Bar Prep - Foundations

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Bar Prep - Foundations
2013-05-26 20:47:01
Bar prep

Bar prep
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  1. Intentional Torts: Foreseeability
    Does not matter for intentional torts
  2. Intentional Torts: Battery
    • – Intends to commit a harmful or offensive contact w/ another
    • – Intends to commit an assault, but harmful or offensive contact occurs
    • – Commits an act, which he knows or should know, creates a substantial certainty that a harmful or offensive contact will occur
  3. Intentional Torts: Assault
    • 1. Act that creates reasonable apprehension in P of immediate harmful or offensive contact
    • 2. Intent to create apprehension
    • 3. Causation
  4. Intentional Infliction of Emotional Distress
    • Intentional Tort
    • Elements:
    • 1. Extreme and outrageous conduct
    • 2. Intent that P suffer severe emotional distress
    • 3. Causation
    • 4. Damages (severe emotional distress)
  5. Intentional Infliction of Emotional Distress: Third Party Recovery
    • D causes physical harm to 3d party and P suffers emotional distress because of her relationship w/ the 3d party:
    • 1. P must be present;
    • 2. P was close relative to injured person;
    • 3. D knew or should have known of the presence of the P; and
    • 4. Actual damages occurred
  6. Trespass to Chattels
    – D inferes w/ another person's lawful possession of a chattel

    – Interference: Any physical quantifiable physical contact, any dispossession by taking, destroying, or barring owner's access to it

    • – Per se crime, only requires intent to take, regardless of knowledge of ownership
    • – Intentional Tort
  7. Intentional Tort: Conversion
    • More serious interference or dispossession of personal property
    • Factors:
    • 1. Duration
    • 2. Value
    • 3. Damage
  8. Intentional Entry onto the Land
    – D liable for intentional entries onto land of another

    – No damages required!

    – Intent ≠ knowledge, if you meant to go on somewhere, you intended to enter that place; mistake is no defense
  9. Unintentional Entry onto the Land
    D not liable for neg. or reckless entries unless he causes damages to the land

    E.g., Drunk driver loses control and drives onto someone yard and hits a mailbox
  10. False Imprisonment
    • 1. Act confines or constrains P
    • 2. To a bounded area
    • 3. D intends to confine
    • 4. Causation
  11. Intentional Torts: Defenses: Consent
    – Victim gives permission

    • – Types:
    • – Express: Consent in words or non-verbal gestures
    • – Implied: Conduct reasonably conveys consent
    • – Implied by law: e.g., EMT treating when a victim is unconscious and unable to provide consent
  12. Intentional Torts: Defenses: Privilege
    E.g., Reasonable force to prevent someone trespassing
  13. Force allowed to prevent trespassing
    Reasonable force allowed; BUT, if trespasser is ceasing his trespass after the show of force, privilege is lost

    E.g., Farmer throwing rock at a car after the driver is turning and leaving
  14. Intentional Torts: Defenses: Necessity
    D can interfere w/ property in order to avoid a greater injury
  15. Intentional Torts: Defenses: Necessity: Public
    D injures private property interest to protect the community; complete defense

    E.g., "Sully" landing the 747 in the Hudson; wasn't just saving himself
  16. Intentional Torts: Defenses: Necessity: Private
    – D injures private property to protect a private interest valued greater than the injured property; incomplete defense

    – D is liable for any damages to the property
  17. Intentional Torts: Defenses: Shopkeeper's Privilege
    Reasonable belief that a theft has occurred = detention in a reasonable manner for a reasonable period of time
  18. Negligence: Tip
    Who is responsible and who else is responsible?
  19. Negligence: Duty
    Legal requirement to act as an ordinary, prudent, reasonable person taking precaution against unreasonable risks of injury to others
  20. Negligence: Duty: To whom is it owed?
    All foreseeable Ps
  21. Negligence: Duty to those entering onto land
    • 1. Trespasser:
    • – Unknown: No duty
    • – Known: Duty to warn of known dangers
    • 2. Licensee: Friend (people you Like); warn of known dangers
    • 3. Invitee: Customer; Inspect to make safe
  22. Negligence per se

    – Requires a statute, generally

    – Statute designed to: (1) prevent type of injury; (2) protect that class of plaintiff
  23. Res ipsa loquitur
    • 1. Accident doesn't happen absent negligence; and
    • 2. Instrumentality w/in D's exclusive control
  24. Contributory Negligence
    – Minority rule

    – Negligent P barred from recovery
  25. Last Clear Chance Rule
    – Only applies in contributory negligence states

    – Neg. P can still recover if shows D had last clear chance to avoid injury and failed to do so
  26. Comparative Negligence
    – Neg. P will be reduced by the % of his own neg.

    – No last clear chance doctrine!
  27. Comparative Negligence: Pure
    – Can recover even if P's neg. exceeds D's

    – Use this one, unless told otherwise
  28. Comparative Negligence: Modified
    Recovery only if P's negligence is less than D's
  29. Joint Tortfeasors
    When the combined neg ats of two or more tortfeasors cause an indivisible injury, each is jointly and severally liable
  30. Torts: Release
    – Tortfeasor makes pretrial agreement to pay his share of damages awarded to P

    – Usually proceeds ct's determination of tortfeasor's relative liability

    – Settling of D's percentage fault is deducted from P's award, regardless of the actual payment made by the settling D

    – E.g., $10,000 verdict, D1 settled for $5,000 before trial, D2, who went to trial, can only owe $5,000
  31. Foreseeable Intervening Causes
    • – Negligent rescue
    • – Subsequent medical malpractice
    • – Subsequent disease
    • – General negligence
    • – If foreseeable, D remains liable
    • E.g., I hit your car and break your arm, while waiting on the side of the road, you're hit by another car, breaking your other arm; I am still liable for other arm break
  32. Unforeseeable/Superseding Causes
    • – Acts of God: Lightning/Floods
    • – Intentional torts of 3d parties
    • – Intentional crimes of 3d parties
    • – If unforeseeable, D not liable
    • E.g., I hit your car and break your arm, while waiting on the side of the road, he's mugged by a buy who breaks his arm
  33. Abnormally Dangerous Activities
    – Strict liability

    • Elements:
    • 1. Activity creates risk of serious injury to the land or chattels of the P (or to the P); and
    • 2. Risk cannot be eliminated through exercise of due care; and
    • 3. The particular activity is not generally performed in the area
  34. Abnormally Dangerous Activities: Examples
    • 1. Storage/transport of explosives
    • 2. Fumigation
    • 3. Crop dusting
    • 4. Storage/transport of flammable liquids
    • 5. Pile driving
    • 6. Maintenance of hazardous waste site
  35. Torts: Wild Animals
    – Strict Liability to persons injured by wild animal

    – Liable for direct (biting, etc.) or indirect (running from tiger and tripping and breaking wrist) injuries
  36. Torts: Wild Animals: Examples
    • Lions
    • Tiger
    • Bears
    • Elephants
    • Wolves
    • Monkeys
    • Sharks
    • Spiders
  37. Strict Products Liability
    Selling a product in a defective condition unreasonably dangerous to the user or consumer
  38. Products Liability Defendants
    – One who sells a produce in a defective condition unreasonably dangerous to a consumer or user

    – D must be commercial seller of products
  39. Strict Products Liability: Defenses
    • 1. Assumptions of the risk
    • 2. Adequate warning
    • 3. Product misuse
  40. Misrepresentation
    • 1. False statement
    • 2. Scienter
    • 3. Intent to induce P to act
    • 4. Justifiable reliance
    • 5. Damages
  41. Private Nuisance
    Disturbance that creates substantial and unreasonable interference w/ the use an enjoyment of one's property
  42. Private Nuisance: Hypersensitive P
    Not able to recover

    E.g., Dog whistle factory, kennel opens up next to it
  43. Defamation
    • Elements:
    • 1. Defamatory statement of fact
    • 2. Publication to any 3d party who reasonably understands communication
    • 3. Damages:
    • – General damages presumed
    • – Special damages required (except libel and slander per se)
  44. Defamation: P's std of proof
    • 1. Public official/figure: Malice
    • 2. Private person:
    • – Matter of public concern: Neg.
    • – Matter of private concern: Publication only
  45. Slander per se
    • Defamatory statement imputes:
    • 1. Loathsome disease
    • 2. Unchastity (women only)
    • 3. Improper conduct in one's trade, business, or profession
    • 4. False accusation of a crime

    NB: Special damages don't have to be proven!
  46. Invasion of Right to Privacy
    • 1. Appropriation
    • 2. False light
    • 3. Intrusion upon seclusion
    • 4. Public disclosure of private facts
  47. Con Law Approach
    • 1. Who's passing the law?
    • 2. What's the subject matter of the law (who is it regulating)?
    • 3. Match the appropriate power
    • 4. Who is affected by the law?
  48. Case and Controversy Requirement
    Fed. Ct. adjudication requires an actual and definite dispute between parties having adverse legal interests
  49. Standing
    P must show a concrete, personal stake in outcome
  50. Standing: Elements
    • 1. Injury in fact (i.e., economic, aesthetic, environmental)
    • 2. Causation/Redressability (curing the harm)
  51. Justiciability

    • 1. Ripeness
    • 2. Advisory Opinions
    • 3. Mootness
    • 4. Political Questions
    • 5. Standing
  52. Ripeness
    Genuine, immediate threat of harm
  53. Advisory Opinions
    • Court's decision is not binding
    • E.g., Admin agency has to give approval to ct's decision
  54. Mootness
    Actual controversy must exist at all stages of review

    NB: Capable of repetition but evading review can be heard!
  55. Politica Questions
    Areas reserved for other branches of gov't

    E.g., foreign affairs, plenary power of another branch, impeachment proceedings
  56. Abstention
    – Fed. ct. will refuse to review a case based on unsettled issue of state law [civil] (Pullman)

    – Fed. ct. review prohibited where there are pending state criminal proceedings [criminal] (Younger)
  57. Presidential Powers
    • 1. Executive Agreement/Orders
    • 2. Appointment Powers
    • 3. Emergency Powers
    • 4. Clemency Powers (can only pardon federal, not state criminals)
  58. Hierarchy of Laws
    • 1. Const.
    • 2. Act of Cong.
    • 3. Treaty
    • 4. Executive Acts
    • – Agreement: Foreign policy
    • – Order: Domestic policy
    • 5. State Law

    NB: If conflicting in the same level of hierarchy, go w/ last-in-time
  59. Cong. Delegation of Powers
    Allowed; delegates power to agencies
  60. Cong. Delegation of Powers: Requirements for Validity
    • 1. Cong. passes enabling legislation (state or fed);
    • 2. Specifies the purpose, fxn, and powers; and
    • 3. Describes the procedures of the agency
  61. Supremacy Clause
    Superceding doctrine: Fed > state laws in direct conflict

    Preemption doctrine: When Cong. already occupies a field, state laws in field are unconst.
  62. Enumerated Powers
    • Art I, § 8
    • 1. Coin money
    • 2. Aliens
    • 3. Spending power (tax and spend for general welfare)
    • – Disparate treatment allowed, unless you're in a suspected class
  63. Federal Property Power
    Cong. can dispose of U.S. property
  64. Federal Property Power: Types of Federal Property
    • 1. Wild animals
    • 2. Military vehicles
    • 3. Federal buildings (and D.C.)
    • 4. VA hosps.
    • 5. Indian reservations
  65. Dormant Commerce Clause
    • State laws valid when
    • 1. Non-discriminatory
    • 2. No undue burden on interstate commerce (use balancing test)
  66. State police power
    Health, safety, welfare, morals, aesthetics may allow state action
  67. Regulation of Interstate Commerce
    • Const. so long as:
    • 1. Non-discriminatory;
    • 2. Does not place an undue burden on interstate commerce
  68. State Taxation of the Fed
    – Fed. gov't immune to state taxation

    – The incidents can't fall on the fed, but we can hit workers, contractors (e.g., state income tax)
  69. Affectation Doctrine
    – Cong. may reg any activity which has a "substantial economic effect" on interstate commerce

    – NB: Cong. can't commandeer states to enact legislation
  70. Fundamental rights
    • Right to Vote
    • Right to Travel
    • Right to Privacy
  71. Tests for Const. of Laws
    Sctrict, intermediate, rational basis
  72. Strict scrutiny
    Burden on gov't to show reg is necessary to a compelling gov't interst

    E.g., race, alienage, national origin, fundamental rights
  73. Intermediate scrutiny
    Burden on gov't to show the reg is substantially related to an important gov't interst

    E.g., gender, illegitimacy
  74. Rational Basis scrutiny
    Burden on P to show that the reg is not rationally related to a legitimate gov't interest

    E.g., poverty, necessities, age, mental retardation, social/economic welfare measures
  75. Statutes neutral on their face: Requirements to win a challenge
    • P must show:
    • 1. Discriminatory effect; and
    • 2. Discriminatory purpose

    Must raise the burden of persuasion above rational basis

    E.g., woman must show she can't get a job because of city's reg on showers
  76. Right to Vote
    – Strict scrutiny

    • – Applies to:
    • 1. Discrimination in voting
    • 2. Reapportionment
    • 3. Switching party affiliation
    • 4. Ballot restrictions on "special interests" (land ownership)

    NB: Does not include right to be a candidate (e.g., can require filing fee and min./max. age restrictions)
  77. Right to Privacy

    • Contraception
    • Abortion (no "undue burden)
    • Marriage
    • Procreation
    • Private Education
    • Family Relations (child-birth, child-rearing, rights of related persons to live together)
  78. Substantive Due Process
    The source from which the fundamental rights are derived
  79. Procedural Due Process
    Notice and hearing required whenever there is a serious deprivation of life, liberty, or property interest
  80. Art. IV: P&I
    No economic discrimination by one state against citizens of another state unless substantial gov't interest

    NB: Doesn't apply to recreational diversions, etc.
  81. Taking
    Reg. that denies owner all reasonable economically viable use of his land

    NB: "All" is required; if you buy land to grow tobacco then state outlaws tobacco, you can still plant corn
  82. Eminent Domain: "Public Use" Requirement
    • Elements:
    • 1. Burden on gov't to show measure is rationally related to any conceivable purpose;
    • 2. "Public purpose" does not have to be held out for use by the general public (only needs to benefit public generally, therefore, can give land to private entities that will "benefit public" through their services)
  83. Bill of Attainder
    Legis. punishment of a named group or individual w/o judicial trial
  84. Ex post facto laws
    • Unconst. criminal laws that:
    • 1. Make conduct criminal that was not a crime when committed; or
    • 2. Decrease the amount of evidence needed to convit; or
    • 3. Change the procedure for conviction
  85. Free Speech: Content Specific Regulation
    – Regulates the message

    • – Protected Speech: Strict scrutiny
    • – Unprotected Speech: No protection
  86. Free Speech: Unprotected Speech
    • 1. Clear and present danger
    • 2. Defamation
    • 3. Obscenity
    • 4. Child pornography
    • 5. Fighting words
    • 6. Fraudulent commercial speech
  87. Free Speech: Content Neutral Regulation
    – Regulates the method (time, place, manner)

    • Three part test:
    • 1. Furthers a significant gov't interest;
    • 2. Narrowly tailored [Least restrictive means]; and
    • 3. Leave open alternative channels of communication

  88. Free Speech: Facial Attacks
    • 1. Over breadth
    • 2. Vagueness
    • 3. Prior restraints
    • 4. Unfettered discretion

    POV D
  89. Free Speech: Facial Attacks: Vagueness
    Reasonable persons wouldn't know what it means
  90. Free Speech: Facial Attacks: Prior Restraints
    Restricts speech before it's made (e.g., gag orders (not always unconst))
  91. Free Speech: Facial Attacks: Unfettered discretion
    – One person has too much power to do something

    – Must be viewpoint neutral
  92. Free Speech: Public forum
    – Use content neutral speech analysis (SLAc)
  93. Free Speech: Limited Public Forum
    – Opened by state on permanent/limited basis

    – Content neutral analysis?

    E.g., school rooms
  94. Free Speech: Non-public Forums
    – Unfettered discretion, must be viewpoint neutral

    – Most other public places

    E.g., Military bases, city bus, gov't workplaces, airport terminals
  95. Free Speech: Vice advertising
    • – Central Hudson
    • Regulation must:
    • 1. Directly advance
    • 2. Substantial gov't interest; and
    • 3. Be narrowly tailored

    A I NT a Vice
  96. Free Exercise: Methodology
    • Purposeful interference: Strict scrutiny (Hialeah)
    • Incidental bürden: Rational Basis test
  97. Establishment Clause: Lemon test
    • To not violate:
    • 1. Primary purpose must be secular;
    • 2. Primary effect must neither inhibit nor advance religion; and
    • 3. No excessive entanglement between gov't and religion
  98. Principles of Criminal Liability
    • 1. Mens rea
    • 2. Actus reas
    • 3. Concurrence of the two
    • 4. Causation
    • 5. Defenses
  99. Criminal: Knowingly
    • A person has knowledge if:
    • 1. He is aware of the fact;
    • 2. He correctly believes that it exists
  100. Willful blindness/Deliberate ignorance
    If the D is aware of a high probability of the existence of the fact in question, and he deliberately fails to investigate in order to avoid confirmation
  101. Three Types of Crimes
    • 1. Specific intent crimes
    • 2. General intent crimes
    • 3. Strict liability
  102. Specific Intent Crimes
    Requires actual subjective intent to cause a specific result
  103. General intent
    Requires only an intent to do the proscribed act

    E.g., bigamy
  104. Strict Liability Crimes
    No mens rea needed

    E.g., Regulatory offenses; regulation of food, drugs, firearms; morality crimes
  105. Arson
    – GI crime

    • Elements:
    • 1. Malicious burning
    • 2. Of the dwelling
    • 3. Of another

    – Look for "blackening" vs. "charring"
  106. Crimes Against the Person: Defenses
    • 1. Voluntary intoxication
    • 2. Mistake of Fact
    • 3. Self Defense
    • 4. Insanity Defense
  107. Defenses: Voluntary Intoxication
    – Only a defense to a specific intent crime

    NB: Can reduce 1° murder to 2°, but does not reduce murder to manslaughter
  108. Defenses: Mistake of Fact
    • SI: Any mistake, reasonable or unreasonable
    • GI: Only reasonable mistake
    • Strict Liability: Mistake of fact no defense

    E.g., You're in a library and you take a laptop with you when you leave, thinking it's yours, but it's not. This is a trespass to chattels, but not larceny because you don't have the mens rea.
  109. Defenses: Self-Defense
    • – Reasonable, non-deadly force allowed when reasonably needed to avoid imminent harm
    • – Deadly Force: Allowed to meet deadly force or to counter a threat of serious bodily harm

    General Rule: No duty to retreat
  110. Defenses: Insanity: M'Naghten Test (Cognitive Test)
    • 1. D doesn't know the nature and quality of his act; or
    • 2. He does not know what he was doing was wrong
  111. Murder: Intentional
    Premeditated murder
  112. Murder: Unintentional
    • 1. Felony Murder
    • 2. Intent to inflict serious bodily injury
    • 3. Depraved heart murder
    • 4. Nonfeasance
  113. Manslaughter: Intentional
    Voluntary Manslaughter
  114. Manslaughter: Unintentional
    • 1. Invol. manslaughter
    • 2. Nonfeasance
  115. Murder Dispositive Question
  116. Premeditated Murder
    Intent to kill someone with malice aforethought
  117. Felony-Murder
    – Unintentional killing during the course of an inherently dangerous felony

    – Redline Rule: To be guilty of felony-murder, victim must have been an innocent party; doesn't apply when co-felon was killed
  118. Inherently Dangerous Felonies
    • BARRK
    • 1. Burglary
    • 2. Arson
    • 3. Rape
    • 4. Robbery
    • 5. Kidnapping
  119. Intent to Inflict Serious Bodily Injury
    Unintentional killing (even if actions to hurt were premeditated) when intending to inflict serious bodily injury
  120. Depraved heart murder
    Unintentional killing wherein someone doesn't care about their actions; need malice

    E.g., throwing bowling ball off an overpass
  121. Manslaughter
    • – No malice
    • – Heat of passion or gross negligence (rather than recklessness)
  122. Voluntary Manslaughter
    • Intentional Killing (SI)
    • 1. Adequate provocation
    • 2. Mistaken justification
  123. Involuntary Manslaughter
    • Unintentional Killing (GI)
    • 1. Gross negligence
    • 2. Misdemeanor-manslaughter

    E.g., Conrad Murray killing MJ
  124. Nonfeasance
    – Criminal liability for failure to act

    • Duty arises by:
    • 1. Statute;
    • 2. Contract;
    • 3. Creation of victim's peril; or
    • 4. Relationship (parent and spouse)
  125. Solicitation
    – SI

    – D entices, encourages, orders, or requests another to commit a crime

    – Crime is committed at this point (renunciation doesn't matter)

    – Merges into the target offense

    – No defenses at common law
  126. Conspiracy
    – SI

    • Elements:
    • 1. Agreement between two or more persons
    • 2. Intent to achieve same criminal objective
    • NB: Most jx. require an overt act

    – Does not merge (can be found guilty of conspiracy and completed crime)
  127. Conspiracy: Scope
    – Co-conspiraor guilty of all crimes committed "in furtherance of" the conspiracy (Pinkerton Crimes)
  128. Conspiracy: Withdrawal
    • W/drawal can occur when a conspirator:
    • 1. Notifies all other members of the conspiracy; and
    • 2. Such notice is timely, giving other member the opportunity to abort their plans
  129. Conspiracy: Defenses
    • – Common law: W/drawa not a defense
    • – MPC: Contra if D "thwarts the success"
  130. Conspiracy: Conspiring w/ law enforcement
    Can't conspire w/ law enforcement
  131. Conspiracy: MPC NB
    No agreement between "2 or more persons" needed; only an intent by a single actor agreeing w/ another is needed
  132. Attempt
    – SI

    • Elements:
    • 1. Attempt to commit a crime
    • 2. Substantial step in furtherance that goes beyond mere preparation

    – Merges
  133. Inchoate Offenses
    – All are SI

    – Crime of preparing for or seeking to commit another crime
  134. Attempt: Defenses
    • – Legal impossibility: Yes
    • – Factual impossibility: No (e.g., I want to shoot someone at 400 fee and I'm 2" off, no defense)
  135. Accomplice Liability
    – SI

    • Elements:
    • 1. Gives aid or encouragement; with
    • 2. Intent to achieve criminal objective
  136. Accomplice Liability: Scope
    All crimes "reasonably foreseeable"
  137. Inchoate Offenses: Timeline
    Solicitation –> Conspiracy –> Attempt –> Completion

    Worse and worse as you move to the right
  138. Criminal Battery
    – GI

    – Unlawful application of force
  139. Criminal Assault
    – SI

    • – Attempted battery type
    • – Intent to frighten type
  140. Burglary
    – SI

    • Elements:
    • Breaking and entering of:
    • 1. The dwelling of another;
    • 2. At night; with
    • 3. The intent to commit a larceny or felony therein
  141. Larceny
    Taking is trespassory/wrongful taking

    E.g., You have your pen on your desk and I intend to take the pen some distance with intent to permanently deprive
  142. Embezzlement
    – Fraudulent conversion of the personal property of another by one in lawful possession

    • NB: Initial taking is not trespassory
    • E.g., Pawn shop owner selling something before the 60 day pay-back period; you gave it to him, but he wrongfully converted it
  143. Larceny by Trick
    – Person relinquishes possession by a lie; title does not pass

    – Requires misrep of past or present material fact

    NB: Using a lie to get someone out of possession, embezzlement happens when you're in lawful possession in the first place
  144. False Pretenses
    – SI

    – False representation of a past or present material fact which causes victim to pass title to wrongdoer

    – Obtain possession AND title

    E.g., Go to a store and switch tag on cheap coat to an expensive coat, take the expensive coat up for sale
  145. Receiving stolen property
    Knew or should have known something was stolen and you accept it (even if you bought it)
  146. Accessory after the fact
    • Elements:
    • 1. Knows of a completed crime; and
    • 2. Gives aid to hinder the apprehension or conviction
  147. Presumptions in Criminal Cases
    • – Generally frowned upon
    • – Shifts burden of production to the D
    • – Must be accepted as true, unless rebutted
    • – Unconst. to create a presumption in jury charge
  148. Right to Jury Trial
    Arises where imprisonment for >6 mos is possible
  149. Right to Counsel
    Arises for felonies or misdemeanors where imprisonment is actually imposed
  150. Search: Reasonable expectation of privacy
    • Yes: Intrusion is a search, requires some level of suspicion for valid search
    • No: Intrusion not a search
  151. Standing to Challenge Search
    D must have possessory interest in the premises attached or items seized
  152. Search: Requirements
    • 1. Probable cause
    • 2. Warrant
  153. Search: Warrant Exceptions
    • 1. Stop and frisk (Terry)
    • 2. Search incident to lawful arrest
    • 3. Plain view
    • 4. Automobile
    • 5. Consent
    • 6. Hot pursuit
    • 7. Exigent circumstances
  154. Search: Plain view exception
    Make sure cops are at a lawful vantage point
  155. Search: Terry stop
    Brief, gentle pat-down of outer clothing to look for weapons
  156. Search: Automobile exception
    Dispositive Q: Is the probable cause for the vehicle or a package you think is in the car?

    • E.g., Probable cause for drug dealing, can look anywhere drugs might be.
    • E.g., Probable cause for automatic weapons dealing, can only look in places guns might be
  157. Search: Consent
    – No level of suspicion required; cops allowed to search after consent

    • – Extends to all areas where a person w/ apparent = right to use or occupy the property would have joint access or control
    • 1. Co habitant?
    • 2. Shared area?
    • 3. Child?
    • 4. Burden on police
  158. Search: Hot pursuit
    E.g., Chasing drug dealers into a house that turns out to be the center of the drug ring; all the drugs are now admissible
  159. Sniff a Search?
    Nope. Positive sniff gives probable cause.
  160. Inventory Search
    Routine search to protect the arrestee's personal items and to safeguard the police from any claims of theft
  161. Curtilage
    – The land immediately surrounding house, including any closely associated buildings and structures, but excluding any "open fields beyond"

    – Have an expectation of privacy
  162. Open field
    • – View of an open field is not a search
    • – Applies to area beyond curtilage
    • – No 4th amendment because no reasonable expectation of privacy
  163. Warrant Requirements
    • 1. Neutral and detached magistrate
    • 2. Requires:
    • – Probable cause;
    • – Oath or affirmation; and
    • – Particular description of the place and object of the search to meet const. requirements
    • 3. Sworn statement of facts showing probable cause to search a particular place for a particular item
  164. Probable Cause
    Objective std: Sufficient info to persuade a reasonable person that a certain place contains evidence of a crime
  165. Protective Sweep
    – Sweep of the area immediately around the arrestee, and the path, walk, or hallways directly to and from him and entrance to the area
  166. Protective sweep: Purpose/Scope
    – Ensure the security of law enforcement

    – Limited to cursory inspection of places wher e a person may hide

    – Last no longer than needed to dispel reasonable suspicion of danger
  167. Miranda
    – Needed for custodial interrogation

    – Needed to protect an individual who is in custody and subject to direct questioning or its functional equivalent

    – Prevents violations of 5th Amendment rights
  168. 6th Amendment Right to Counsel
    – Prevents deliberate elicitation of incriminating statements once formal charges have been filed (critical stages)

    – Actual waiver required (relinquishment of a known right)
  169. Double Jeopardy
    Person can't be put on trial a second time for the same offense he's already been prosecuted for
  170. Relevant Evidence
    Evidence having any tendency to make the existence of any tact that is of consequence to the determination of the action more or less probable than it would be w/o the evidence

    NB: Essay tip: Always talk about why a piece of evidence is relevant
  171. Admission
    • 1. Statement of a party (oral or written assertion/conduct)
    • 2. Used against them by their opponent

    – Can be anything (words, letters, docs)

    • NB: Does not have to be statement against one's interest
    • NB: Falls under 801 (non-hearsay)
  172. FRE 1002: Best Evidence Rule
    – To prove the contents of a writing (recording, photograph, x-ray) the original must be produced unless shown to be unavailable

    • NB: Rule applies when contents are in issue
    • – Where the testimony relies upon the writing, etc., not on personal knowledge

    E.g, My wife buys $32 for bananas at the store (I’m not with her), the receipt itself is the best evidence (over my testimony), but she can testify w/o receipt because she has first hand knowledge
  173. Who determines admissibility?
    The Court.
  174. Burdens: Civil action
    • Burden of proof: P
    • Burden of persuasion: Beyond a reasonable doubt
  175. Burdens: Criminal Actions
    • Burden of Proof: Prosecution
    • Burden of Persuasion: Beyond reasonable doubt
  176. Habit evidence
    – Habit of a person, or the routine practice of an organization is admissible to to prove conduct

    – Corroboration not required
  177. Subsequent Remedial Measures
    – Not admissible

    • Exceptions:
    • To prove ownership or control
  178. Settlement Offers
    – Offers to settle claims in dispute are inadmissible

    – Admissions are NOT severed (inadmissible)
  179. Offers to Pay Meds
    – Offers to pay medical expenses are inadmissible

    – Admissions ARE severed (admissible)
  180. Character Evidence
    Substantive attack on the person of the D
  181. Char. Ev: Criminal Cases: Character of D
    – D may open door w/ reputation or opinion evidence (not specific acts) of his good character to prove innocence

    • – Ev. must be apposite to elements at issue
    • E.g., Don't speak to his honesty in a manslaughter case
  182. Char. Ev: Criminal Cases: Char. of Victim
    • – D can offer evidence of victim's character
    • – Prosecution may then rebut the same way; D must open the door

    E.g., D opens door of victim's violent behavior; Prosecution can bring in evidence of D's violent behavior
  183. Char. Ev: Civil Cases
    • Four areas Char. Ev. is useable:
    • – Defamation (char. of P is at issue; truth is defense)
    • – Negligent hiring (prove you hired wretched dude)
    • – Negligent entrustment
    • – Child custody
  184. Char. Ev.: Allowable character evidence
    • Criminal: Reputation/Opinion
    • Civil: RO SA: Reputation/Opinion, Specific Acts
  185. Character Approach: Criminal
    • 1. Door opened?
    • 2. Trait?
    • 3. Reputation/Opinion
  186. Character Approach: Civil
    • 1. Character at issue (big 4)?
    • 2. ROSA
  187. Impeachment: Ways
    • – Bias/Prejudice
    • – Prior Inconsistent Statements
    • – Sensory Defects
  188. Impeachment: Bias/Prejudice
    • – Friend, other close relation
    • – Always considered relevant
    • – Shows witness has a reason for lying about or misrepping facts because he is: (1) biased/prejudiced in favor of a party; or (2) has interest in its outcome
  189. Collateral Matters Rule
    Excludes extrinsic evidence, UNLESS dealing w/ bias or prejudice
  190. Impeachment: Prior Inconsistent Statements
    – "Which time were you lying?"

    • – Admissible substantively in three cases:
    • 1. If "sworn" under FRE 801(d)(1)
    • 2. As an admission under FRE 801(d)(2)
    • 3. If a hearsay exception applies
  191. Impeachment: Sensory Defects
    Sensory or mental defect that might affect witness's capacity to observe, recall, or relate the events about which the witness has testified is admissible
  192. Impeachment: Prior Bad Act
    – Reputation/opinion testimony about the witness involving truthfulness

    • – Q's regarding specific instances of conduct allowed on c-x
    • E.g., "Isn't it true you cheated on your income tax form?"

    NB: MUST BE ON CROSS! You can't bring in extrinsic evidence!
  193. Impeachment: Convictions
    • – Any felony conviction
    • – Any convictions involving dishonesty or false statements (misdemeanors included)
    • – Limit: 10 year rule: Conviction must have happened in last 10 years or you were released from confinement w/in 10 years

    BUT, 403 balancing test can keep things out; e..g, killing an entire family after drunk driving doesn't show you're dishonest
  194. FRE 404(b): MIMIC Rule
    • – Evidence of other crimes, wrongs, or acts is not admissible to prove character of a person in order to show actions in conformity therewith
    • – BUT, can be shown in MIMIC purposes:
    • 1. Motive
    • 2. Intent
    • 3. Absence of Mistake/Knowledge
    • 4. Identity
    • 5. Common plan or scheme
  195. Not hearsay
    • – Admissions
    • – Statements of warning
  196. Hearsay: Effect on Listener 803(3)
    • – Not hearsay:
    • Circumstantial evidence offered to show:
    • 1. Knowledge
    • 2. Intent
    • 3. Attitude
    • 4. Belief
    • Of the declarant or of the listener

    • – Hearsay exception:
    • Statement of then-existing state of mind or physical conditions:
    • 1. Intent
    • 2. Design
    • 3. Plan
    • 4. Motive
    • Offered for its truth
  197. Hearsay: Statement Made for Medical Diagnosis or Treatment
    Statement made for purposes of medical diagnosis or treatment are admissible so long as reasonably pertinent to diagnosis or treatment
  198. Hearsay: Present Sense Impression
    Must be made while something is happening
  199. Hearsay: FRE 803(6): Business Record
    • 1. Report or record concerning act or event
    • 2. Made at or near the time
    • 3. By a person w/ knowledge
    • 4. Kept in the regular course of biz
  200. Hearsay: Past Recollection Recorded
    • 1. Witness once had personal knowledge of the writing
    • 2. Now forgets the writing and memory isn't jogged by viewing
    • 3. Writing was made/adopted by witness
    • 4. Writing was made when event was fresh; and
    • 5. Witness can attest that, when made, writing was accurate
  201. Absence of Entry in a Business Record
    Admissible to prove that a transaction/occurrence had not taken place if made in the regular practice of the biz to record such events if they had actually occured
  202. Unavailable Declarants 804: Dying Declaraion
    • 1. Statement concerns cause or circumstances of death
    • 2. Unavailable declarant
    • 3. Criminal homicide or any civil case
    • 4. Declarant's belief of imminent death
  203. Unavailable Declarants 804: Confrontation Clause
    • Requirements:
    • 1. Criminal case
    • 2. Declarant is unavailable

    – Testimonial evidence is inadmissible unless D is given prior opportunity to C-X D

    – Davis v. Washington: Not testimonial: Primary purpose is to obtain police assistance to meet an ongoing emergency

    – Hammon v. Indiana: Testimonial: Primary purpose is to establish or prove past events relevant to later prosecution
  204. Davis v. Washington
    Not testimonial: Primary purpose is to obtain police assistance to meet an ongoing emergency
  205. Hammon v. Indiana:
    Testimonial: Primary purpose is to establish or prove past events relevant to later prosecution
  206. Hearsay: Declaration Against Interest
    • Statement of an:
    • 1. Unavailable;
    • 2. Non-party (generally, otherwise it's an admission); and
    • 3. Against interest when made (penal, pecuniary, or proprietary)
  207. Hearsay: Former Testimony
    • 1. Testimony from the same or different proceeding or in a deposition
    • 2. Unavailable declarant
    • 3. Opportunity and similar motive to develop the testimony on direct, cross, or redirect
  208. Hearsay: Statement of Pedigree
    • 1. Unavailable declarant
    • 2. Statement concerning declarant's own relationship by blood, adoption, or marriage, or other similar fact of personal or family history
  209. Hearsay: Excited Utterance
    Statement relating to a startling event made while declarant was under the stress of the excitement caused by the event
  210. Leading Questions: Appropriate when...
    • 1. Cross
    • 2. Hostile or adverse witnesses
    • 3. Questioning children
    • 4. Refreshing a witness
    • 5. Preliminary background matters
  211. Spousal Privilege
    • Holder:
    • 1. Common law
    • 2. Party spouse
    • 3. Federal courts (majority)
    • 4. Witness spouse

    – Criminal cases only

    – Protects communications before and during marriage (impressions/observations)

    – Lost at divorce
  212. Marital Privilege
    • Holder:
    • – Both spouses

    – Protects communications during marriage

    – Both civil and criminal
  213. Attorney-Client Privilege
    – Convos betwixt client and attorney are inadmissible
  214. Opinion testimony
    • Lay witnesses can offer testimony if:
    • 1. Opinions must be based on first-hand knowledge or perception; and
    • 2. Helpful to the finder of fact
  215. Contracts: Approach
    • 1. Applicable law (UCC or CL)
    • 2. What kind of K? (Uni-/Bilateral)
    • 3. Who are the parties? (Merchants/Kids/etc.?)
  216. Contracts: Requirements
    • 1. Offer
    • 2. Acceptance
    • 3. Consideration (or a substituted)
  217. Contracts: Offer
    Objective manifestation by the offeror of a willingness to enter into a bargain creating the power of acceptance in the offeree
  218. Contracts: Invitations to Bid
    Invitation to bid ≠ offer

    • E.g.,
    • – “I have two tickets to sell to either of you three for a reasonable amount.” NOT a K, can only complete the K with one person, one of the three responders is the actual offeror!
    • – Ad selling “coats” for $49. This is an invitation to bid on general coats. The ad is not specific enough.
  219. Contracts: Offer: Termination of Offer
    • 1. Death of Offeror
    • 2. Revocation
    • 3. Rejection
    • 4. Counteroffer
    • 5. Lapse of Time ** Heavily Tested **
  220. Face to Face Convo Rule
    In a random conversation (outside of a merchant context) and offer ends at the end of the conversation
  221. Contract: Offeror
    – Makes the offer
  222. Contract: Offeror: Abilities after offer made
  223. Contract: Revocation
    Effective upon communication (no mail box rule for revocation, must actually be communicated)
  224. Contract: Offeree: Abilities after receiving offer
    • 1. Accept
    • 2. Reject
    • 3. Counteroffer (usually a rejection)
    • 4. Inquiry
  225. UCC 2-206: Non-conforming goods
    Non-conforming goods shipped = full acceptance AND at the same time a breach

    NB: If you send something that you know doesn't meet K terms, but you tell them as mud and that it's an accommodation, you have conditional acceptance
  226. Contracts: Acceptance
    Objective manifestation by offeree to be bound by offer terms
  227. Rejection vs. Inquiry
    – Rejection terminates the offeree's power of acceptance

    – Inquiry does not terminate power of acceptance (wishy-washy language)

    – Offeror can renew after rejection!
  228. Unilateral K
    – Offeror makes an offer that calls for performance; looking for action, not a promise

    E.g., I post a lost dog ad, reward $500. Someone calls me and says, “I accept. I will find your dog.” This isn’t what I wanted, I want you to find me my dog.
  229. Bilateral K
    – Offeror/ee exchange mutual promises

    – Looking for promise to perform
  230. UCC 2-205: Firm Offer Rule
    Signed writing by merchant which by its terms gives assurances that it will be held open is not revocable for lack of consideration for the stated period of time not to exceed three months
  231. Contracts: Consideration
    – Bargained-for legal detriment

    NB: Forbearance from something you have legal right to do is sufficient consideration (e.g., not drinking or smoking)

    • BUT, past or moral consideration are not good consideration
  232. Contracts: Consideration Substitutes
    Is there a bargain the court should enforce?
  233. Implied-in-Law Ks
    – Quasi-K; legal substitute for K formed to impose equity between two parties

    – K should have been formed, even though it wasn't actually formed

    – Used in cases of equity
  234. Contracts: Modification
    A subsequent agreement that alters or changes the parties' duties and obligations under the terms of their original K
  235. Contracts: Modification: UCC approach
    • 1. Good faith
    • 2. No consideration needed
  236. Contracts: Modification: CL Approach
    • 1. Pre-existing duty rule
    • 2. New consideration required
  237. Battle of the Forms
    – Deals with formation not modification of K; if K exists, don't use battle of the forms
  238. Battle of the Forms: CL Approach
    New terms in acceptance = new offer; no K
  239. Battle of the Forms: UCC Approach
    Dealing w/ merchants; new terms become part of agreement unless objected to or K says no additional terms
  240. Pre-existing Duty Rule
    Performance of an act by which a party is already contractually bound to perform does not constitute valid consideration for a new promise
  241. Contracts: Defenses: Mistake
    – Mutual: Both parties are mistaken as to a material element that goes to the heart of the bargain; rescission is remedy

    • – Unilateral: K enforceable
    • NB: No enforcement if non-mistaken party knew or should have known of other's mistake
  242. FOB
    – Shows upon whom risk of loss falls

    • – FOB Seller's Place of Business: Buyer has risk; seller needs only get merch safely to shipper
    • – FOB Buyer's Place of Business: Seller has risk
  243. Anti-Assignment Clause
    – Even w/o permission, you have power to assign

    • – Assignment cannot have any effect on duties of other party to K (e.g., increasing payments)
    • – Cannot reduce possibilty of other party receiving full performance of same quality

    – Certain kinds of performance cannot be assigned (e.g., famous artist painting a portrait)
  244. Implied-in-fact K
    Agreement based upon meeting of the minds, which, although not embodied in an express K, is inferred from conduct of parties
  245. Contracts: Remedies
    • Law:
    • – Money Damages

    • Equity:
    • 1. Injunction
    • 2. Specific performance
    • 3. Rescission
    • 4. Reformation
    • 5. Quiet title action
    • 6. Partition proceedings
  246. Contracts: Specific performance
    Used to enforce a K for the sale of a unique item
  247. Contracts: Condition Precedent
    Act or even (other than lapse of time) that must occur first, before a party has any duties from K
  248. Ks w/ Minors
    – Minors regarded as not having capacity to understand Qs involving contractual rights

    – Person dealing with minor does so as his peril and subj. to right of minor to avoid K
  249. Ks w/ Minors: Ks that cannot be avoided
    • 1. Taxes
    • 2. Penalties
    • 3. Bank regs
    • 4. Military
    • 5. Necessaries (parents responsible for reasonable price of necessaries for children)
  250. Statute of Frauds
    • MY LEGS
    • 1. Marriage
    • 2. Year (1)
    • 3. Land
    • 4. Executor
    • 5. Guarantee/Suretyship
    • 6. Sale of Goods ($500+)
  251. Main Purpose Rule
    Oral promise to answer for the debt of another is enforceable if the promisor's main purpose is to further his own economic advantage
  252. Parol Evidence Rule
    After agreement is in writing, any prior oral or written or contemporaneous oral agreements evidence is inadmissible to alter, vary, or contradict writing

    NB: If could come to show what parties meant by a term
  253. Statute of Frauds: Exceptions
    • 1. Fraud
    • 2. Mistake
    • 3. Illegality
    • 4. Duress
    • 5. Partial integration
    • 6. Conditions precedent
  254. Statute of Frauds: Condition Precedent
    Failure of a condition precedent to by met = no K, thus, oral conditions precedent are allowed to prove no K had been formed
  255. UCC: Requirements K
    K agrees to supply as much of a good as is required by the other party; other party promises it will obtain goods exclusively from supplier
  256. UCC: Cover by buyer
    – UCC

    • – After covering, aggrieved buyer may recover:
    • Price to cover – K price + incidental and consequential damages
    • – Measured at Breach
  257. UCC: Impracticability
    – UCC

    –Delay is not a breach if sellers performance is made impracticable by a contingency whose non-occurrence was a basic assumption on which the K was made
  258. UCC: Impossibility
    – UCC

    • – Subjective: Will not excuse duties of performance under a K
    • – Objective: Will excuse performance under K
  259. 3d Party Beneficiaries: Approach
    • 1. ID 3d party
    • 2. Intent to benefit test:
    • – Incidental? No rights
    • – Intended? Step 3
    • 3. Has 3d party vested?
    • – Learned of K and assented to it?
    • – Changed positions in reliance upon K
  260. Non-conforming goods: Options
    • 1. Reject whole shipment
    • 2. Accept whole shipment
    • 3. Accept any commercial unit/s and reject the rest
  261. Incidental Damages
    • Expenses incurred by injured party
    • 1. Expenses for inspection, receipt, transportation
    • 2. Storage of rejected goods
    • 3. Expenses associated w/ buying replacement goods or services; and
    • 4. Any other expense related to delivery/non-delivery
  262. Consequential Damages
    – Damages not directly from breach

    – Come from results of the breach; indirect in nature

    – Supplier has to have reason to know of Buyer's losses
  263. Frustration of Purpose
    Reason why you entered into K has changed

    E.g., I'm no longer in biz of selling corn; I'm not longer in a band so I don't need to rent your gym
  264. UCC 2-609: Right to Adequate Assurances
    – Reasonable grounds for insecurity: Party may (in writing) demand adequate assurances that performance will occur

    – Assurances must be provided w/in reasonable time (≤30 days)

    – Failure to assure = repudiation of K
  265. Fee Simple Absolute
    Grantor retains no rights, grantee obtains all rights associated with land
  266. Fee Simple Determinable
    Grantor rights: Reverter (automatic)

    Language: "While..." "So long as..."
  267. Fee Simple Subject to Condition Subsequent
    Grantor rights: Right of Reentry (Duty)

    Language: "But if..."
  268. FSSubject to Executive Limitation
    • – Grantor rights: None
    • – 3d party rights: Executory Interest

    • – Language: Either FSSEL or FSSCS language
    • – Doesn't return to grantor, but a 3d party
    • – No present interest until proviso met

    E.g., "To A, so long as A finishes college before he turns 30, if not, then to B."
  269. Life Estate
    • – Grantor rights: Reversion
    • – 3d party rights: Remainder

    – Interest could be in grantor or someone else
  270. RAP
    – If it can't vest w/in 21 years of all lives in being
  271. RAP Application
    • COPER
    • 1. Contingent Remainders/Class gifts
    • 2. Options to purchase (fee options)
    • 3. Powers of appointment
    • 4. Executory Interests
    • 5. Rights of first refusal
  272. Restraints on Alienation
    – Restrictions prohibiting recipient from selling or otherwise transferring interest are void

    • – Valid Restraints:
    • 1. Prohibition against partitioning property for a limited time
    • 2. Right of first refusal

    • E.g., “To A for life with remainder to B, provided that B does not sell, mortgage or transfer the property, otherwise, back to A.”
    • – The “Provided that...” provision is void, but B still is a remainderman
  273. Concurrent Estates
    • 1. JT
    • 2. Tenants by the Entirety
    • 3. Tenancy in Common
  274. JT
    • 4 Unities:
    • T-TIP
    • 1. Time
    • 2. Title
    • 3. Interest
    • 4. Possession

    – Survivorship
  275. Tenants by the Entirety
    • – Reserved for husband and wife
    • – 5th Unity: Person
  276. TiC
    – When JT severed, becomes TiC

    – Only one unity: Possession

    • Ways to sever
    • – Conveyance inter vivos
    • – Death of one of two remaining JTs
    • – Mortgage under title theory
    • – Final partition actions (must be final, pending don't do anything)

    – No survivorship
  277. Mortgage Title Theory
    – Minority

    – When mortgage is taken out, it's not a lien against the property, it's actually a conveyance to the bank

    – Severs JT into a TiC
  278. Mortgage Lien Theory
    – Mortgage isn't a conveyance

    – Doesn't sever JT
  279. Estoppel by Deed
    A sells property he didn't own to B (this would be invalid), but then A gets property somehow. He's estopped from not conveying it to B.
  280. License
    Revocable personal privilege to enter the servient tenement of the licensory w/o liability for trespass
  281. Easements In Gross
    • 1. No dominant tenement
    • 2. Don't run with land
  282. Appurtenant Easements
    • 1. Two parcels:
    • – Benefitted: Dominant
    • – Burdened: Serviant
    • 2. Run with the land
  283. Easement: Creation
    • 1. Express: Grantor to grantee
    • 2. Necessity: Landlocked; ct. must declare
    • 3. Implication: Reflect practices and customs of property
    • 4. Prescription: Adversely possessed (no exclusivity)
  284. Easements: Termination
    • 1. Written release
    • 2. End of necessity
    • 3. Abandonment: Requires intent and physical act
    • 4. Merger: Unity of ownership
  285. Covenants
    – K in which Covenantor makes a promise to Covenantee to do/not do some act tied to the use of the land

    – Covenant running with land: Imposes duties upon use of land, regardless of owner (e.g., A can sell to B
  286. Tenants/LLs: Privity of K
    Can get entire amounts past due, for all sub-lessees
  287. Tenant/LLs: Privity of Estate
    Can only get what a specific sub-lessee owned
  288. Tenants/LLs: Privity Example
    A leases from LL for $1000 a month.

    A is in Privity of K and estate w/ LL.

    A assigns to B. B makes all payments.

    • A is in Privity of K w/ LL
    • B is in Privity of Estate

    B assigns to C. C misses 3 payments.

    • A is in Privity of K w/ LL
    • B has no privity
    • C is in Privity of Estate

    C assigns to D. D misses 5 payments

    • A is in Privity of K w/ LL
    • B has no privity
    • C has no privity
    • D is in Privity of Estate

    LL could recover $8,000 from A, or $5,000 from D, and $3,000 from A. LL can’t recover from C, even though C missed 3 payments.
  289. Assignment vs. Subleasing
    • – Assignment gives all interest in property; privity passes
    • – Subleasing gives some interest in property; privity does not pass
  290. Novation
    Third party takes over K for another party, relieves other party of K obligations
  291. Constructive Eviction
    • 1. Premises "uninhabitable"
    • 2. Tenant must move out
  292. Types of Tenancy
    • 1. Years: Fixed term
    • 2. Periodic: No end date
    • 3. At will: Indefinite
    • 4. Sufferance: Holdover tenant
  293. Delivery of possession rules
    • 1. English Rule (majority): LL must deliver possession at lease inception
    • 2. American Rule (minority): T2 only has cause of action against holdover T1; LL only has to deliver right of possession
  294. Subjacent/Lateral Support
    Landowner is strictly liable if his excavation causes unimproved adjacent land to subside
  295. Adverse Possesion
    • AH ON ES
    • Actual
    • Hostile
    • Open and Notorious
    • Exclusive
    • Statutory period
  296. Deeds: Valid Delivery
    • 1. Proper execution
    • 2. Intent

    NB: Physical possession not needed
  297. Risk Assumption Before Closing
    • Equitable Conversion: [Majority]
    • – Risk of loss placed on buyer during executory period
    • – Buyer is equitable owner of land
    • – Seller is equitable owner of right to full purchase price
    • – Shifts burden and the benefits to the purchaser

    • Uniform Vendor & Purchaser's Risk Act
    • – Risk of loss on buyer only if he has legal title or possession of property
  298. Marketable Title
    Every K contains implied warranty of marketable title
  299. Encumbrances on Land
    • 1. Mortgage
    • 2. Lien
    • 3. Easement
    • 4. Equitable servitude
    • 5. Zoning violation (existing regulation)
    • 6. Future interest
  300. Bona fide purchase (BFP)
    • 1. Pays value (purchaser, mortgagee, jgmt creditor)
    • 2. Takes in good faith; and
    • 3. Takes w/o notice ** Key MBE Element **

    Benefits: Protected by recording statutes
  301. Recording Statutes Types
    • – Pure Race: 1st to record wins
    • – Notice: Last BFP wins
    • – Race/Notce: 1st BFP to record wins
  302. Quitclaim
    "I'm not saying I have anything, but what I do have is yours."
  303. Mortgage
    Interest in land created in writing providing security for performance of a duty
  304. Mortgage: Causes of action for default
    • – In personam on the debt
    • – In rem on the security
  305. Types of Grantees
    – Assuming: Takes on mortgageof another; steps into shoes of another; primarily liable

    • – Subject to Mortgage: Not personally liable; you know it's out there (you could be foreclosed upon)
    • NB: Silence in dee = same thing as subject to
  306. Purchase-money Mortgage
    Takes priority over other prior mortgages, regardless of recording statutes; must be recorded
  307. Foreclosure
    Method by which security is applied to satisfy debt
  308. Deficiency Judgment
    Allowed when proceeds of foreclosure sale don't satisfy debt
  309. Exoneration
    Right of surety to compel mortgagee to proceed first against the person or property primarily liable