Home > Flashcards > Print Preview
The flashcards below were created by user
on FreezingBlue Flashcards. What would you like to do?
USSC or Fed Dist Ct can hear controversies b/t states?
- USSC has (A1)original and (A2)exclusive J over controversies b/t states.
- (A3) Duh, b/c whichever Fed Dist Ct heard the case would sit in the state of one of the parties to the suit.
GENERAL WARRANTY DEEDS:
(Q1) Run with the Land
(Q2) Damages for breach of Warranty Deed
(Q3) Provide _____ type of warranty.
- (A1): And therefore, may be enforced by ANY subsequent Purchaser.
- (A2): Amount paid to the Warrantor (not the amount the subsequent purchaser paid).
QUITCLAIM: (A3): NO warranty w/quitclaim deeds.
(Q1) Rule: Rejecting Installments
(Q2) Rule: Rejecting non-conforming goods
(Q3) Breach of installment k
- (A1) Rule: Buyer may reject any installment that is nonconforming ONLY IF it substantially impairs value of THAT installment and cannot be cured.
- IF can be cured, MUST be accepted by buyer PROVIDED defect not so substantial as to constitute breach of ENTIRE k.
- (A2) Rule 2: Buyer MAY NOT reject nonconforming goods IF part of installment k.
- Buyer MAY reject nonfconforming goods if NOT part of installment k.
(A3) Rule 3:
Breach of ENTIRE installment k ONLY IF nonconformity or default as to ONE installment substantially impairs value of WHOLE k.
Congress' control over interstate commerce is ______.
- A: Plenary.
- They may make any laws that regulate interstate commerce.
(1) Implied Covenants
- A1: Quiet Enjoyment: Neither LL or paramount title holder will interfere.
- A2: Habitability: for residential leases. Nonwaiveable. Must comply with local housing codes.
Creation of Easements:
Q1: 3 Types of Easements _____, _____ and ______.
- A1: Express, Implied, and Prescriptive.
- Express: In writing, signed by grantor, ID parties, ID land.
- Implied: Created by operation of law. Exception to SOF. 3 types (i) easement implied from existing use, (ii) easement implied w/o any use, (iii) easement by necessity.
- #1: Prior to division of single tract; apparent & continuous use exists on the "servient" part; that is reasonably necessary for the enjoyment of the "dominant" part; and the court determines that the parties intended the use to continue after division of the land.
- #2: Subdivision plats and profit a Prendre.
- Subdivision: Implied easement to use streets to access lots.
- Profit a Prendre: to pass over surface of land and use it as reasonably necessary to extract product.
- #3: LO sells part of his tract and in so doing deprives access to public road or utitlity line. Owner of servient has right to access.
- Prescription: open & notorious (doscoverable); adverse (without permission); continuous and uninterrupted; for statutory period.
LAND SALE K:
(2) Doctrine of Equitable Converstion
- A1: Must comply with SOF (writing, signed, essential terms). Part performance may take a k out of the SOF.
- A2: Once k signed, equity regards the buyer as the owner of real prop. Seller's int is pers prop of proceeds. Legal title held in trust for buyer by seller.
- A3: ROL on buyer
LAND SALE K:
(1) Implied Covenants
(2) What causes unmarketable title?
(3) Which deeds contain this convenant?
(4) What are defects in chain of title?
(5) When is marketability of title breached?
(6) What are requirements/remedy for breach of marketable title?
- A1: Marketable Title: title reasonably free from doubt. Need not be perfect, but free from unreasonable risk of litigation.
- A2: Defects in chain of record, adverse possession, encumbrances, existing violation of zoning restriction.
- A3: ALL deeds, INCLUDING quitclaim deeds.
- A4: variation in land description, defectively executed deed, evidence that prior grantor lacked capacity.
- A5: If at all, at time of closing. Seller CANNOT breach after the deed is delivered to the buyer. K & deed merge when closing occurs.
- A6: Buyer must (1) give notice, and (2) giver Buyer reasonable time to cure. If Seller fails to cure, Buyer may (i) rescind, (ii) damages, (iii) specific performance w/abatement, (iv) quiet title.
(1) Deed Requirements
(2) Inter vivos gift requirements
(3) Effect of defective deed
- A1: Writing, signed by grantor, identify parties and land.
- A2: Deed may convey real prop via inter vivos gift if (i) donative intent, (ii) delivery, and (iii) acceptance.
- A3: If void deed, set aside even if passed to BFP. If voidable deed, not set aside if passed to BFP. Void = forged, not delivered, obtained by fraud in factum (didn't know signing deed). Voidable = minors, incapacitated, fraud in inducement, duress, UI, mistake, breach of fid duty.
DEED DELIVERY & ACCEPTANCE:
(1) Define Delivery
(3) What is the effect of G retaining control/interest?
(4) What is the effect of Grantor giving deed to 3P?
(5) Tranfer of deed to 3P with conditions...
- Rule: Deed not effective until delivered AND accepted.
- A1: Grantor's intent to make deed presently effective.
- A2: PER admissible to show intent to deliver but NOT to show delivery was conditional.
- A3: Retaining control or interest by G indicates lack of intent.
- A4: With instructions to give to grantee = valid delivery.
- With no instructions to give to grantee = no delivery (agency law).
- A5: Valid delivery. 3P --> grantee upon certain conditions. PER admissible to show delivery conditional (PER N/A if oral conditional on giving deed to grantee directly).
(1) 3 types: name them.
(2) Covenants that comes with a General Warranty Deed:
(3) Covenants that come with a Special Warranty Deed:
(4) Covenants that come with a Quitclaim Deed:
- A1: general warranty deed, special warranty deed, quitclaim.
- A2: GWD: Seisen, Right to Covey, Against Encumbrances, Quiet Enjoyment, Warranty, Further Assurances.
- A3: Statutory implied covenants: (i) grantor has not conveyed same estate or any interest thereof to anyone other than grantee, (ii) estate is free from encumbrances.
- A4: Whatever interest the grantor has. No covenants are included or implied (but there is still an implied covenant of marketability (reasonably free from doubt/unreasonable risk of litigation)).
GENERALY WARRANTY DEED CONVENANTS:
(2) Right to Convey
(3) Against Encumbrances
(4) Quiet Enjoyment
(6) Further Assurances
- Seisen: O has estate she purports to convey (title + possession)
- Right to Convey: O has auth to grant (title alone)
- Against Encumbrances: physical and title (encroachments and mortgages)
- QE: O nor 3P w/lawful superior title will interfere w/B possession.
- W: O will defend against any reasonable claim by 3P claiming to have superior title and pay B for any loss.
- FA: O will perfect title
Theories of Title:
LIEN THEORY vs. TITLE THEORY
Lien: The mortgagee (bank) is considered the holder of a SI only. Mortgagor is owner of land until foreclosure. Bank may NOT have possession before foreclosure.
Title: Legal title is in the mortgagee bank until motgage satisfied or foreclosed upon. Mortgagee entitled to possession on demand at any time.
(1) Riparian Owner Doctrine, or
(2) Prior Appropriation Doctrine
Prior Appropriation Doctrine:
- Riparian: water belongs to those who own the land bordering the water.
- Theories of Riparian Rights: (i) natural flow, (ii) reasonable use.
- Natural Flow Theory of Riparian Owner Rights: a riparian owner's use resulting in substantial or material dimunitiion of the waters quantity, quality is enjoinable.
- REasonable Use Theory: (MAJ) all riparians share the right of "reasonable use" of the water. Owner's use not enjoinable unless substantially interferes with other owners' use.
- Natural vs. Artificial: Natural uses (human uses, consumption, gardening) prevail over artificial uses (irrigation, manufacturing).
Individuals (doesn't have to be riparian owner) acquire rights by actual use. Determined by priority of BENEFICIAL use.May be lost by abandonment.
INVASION OF PRIVACY
(1) Commercial Appropriation
(2) Instrusion on Plaintiff's Seclusion
(3) False Light
(4) Public Disclosure of Private Facts
State's Police Powers:
States may enact legislation for the health, safety and welfare of its citizens provided it is not in areas reserved to the fed govt or preempted by fed legistlation and does not unduly burden interstate commerce.
- Civil Case
- Propensity Evidence
When is it admissible?
Evidence of character traits (safe driving) is inadmissible in CIVIL cases to prove a party acted in conformity with those traits on the particular occasion at issue.
PROPENSITY evidence is NEVER admissible in CIVIL cases! Across the page bar. Never. Ever. Don't Do It!
SLANER PER SE:
(Q1) List the 4 categories
(Q2) Effect on defamation suits:
- (i) accusing P of a crime,
- (ii) foul/loathsome disease,
- (iii) adversely relfecting on fitniss to conduct business/trade,
- (iv) serious sexual misconduct.
- Slander per se categories DO NOT require a showing of special damages for defamation suits.
- Non-slander per se categories DO require a showing of special damages.
Invasion of Privacy:
Q1: List 4 causes of action.
Q2: List elements of each cause of action
Q3: What damages must be proven?
- A1: AFLIPP
- (1) Commercial Appropriation of P name/image
- (2) False Light
- (3) Intrusion on Seclusion
- (4) Pub D/C Private Fact
- Comm App: (i) unauth use (ii) of P pic/name, (iii) for D commercial advantage.
- FL: (i) D attributes acts/views to P that P does not hold. Must be publication. Must be highly offensive to RP. If public matter must show malice.
- Intrusion on Seclusion: D pries/intrudes on P's private affairs. Must be highly offensive to RP.
- Pub D/C Priv Fact: (i) D publically discloses, (ii) private facts about P [even if true] (iii) highly offensive RP, (iv) if public matter, must show malice.
A3: Damages: P need not show special damages. Severe ED or mental anguish are sufficient.
Implied Warranties in Every Sale of Goods:
Q1: Name them
Q2: Elements thereof
Q3: Breach of
A1: Implied Warranty of Merchantability and Implied Warranty of Fitness for a Particular Purpose
- A2: Merchantability: Goods are of average acceptable quality and generally fit for the ordinary purpose for which the goods are used.
- Fit Part Purpose: If seller knows of particular purpose for which goods are required and buyer is relying on seller's skill and jusgment in selcting the goods.
Breach occurs if the product fails to live up to either standard.
WHAT IS A NEGOTIABLE INSTRUMENT?
- A unconditional;
- promise or order to pay;
- a fixed amount of money, that is:
- (i) made payable to order or bearer,
- (ii) payable on demand or at a specific time, and
- (iii) has no unauthoirzed undertaking.
Name the 5 Comm Paper Steps:
- (1) Is the instrument negotiable?
- (2) Is the holder a HDC?
- (3) Are there defenses? (real or personal?)
- (4) Transfer Warranties
- (5) Presentment Warranties