belongs to those whose land borders the water course; only to be used on riparian parcel)prior appropriation (rights acquired by actual use, determined by priority of beneficial use)
liability for an owner of land in its natural state if excavation causes subsiding (slipping or caving in?)
strict liability
liability for an owner of land ADJACENT to buildings if his excavation causes trouble?
strict liability if est. that land would’ve collapsed in natural stateotherwise only liable if excavation was conducted negligently
can redemption in equity be waived in a mortgage?
no
redemption in equity
prior to foreclosure sale, mortgagor may redeem property by paying the amount due.if the note/mortgage contains an acceleration clause, mortgagor must pay full balance (including any interest)
which interest does foreclosure destroy?
the interest being foreclosed and any junior interests(if a junior interest holder is inadvertently excluded from a foreclosure matter, that holder’s interest remains)
purchase money mortgage
takes priority over prior claimsmaybe given to the seller as part of the purchase price, or to a third party
priority of foreclosure proceeds
expenses/attorneys’ fees/court costsforeclosed loanjunior loans
what if foreclosure proceeds are insufficient to satisfy the mortgage debt?
mortgagee retains a personal cause of action against the mortgagor (deficiency judgment)
lien theory
Mortgagee holds a security interest only; mortgagor is landowner until foreclosure.Mortgagee can’t take possession of land before foreclosure!
When, prior to foreclosure, may mortgagee take possession?
when mortgagor consents or abandons
When property is damaged or destroyed before the testator’s death buy the casualty insurance proceeds are not paid until after the death, does ademption apply?
No. The beneficiary of the specific bequest takes the insurance proceeds.
Do anti-lapse statutes pass gifts to a predeceasing beneficiary’s spouse?
Never. The predeceasing beneficiary’s descendants are substituted.
What is an installment land contract and what is its common forfeiture clause?
Dictates installment purchaser obtains legal title only when the full contract price is paid.Common forfeiture clause: on default, vendor cancels the contract, retakes possession, and retains all money paid.
How are recording acts protective?
They protect bona fide purchasers from the detriment of prior secret interests.
Is recordgin essential to the validity of a deed between grantor and grantee?
Not in itself; but can be essential to protecting the deed from subsequent BFPs.
notice statute
Land conveyances/mortgages, if not recorded, not valid against subsequent BFPs(“notice is everything”)
subsequent BFP
paid valueno actual or constructive notice of prior sale
race-notice statute
subsequent BFP must take without notice and record before the prior granteelack of notice means first in time doesn’t take priority, but the race to record still trumps all
race statute
notice is irrelevant; whomever records first winsrare statute
are donees, heirs, and devisees protected any recording acts?
no: they didn’t pay anything, so that. can’t be BFPs
shelter rule
anyone who takes from a BFP steps into the BFP’s shoes and is likewise protected by recording acts(unless transferee held prior title and is trying to beat the system moving through a BFP)
Is a BFP’s statues impacted by learning of a prior recording between conveyance and recording?
No; only notice at time of conveyance matters.
Does a BFP have a legal duty to perform a title search?
No, but subsequent purchasers are held to whatever notice such a search would have provided
wild deed
not connected to any chain of titleO conveys Blackacre to A. A doesn’t record. A contest to B and B records.O then conveys Blackacre to C. C does NOT have notice of B’s claim.
covenant of seisin
grantor possesses and passes both title and possession at time of grant
covenant for quiet enjoyment
grantor covenants that the grantee’s possession will not be disturbed by a lawful third party claim of title
quitclaim deed
releases whatever interest the grantor has; covenants of title neither included nor implied
three covenants which can only be breached at time of conveyance
seisinright to conveyagainst encumbrances
what if a grantor purports to convey a property she does not own, then she subsequently acquires it?
the property automatically goes to the grantee (unless the grantor only ever conveyed a quitclaim deed)
impact of deed to a dead person
void, even if grantor was unaware of the death. title remains with grantor
impact of grantee returning deed to grantor
none: grantee must draw up and deliver a new deed to return title
Valid delivery when a grantor transfers to grantee via third party WITHOUT CONDITION?
Valid is grantor gave such instructions.Without instructions, validity depends on how the third party is construed. If grantor’s attorney, delivery valid. If considered grantor’s mere agent, delivery invalid because grantor did not pass power.
Valid delivery when a grantor transfers to grantee via third party WITH CONDITION?
Commercial transaction. Valid, and parol evidence is admissible to show condition.
When a grantor transfers to donee via third party WITH CONDITION, may grantor revoke?
Yes, so long as condition is not grantor’s death and there is no enforceable contract to convey.
necessary inclusions for a valid deed
in writingsigned by grantorreasonably identify parties and land
deed valid if name of grantee or land description blank?
generally valid without grantee’s nameland description blank, deed void unless grantee was expressly given authority to fill it in
how precise must a deed’s land description be?
must provide a GOOD LEAD “all my land in Auburn”
Is parol evidence available to explain a good lead?
Yes, but not admissible if the land description is totally silent.
Doctrine of equitable conversion
Once contract is signed, buyer owns real property and seller’s proceeds are personal property
Once a land sale contract is signed, who bares risk of loss prior to closing?
Majority places risk on the buyerBUT seller must credit any fire/casualty insurance proceeds received against the purchase price
Is title acquired by adverse possession marketable?
no
May seller satisfy a mortgage or lien with sale proceeds at closing?
yes
Do zoning restrictions impact marketability?
Not unless there is an existing violation. Then, title is unmarketable.
Does implied covenant of marketability apply after closing?
No. The seller is no longer liable on the implied covenant after closing. Then, seller is liable only for express promises made in the deed.
Who assesses marketability of title and what are those responsibilities?
Buyer must notify seller is title is unmarketable, and provide reasonable time to cure.
Does a quitclaim deed affect the implied covenant to provide marketable title?
No. But the covenant still goes away if the buyer doesn’t look into marketability and closes on the sale.
In conveying land sale contracts, is the closing date binding?
No. Courts presume time is not of the essence. A party rendering late performance can still enforce the contract within a “reasonable time” (maybe two months).
adverse possession elements
actual entryopen and notoriousadverse/hostilecontinuous through statutory period
May two or more people obtain title by adverse possession?
Yes: they take as TC.
For adverse possession, does the statutory period begin to run if the true owner was disabled when the cause of action first accrued?
no
Is adverse possessor subject to restrictive covenants on the land?
Not if she used the Landin violation of the restrictive covenant for the statutory period.
What land cannot be adversely possessed?
government-owned landland registered under Torrens system
equitable servitude
covenantregardless whether it runs with the land at law, equitably enforced against assignees of burdened land who have notice(remedy usually injunction)
May a single promise create an equitable servitude and a real covenant?
yes, generally! diff is often remedy sought
Do real covenants and equitable servitudes require a writing?
Real covenants always do.Equitable servitudes generally do, though they may be implied from a common scheme for development in a subdivision.
What if a subdivision developer begins selling lots with a restrictive covenant after the first few are sold?
The restrictive covenant does not apply to the first few.
Is there horizontal privity between two landowners who agree to maintain a fence between their properties?
No. Must have grantor/grantee, landlord/tenant type of relationship.
For an equitable servitude, what is required for a benefit or burden to run?
benefit: intenttouch and concernburden: add vertical privity
For a real covenant, what is required for a benefit or burden to run?
benefit:intenttouch and concernnoticeburden:add horizontal, vertical privity
May a license be transferred?
No, it’s inalienable. Any attempt to transfer results in revocation by operation of law.
If a grantor orally grants an easement for more than a year what result?
Unenforceable because it’s not in writing, but the grantee does have a valid easement.
When do easements created by necessity end?
As soon as the necessity ends.
Remedy for overuse or misuse of an easement?
Injunction. Does not terminate!
Time-limit of an easement
Presumed perpetual unless the grant specifically limits
affirmative easement
holder makes affirmative use of the servant tenement
negative easement
holder entitled to compel possessor of servant tenement to refrain from certain activity on the servient estate
easement appurtenant
dominant tenement gets to use or enjoy the servient tenement
Does an easement appurtenant pass with transfer of benefitted land?
Yes, regardless whether mentioned in the conveyance.
May an easement appurtenant be conveyed apart from the dominant tenement?
No, unless conveyed to the owner of the servient tenement to extinguish the easement.
easement in gross
holder acquires right to use servient tenement independent of possession of another tract of land
Are easements in gross transferrable?
Not for personal use (right to swim in a lake), but they are for commercial use (right to erect billboards, etc.)
Methods of creating an easement
express grant or reservationimplicationprescription
express easement grant
memorialized in writing, signed by servient tenement holder (unless for less than a year)generally must reasonably identify parties and land, like a deed
express easement reservation
grantor conveys title to land but reserves the right tot continue to use the tract for a special purpose
May a grantor reserve an easement for someone else’s use?
Generally not.
easement by prescription and elements
easement acquired by adverse possessionopen and obviousadversecontinuous and uninterruptedfor statutory period
Does an easement holder have duty to make repairs?
Yes, if he is the sole user.
Does overuse or misuse of an easement terminate the easement?
No, but the servient owner may file for an injunction.
Are easements, covenants and servitudes considered possessory interests?
No, they are nonpossessory interests in land. they create a right to use land possessed by someone else.
fixture
chattel that has been affixed to the land such that it ceased to be personal property and becomes part of the realty
Do chattel become fixtures in landlord-tenant property?
Generally, tenants are deemed to lack intent to permanently improve the premises, so they can remove their chattels before the end of the lease so long removal does not substantially damage the premises or destroy the chattel.
At common law, does a landlord have a duty to make premises safe?
No. Exceptions:must disclose concealed dangerous conditions known or should’ve known aboutcommon areasknows/should’ve known of dangerous condition and failed to repair despite knowing tenant may admit the public before repairfurnished short-term residence (like summer cottage)negligent repairs (regardless whether there was a duty to make them)landlord contracts to repair
Per modern trend, does a landlord have a duty to make premises safe?
landlords owe reasonable care and are liable for negligence when there is notice of a defect and opportunity to repair.
Differentiate leasehold assignments and subleases
assignment: complete transfer for remaining termsublease: transfer for part of the remaining term
consequences of assignment
assignee is liable for covenants that run with the land, and pays rent directly to the landlord
consequences of sublease
rent to lesseenot liable for any covenants unless expressly assumed
May a valid covenant against assignment be waived?
Yes, if landlord is aware and does not object
Is a landlord in breach if he has not evicted a holdover tenant by the beginning of someone else’s lease term?
Yes. Most states require the landlord to put the tenant in ACTUAL possession.
quiet enjoyment
implied covenant in every lease: no interference with tenant’s quiet enjoyment and possession of premises
what breaches the implied covenant of quiet enjoyment?
actual, partial, or constructive eviction
impact of partial eviction on rent?
if partially evicted by the landlord, tenant no longer liable for any rentif partially evicted by a third party with paramount title, tenant pays reduced rent
constructive eviction elements
landlord breaches dutybreach substantially, materially deprives tenant of use/enjoymenttenant gave landlord notice and reasonable time to repairtenant vacated premises after reasonable time
constructive eviction remedy
tenant may terminate lease and seek damages
May a tenant who remains on the premises claim constructive eviction?
No.
Is an implied warranty of habitability waivable?
No.
Tenant’s options when an implied warranty of habitability is broken?
terminate leasemake repairs and offset cost against future rentabate rent in amount equal to fair rental value given defectsremain in possession and pay full rent, and sue for damages
Does implied warranty of habitability apply to commercial tenants?
No
voluntary/affirmative waste by leasehold tenant
intentional or negligent property damage or mineral exploitation
permissive waste by leasehold tenant
tenant fails to take reasonable steps to protect premises from ordinary damage from the elementstenant is liable for all ordinary repairs
ameliorative waste by leasehold tenant
tenant alters property and increases its valueleasehold tenant generally liable for costs unless he is long-term and the change reflects changes in the neighborhood
Landlord remedies when tenant on premises fails to pay rent
evict or sue for rent
unlawful detainer statute
state law permitting landlord to sue tenant on premises and not paying rent for rent, or to evictonly issue is whether tenant has right to possessiontenant may not bring counterclaims!
May tenant bring counterclaims in an unlawful detainer proceeding?
no
If tenant abandons, does the landlord have any duty?
Yes: dusty to mitigate damages by seeking to relet the premises.
tenancy for years
definite ending date, at which the lease automatically terminatesalso terminates if the tenant surrenders and landlord accepts
periodic tenancy
continues for successive period until terminated by proper notice of either party
how can a periodic tenancy be created?
express agreement (month to month lease)implication (L leases to T at $1000 rent payable monthly)operation of law (T remains in possession after lease expires, and L treats it as a periodic tenancy)
tenancy at will
at creation, both parties expressly agree the lease is terminable by notice of either party (also terminated by operation of law, like death)
tenancy at sufferance
holdover: tenant wrongfully remains in possession after lease endslasts until landlord evicts, at which point notice is not required
holdover doctrine
if tenant continues possession after right to possession ends, landlord may evict or bind him to a new periodic tenancy (generally under same terms).
holdover doctrine exceptions
landlord can’t bind tenant to new tenancy when:tenant remained in possession for only a few hours after termination, or left a few items of personal property behinddelay is not tenant’s fault (sickness, etc.)
joint tenancy with rights of survivorship
held in equal shares, and whomever outlives takes all.full equality: holders must take identical interests at the same time by the same instrument with the same right to possession
impact when a joint tenant conveys her undivided interest (whether voluntarily or involuntarily)
JT destroyed and transferee takes as TC
Does a lien against a joint tenant sever the tenancy?
Only when actually sold at foreclosure.
tenancy by entirety
marital estate akin to joint tenancyonly severed by death, divorce, mutual agreement, execution by joint creditor
May an individual spouse convey or encumber TE property?
No.
Which concurrent estates include right of survivorship?
JT, TE, not TC
conveyance language for JT
To A and B as joint tenants with the right of survivorship(without survivorship language, may be construed as TC)
conveyance language for TE
To A and B (when they’re married)
conveyance language for TC
To A and BorTo A and B as joint tenants (w/o survivorship language)
What happens to JT if one tenant murders the other?
Converts to TC and victim’s heirs inherit his interest
Are TCs entitled to possess the whole?
Yes, even if they have less than equal interests
Must a co-tenant in possession share profits from her own use of the property with other tenants not in possession?
No, but she must share net rents from third parties and net profits gained from exploitation of the land like mining.
Do mortgage or foreclosure sever JT?
Mortgage won’t, but foreclosure will.
Risk run by mortgagee when someone mortgages their interest in a JT
If obligated co-tenant dies before foreclosure, mortgagee’s interest is extinguished.
Impact of disabling restraint on any legal interest
Always void.
Rule Against Perpetuities
No interest in property is valid unless it must vest within 21 years after the measuring life.Any possibility that the interest might take more than 21 years to vest voids the interest.
When does RAP begin to run?
For wills, from testator’s deathFor deeds, from date of delivery
Does RAP apply to vested interests?
No
To A when and if he becomes a doctor
Springing executory interest
To A for life, then two ears after A’s death, to B
Springing executory interest
To A for life, remainder to B and her heirs; but if B predeceases A, then to C and his heirsWhat does C have?
Shifting executory interest
To A for life, then to B if B marries C
Contingent remainder
To A for life, then to A’s surviving children
Contingent remainder
To A for life, and on A’s death, to B; but if B predeceases A, then to C. What does B have?
Vested remainder subject to total divestment
To A for life, then to B
Indefeasibly vested remainder
Trust
Settlor owns property and, with intent, appoints trustee to hold legal title subject to enforceable equitable rights in a beneficiary
Rule of Convenience
Absent express contrary intent, a class closes soon as some member of the class can call for distribution.
T’s will devises the residue of his estate “to those of A’s children who attain the age of 21.” When does the class close if none of the children are 21 at T’s death?
When one of A’s children reaches age 21.
T’s will devises the residue of his estate “to A for life, then to those of A’s children who attain the age of 21.” Who gets what when?
A for life, then the class remains open until A’s death, even if some of A’s children were 21 at T’s death.
Are persons in gestation at the time a class closes included in the class?
Yes
“O to A for life.” What does O have?
A reversion
Are reversionary interests vested?
Yes, so never subject to the Rule Against Perpetuities.
Remainder
Future interest in a third person that can become possessory on the natural expiration of the preceding estate
Indefeasibly vested remainder
Created in an existing, ascertained person; not subject to condition precedent
Vested remainder subject to open
Created in a class of persons that is certain to become possessory but may grow (e.g., by birth of additional persons)
Vested remainder subject to total divestment
Created in a person and subject to a condition subsequent
O to A for life, then to the children of B. A and B are living and B has one child, C. What does C have?
Vested remainder subject to open
O to A for life, then to B and his heirs but if B dies unmarried, then to C and his heirs. What do B and C each have?
B has a vested remainder subject to total divestment, and C has an executory interest
Contingent remainder
Created in unborn or unascertained persons, or subject to a condition precedent
O to A for life, then to B and his heirs if B marries C. What does B have?
Contingent remainder subject to condition precedent(He must marry C before he can take possession)
O to A for life, then to B and his heirs if B marries C, otherwise to D and his heirs. What do B and D have?
B and D have alternative contingent remainders.
O to A for life, then to B and his heirs; but if B marries C, then to D and his heirs. What do B and D have?
B has a vested remainder subject to divestment by D’s executory interest.B has a vested remainder because there is no condition precedent.
O to A for life, then to B’s children. Before B has children, O purchases A’s life estate in a separate instrument. What is the result?
O has a life estate purchase autre vie and a reversion, which merge, destroying the contingent remainder in B’s unborn children.
ameliorative waste by life tenant
change that benefits the property economicallypermissible if market value isn’t demisedANDremaindermen do not object, or substantial, permanent change in neighborhood conditions deprived property of reasonable usefulness in its current state
permissive waste by life tenant
failure to:preserve land/structures in reasonable state of repairpay interest on mortgagepay ordinary land taxespay special assessments for public improvementsDuty LIMITED to extend to profits generated from the land (or reasonable rental value if there’s no profit)
affirmative waste by life tenant
Exploitation of natural resources BEYONDwhat’s necessary for repair or maintenancesuitable usewhat’s permitted by grantor
Open mines doctrine
Life tenant may continue finding conducted on the land prior to the life estate, but only through mines already open
life estate pur autre vie
Life estate measured by the life of another
defeasible fee
Uncertain or potentially infinite duration, terminated on the happening of a stated event
What type of language is necessary to establish a fee simple determinable?
durational language–must expressly speak to timewhile, during, until, for so long as
fee simple subject to condition subsequent
estate in which grantor reserves tight to terminate on happening of a stated event
fee simple determinable creates what future interest in grantor?
possibility of reverter
fee simple subject to condition subsequent creates what future interest in grantor?
right of entry, if expressly reserved
How will most courts likely interpret a convenes containing both duration language and a power of termination?
Fee simple subject to condition subsequent, because the forfeiture is optional and policy disfavors forfeiture of estates.
fee simple subject to executory interest
fee simple estate which terminates either as determinable or subject to condition subsequent, then passes to a THIRD PARTY (rather than reverter or right of entry)
When will conditions and limitations on executory interests be struck?
When in violation of public policy, like penalizing marriage.
To A and his heirs for so long as liquor is not sold on the premises; in that event, to B.
A has FSD, B has a shifting executory interest. But RAP likely applies, and because of the durational language “for so long as,” A has a fee simple determinable, and O has a possibility of reverter.
To A, but if liquor is ever served on the premises, then to B.
A has fee simple subject to condition subsequent, and B has a shifting executory interest.But RAP applies, and because of the conditional (not durational) language, B’s interest and the condition are stricken, and A holds in FSA.
Shifting executory interest
Comes from a preceding transferee’s estate (rather than from the grantor’s estate)
Springing executory interest
Comes from the grantor’s estate
O to A and his heirs when A marries B. What does A have?
Springing executory interest
O to A for life, then to B and his heirs; but if B predeceases A, then to C and his heirs. What does C have?
Shifting executory interest
If a sale of foreclosed property does not bring enough profit to satisfy the mortgage debt, against whom can the mortgagee/lender bring a personal action for the deficiency?
The mortgagee/lender can bring a personal action against the mortgagor/debtor for the deficiency (as long as the jurisdiction does not bar deficiency judgments).
When the mortgagor sells the mortgaged property and gives a deed, how does the grantee take?
The grantee takes subject to the mortgage, which remains on the land.
Mortgagor sells mortgaged property and gives a deed. If the grantee does not sign an agreement to assume the mortgage, who is liable for the mortgage?
The original mortgagor remains personally liable. Grantee does NOT become personally liable on the loan.
Mortgagor sells mortgaged property and gives a deed. If the grantee signs an assumption agreement, who is liable and who benefits?
Mortgage lender = third-party beneficiary of the assumption agreement, and may recover from:assuming grantee (primarily liable)ororiginal mortgagor (secondarily liable)
In foreclosure proceedings, when does a statutory right of redemption kick in?
AFTER a foreclosure sale
May a “course of dealing” interpretation be used to supplement vague terms in a real estate contract?
No! Course of dealing is UCC parlance, applicable only to the sale of goods.
“No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded.”What type of jurisdiction?
race-notice
A landowner owned a large tract of land containing numerous coal mines. To finance the renovation of some of the buildings on the land, the landowner obtained a $50,000 mortgage from a bank. Shortly thereafter, the landowner conveyed the surface of the land to his sister and the mineral rights to a utility company. The bank recorded its mortgage the next day; the day after that, the utility company recorded its deed; the following day, the sister recorded her deed. None of the parties dealing with the landowner had any knowledge of the others at the time of their transactions.The jurisdiction in which the land is located has the following statute: “No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded.”If the sister brings an action to quiet title to the land, what would be the most likely result?
The sister would have a fee simple interest subject to the mineral rights of the utility company and the mortgage held by the bank.
For the adverse element of adverse possession, need the “hostility” be mean spirited?
No. Requires-actions appear to community as ownership claim-not holding w/true owner’s permission
Must a grantee accept a deed for delivery to be effective?
Yes.
If a party begins tolling adverse possession BEFORE the landowner conveys the land to a minor, will the minor’s disability status impact tolling?
Not if the minor was born after tolling began. For disability status to impact tolling, the disability must be at issue at the time the tolling would naturally begin.
Does a transfer in true ownership interrupt the statutory period for adverse possession?
No.
A drunk man loaded his rifle and fired a bullet through his front door. Unbeknownst to him, someone was driving by the house. The bullet went through the front door, through the window of the car, and killed the driver. Is there sufficient evidence to support a finding of murder?
Yes. To support a finding of murder, the trial court would have to find that the shooter acted either intentionally or with malice aforethought. “Malice aforethought” can mean that the defendant is acting with reckless indifference to an unjustifiably high risk to human life.
Is voluntary intoxication is a defense to crimes requiring malice, recklessness, or negligence?
No.
In the case of recklessness, if a defendant’s lack of awareness results from voluntary intoxication, will his conduct be deemed reckless?
Yes.
Under the majority view, can criminal liability for murder be based on the death of a co-felon from resistance by the victim or police pursuit?
No.
PC or RS necessary for school searches?
Reasonable suspicion
Does a search warrant authorize police to search people found on the premises who are not named in the warrant?
No, unless they have probably cause to arrest a person discovered on the premises (and search incident to arrest).
May police executing an arrest warrant search for the subject of the warrant in a third party’s home?
Not without obtaining a separate search warrant for the third party’s home, unless there are exigent circumstances.
Larceny
taking, carrying away another’s propertyby trespassintent to permanently deprive
Embezzlement
fraudulent conversion of propertyby a party in rightful possession
Robbery
larceny + force/immediate threat of force
Extortion
larceny + threat of future harm
False pretenses
victim intended to give title to thief
Larceny by trick
victim intended to give mere possession
When must intent element be present for burglary?
at the time of forceful entry
If a burglar enters through an open door or window, can burglary be committed?
No; entry must be forceful.
When may non-deadly force be used in self-defense?
reasonable belie the party is threatened with imminent force
When may deadly force be used in self defense?
victim w/o faultconfronted with unlawful forcereasonably believes imminent deadly force/great bodily harm is threatened
Can a person who initiated confrontation use self defense?
Only after communicating meaningful withdrawal
When can deadly force be used to protect property?
Never; though deadly force may be used in self-defense when someone is within his or her home
M’Naghten insanity rule
doesn’t know right from wrong
Irresistible Impulse
unable to control behavior or conform it to the law
Durham Test
but for mental illness, actor wouldn’t have acted
MPC Insanity
M/Naghten + Irresistible Impulse
To what crimes may voluntary intoxication be a defense?
specific intent crimes
How is involuntary intoxication treated when assessing criminal conduct?
like insanity
Solicitation
asking another + intent
Attempt
specific intent + overt act
Conspiracy
agreement of multiple partiesto carry out an illegal act(mere preparation is enough!)
Specific intent crimes
first degree murderlarcenyburglaryassault a la attempted battery
Is withdrawal ever a valid defense?
Never to conspiracyCan be a defense to an underlying crime if an affirmative act gives all others adequate notice (such that they have time to withdraw if they so desire)
CL Murder
unlawful killing of another human with malice aforethought
Sufficient intent for murder
to killto commit serious bodily harmreckless indifference to unjustifiably high risk to human lifeto commit a BARRK felony
BAARK felonies
Sufficient intent for murderburglaryarsonraperobberykidnapping
Is heat of passion a defense?
No, it’s a reduction from murder to voluntary manslaughter.
What element separates first degree murder from second degree murder?
Deliberate, premeditated killing(cool, dispassionate)
How does malice need to be proven for felony murder?
It’s implied by the underlying felony
May a voluntarily intoxicated person commit depraved heart murder?
Yes; they can still exhibit a reckless indifference to an unjustifiably high threat to human life.
When may a private person use deadly force to effectuate arrest?
Only when the recipient of the force is actually guilty of the offense for which the arrest was made.
Will an unMirandized confession invoke fruit of the poisonous tree?
Not necessarily, if the failure to warn was unintentional.
Fruit of the poisonous tree: unMirandized confession v. involuntary confession
Exclusionary rule always invoked for involuntary confessions; not necessarily for unMIrandized confession if the lack of Miranda warning was unintentional.
Are persons temporarily detained at traffic stops “in custody” for Miranda purposes?
No
When may an otherwise-voluntary confession obtained in violation of Miranda be used?
Limited purpose of impeachment
When do Sixth Amendment rights attach?
Formal charges(when adversarial judicial proceedings commence)
Can a minor be convicted under a statute designed to curb alcohol sales to minors?
No; the minor is in the class the statute was designed to protect.
Is intent to kill required for murder/attempted murder?
Not for murder: unjustifiably high risk to human life is sufficientIntent IS required for attempted murder
define accomplice
intends to aid the principalintends that the principal commit the crimeactually aids/encourages the principal
Is ignorance of the law a defense against conspiracy?
No.
May one who solicits another to complete a crime be found guilty of both solicitation and the complete crime?
No.
Is mere knowledge that a crime will result from the aid provided sufficient for accomplice liability?
No; must also intend that the principal commit the crime
Two tests for sufficient evidence of attempt
MPC: “substantial step” (beyond mere prep)CL: proximity test (dangerously close to completion)
Is abandonment a valid defense when defendant withdraws at the last minute?
No: abandonment is only ever a defense if fully voluntary and complete (not mere postponement)
What makes evidence relevant?
Makes any pertinent fact more or less probable.
Habit distinguished from character
Habit describes a regular responseCharacter describes disposition
FRE 406
habit admissible to prove someone acted in accordance with habit on a particular occasion
“Jeff is a carless driver.” habit or character?
character
“Jeff never slows down for the yield sign at the end of the street.”habit or character?
habit
Liability insurance permissible?
Not for negligence or ability to pay (public policy)Yes for ownership/control, impeachment, liability admission
Settlement offers permissible?
Not to prove/disprove validity/amount of disputed claim, or to impeach a witness by prior inconsistent statement/contradiction.
Subsequent remedial measures permissible?
Not for negligence, design defect, need for warning (public policy)Yes for ownership/control, rebutting a claim that precaution wasn’t feasible, opposing party destroyed evidence
When are settlement offers permissible?
In a criminal case, when addressing statements made during compromise negotiations regarding a civil dispute with a government authority.(D admissions during civil settlement with SEC are admissible in his criminal trial)
Are offers to pay medical expenses admissible?
No, but accompanying statements of fact are.
Does taking the stand put a D’s character at issue?
No, but it puts his credibility at issue.
When is evidence of prior acts of misconduct admissible?
MIMIC:motiveintentmistake (absence of)identify common plan/scheme
ancient document provision
document may be authenticated by evidence that it is:at least 20 years oldcondition doesn’t leave authenticity suspectfound in a place where such a writing would be kept
x-ray authentication
accurate processmachine was in working orderqualified operator
who may identify a voice?
anyone who has heard the voice at any time
best evidence rule
To prove the terms of a writing, if the terms are material, must produce the original writing. Secondary evidence (oral testimony, etc.) admissible only if the original writing is unavailable.
handwritten copies–what type of evidence and when admissible?
secondary evidenceadmissible only when originals unavailable
when are leading questions permitted?
on crossto intro new materialwhen witness needs aid b/c of memory loss, immaturity, physical/mental weaknesshostile witness
when a past recorded recollection is read into evidence and heard by the jury, is it admitted into evidence as an exhibit?
only when offered by an adverse party
present recollection refreshed and past recollection recorded–hearsay?
present recollection refreshed: not HS b/c not offend into evidencepast recollection recorded: HS, but falls w/in an exception
when is lay witness opinion testimony admissible?
rationally based on witness perceptionhelpful to a clear understanding of testimony or determination of a fact at issuenot based on scientific, technical, or other specialized knowledge
May lay witnesses testify whether one acted as an agent?
No
May lay witnesses testify whether an agreement was made?
No
When may an expert not give an opinion on the ultimate issue?
When the defendant’s mental state is an element of a crime or defense, an expert may not state an opinion whether the accused had that mental state.
Per federal rules, what are the limits on impeachment?
Anybody may impeach anybody.
Per FRE, does an opportunity to explain or deny need to precede the introduction of a prior inconsistent statement?
No
What discretion does a court have to bar impeachment by evidence of past crimes concerning dishonesty?
None
What convictions are inadmissible?
Those for which conviction or release from jail (whichever later) is more than ten years passed
Does FRE permit an impeaching witness to speak to the character for truthfulness of another witness?
Yes
Is a privilege waived when someone wrongfully discloses privileged information without the privilege holder’s consent?
No
Does a waiver of a joint privilege holder impact the right of the other privilege holder to assert?
No
Does physician-patient privilege apply to an exam made at an attorney’s request?
No, because no treatment is contemplated.
Exceptions to attorney-client privilege
attorney’s services were sought to aid in planning/commission of something the client should have known was crime or fraudregarding communication relevant to an issue between parties claiming through the same deceased clientcommunication relevant to an issue of breach of duty in a dispute between attorney and client
Qualifications for physician-patient privilege
professional relationship existsinfo acquired in course of treatmentinfo necessary for treatment
Physician-patient privilege in personal injury suit?
No: the patient put his physical condition at issue
Ho long does spousal immunity last?
Length of the marriage (refusing to testify against spouse)
How long does privilege for confidential marital communication last?
Always (can’t divulge things said within marriage)
When no spousal privilege or immunity applies
Legal action between spouses, cases involving crimes against the testifying spouse or either spouse’s children
past recollection recorded doctrine
A party seeks to read into evidence the contents of a writing that was made or adopted by the witness. Requires foundation be laid.
Is a business record prepared in anticipation of litigation admissible under the business records HS exception?
No; must be prepared in the regular course of business.
What type of HS is an admission by a party opponent?
Non-HS.
If a party fails to respond to accusatory statements when a reasonable person would have spoken up, is that silence admissible?
Yes, as an admission, therefore non-HS.
When may the statement-against-interest HS exception be applied?
Declarant unavailable
Are plea bargains admissible?
Yes, as non-HS admissions if followed-through; withdrawn plea bargains, no los, etc. are not admissible.
What type of HS is an admission by a party opponent?
Non-HS
Is testimony regarding a defendant’s attempt to bribe a witness admissible?
Yes, as a non-HS admission.
What are the hearsay exemptions?
admissions by party opponentsprior statements:-inconsistent (if under oath at prior proceeding)-consistent (if rebutting charge of lying, and made before motive to exaggerate)-prior id: if testifying and subject to cross
HS exceptionsdeclarant availability irrelevant
present sense impressionexcited utterancethen-existing emotional, physical, mental statemedical diagnosis/treatmentpast recollection recordedbusiness recordpublic record
May police reports be admitted as public records in criminal cases?
No
When may a past recollection recorded be introduced, and on what terms?
attempt to refresh failedwitness wrote when event was freshwitness may read it into evidenceonly an opponent may admit the document into evidence
“I have a headache.”“I had a headache.”Which qualifies for HS exception?
“I have a headache”Then-existing mental/emotional/physical state
Why are excited utterances permissible HS exceptions?
Excitement precludes propensity to lie
HS exceptionsdeclarant unavailable
PRISMPrivilege (assertion)Refusal (to testify)IncapacitySubpoena (failure to comply)Memory (lack thereof)
Qualifications for dying declaration
HS exceptiondeclarant unavailablemust concern cause of death made when death believed imminentonly civil + criminal homicide
In what types of matters are dying declarations admitted?
civil + criminal homicide
Is character evidence admissible in civil cases?
Only when directly at issue, i.e. defamation.
When and on what terms is a criminal defendant permitted to introduce evidence of good character?
At any time, when concerning a character trait pertinent to the charge (to support probability of innocence).
When and how may courts permit evidence of a bad character trait of a victim?
Reputation and opinion evidence – NOT specific acts – may be offered when relevant to a charge or defense.
When are other crimes admissible as identity evidence?
When they show a very unique style amounting to a signature. Using a specific pearl knife is a signature; throwing a brick through a window is not.
When does the Confrontation Clause block HS testimony?
offered against the accuseddeclarant unavailablestatement was testimonialaccused has no opportunity to cross the statement
When is a statement non testimonial?
When the primary purpose of interrogation is to enable the police to help in an ongoing emergency.Think 911 call
When is a statement testimonial?
Primary purpose is to establish or prove past events potentially relevant to a later criminal prosecution.
If a girl is attacked by her boyfriend, the police come and put him in the back of a car, then question her, are the girl’s statements testimonial?
Yes: the emergency is resolved because the boyfriend is locked up, and she is describing past events.
If a girl is attacked by her boyfriend, the police come and put him in the back of a car, then question her, and the police want to testify as to her statements when she is unavailable at the boyfriend’s trial, may they so testify?
While the girl’s statements are not barred by hearsay, the statements violate the Confrontation Clause because they are testimonial.
May a treatise be used as substantive or impeachment evidence?
Both
May an expert be cross-examined with a treatise?
Yes
Is a grand jury statement admissible in a subsequent court proceeding as substantive or impeachment evidence?
Both
Does prior grand jury testimony qualify under a HS exception?
No; it’s admissible non-HS
May a witness be asked about a guilty plea she accepted?
Yes; she’s not the defendant and she accepted.The rule only applies to offers and withdrawn pleas.
When may specific acts of misconduct be offered to attack a witness’ character for truthfulness?
Only on cross
While cross examining D for assault and battery, prosecution asks whether he was convicted of fraud within the past year. Permissible?
Yes: D took the stand, so his credibility and penchant for truthfulness are relevant. Fraud is a crime of dishonesty.
Does a prior identifying statement constitute hearsay?
Not if the witness testifies and is subject to cross.
Foundational requirement for inconsistent statements during impeachment
Witness must be given opportunity to explain or deny
HS qualification for prior inconsistent statements
made under oath: permissible non-HSnot made under oath: HS
For a defendant to have such minimum contacts with the forum that the exercise of personal jurisdiction over him would be fair and reasonable, the court must find:
purposeful availmentANDreasonably foreseeable that activities would make him amenable to suit in the forum
When is venue properly based on the jurisdiction in which any defendant resides?
When all defendants are residents of the state in which the jurisdiction is located.
When must improper venue be raised?
When defendant files his motion or answer, whichever comes first.
If it is determined that an absentee’s interest in the subject matter of the litigation would be affected by a judicial determination of a case, the court has personal jurisdiction over the absentee, and joining him would not destroy jurisdiction or venue, he:
Must be joined as a party to the case.
Why might an otherwise-necessary party not be joined to a case?
if the court lacks personal jurisdiction over him, or his presence would destroy diversity or venue.
What should a court do if it cannot join an otherwise-necessary party due to lack of PJ or risk of destroying diversity/venue?
The court may proceed without joining the absentee as a party to the case if the court determines that it can shape relief so as to protect that interest.
Are ex parte TROs permitted?
Yes, if the moving party gives specific facts in an affidavit or in the verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition.
Are ex parte preliminary injunctions permitted?
No.
SMJ standard and time limit
GDMFUp until 30 days after discovery closes, unless court or local rules say otherwise
JNOV (renewed JMOL) standard + time limit
Verdict returned could not have been reached by reasonable persons.28 days after judgment
JMOL standard + time limit
Evidence viewed in light most favorable to nonmoving leads reasonable person to find for movantAfter nonmovant’s case but before submission to jury
Distinguish MSJ from JMOL
MSJ: no genuine dispute of factJMOL: even amidst disputed facts, only reasonable to find for movant
Impact of failure to move for renewed judgment as a matter of law or for a new trial
Party is precluded from raising the question of evidentiary sufficiency on appeal
If a national newspaper sells a small number of papers in a certain state, may it expect to be hailed into court there?
Yes: the publisher should reasonably anticipate causing injury wherever its newspapers are sold.
Does minimum contacts address a party’s statutory or constitutional ticket to court?
Constitutional
When an action is filed under the Federal Interpleader Statute, where is proper venue?
Anywhere any defendant resides.
Under the Federal Interpleader Statute, where may process be served?
Anywhere in the United States.
Notice requirement for in rem action
Persons known to have affected interests must be notified at least by mail.
What type of diversity is required for Rule 22 Interpleader?
Complete
Do federal courts have jurisdiction over claim between a citizen of a state and a foreign citizen granted permanent residence who resides in the same state?
No, jurisdiction is withdrawn.
Compulsory v. permissive counterclaim
Compulsory: arises out of same T/O and need not meet AICPermissive: does not arise out of same T/O and must meet AIC
If wishing to transfer a state court complaint to federal court on FQ grounds, how should a party proceed?
File notice of removal in federal court, then to the parties and the state court.Filing the notice of removal effectively transfers to fed court and ends the state court’s jx.
Do state courts have concurrent jurisdiction over 1983 claims?
Yes
Over what claims do federal courts have exclusive jurisdiction?
bankruptcy, patent, copyright, antitrust
If a State A plaintiff files suit against a State B defendant in State B state court for more than $75,000, may State B defendant remove to federal court?
No. A defendant sued in his home state court may not remove to federal court for diversity. He already has home court advantage.
Federal Interpleader Act requirements
Simple diversity and $500 AIC
Defendants are diverse from plaintiff and each otherAIC is above $75kPlaintiff files suit in one of defendants’ home state courtsMay the other defendant remove to federal court?
No
