Civ Pro
In General:
Personal Jursidiciton: Nationwdie pj service of process
100 mile bulge of federal court house for party added by impleader or required joinder
If contacts with US (but not state) THEN federal law claim, and minimum contacts and federal-law claim.
SMJ
Diversity
1. No will, then the exception to diveristy jx does not apply
2.
Supplemental
1. Since the construction accident claim, the mom and son added a new defendant who messed
with the signs. Since there is anew D, she does not have diversity and is barred because her
claim is not $75k.
2. NAMED class PLAINTIFFS claim is what matters for DJx. SJx on the rest.
NO SMJ
3. If there were parties added by impleader or joinder, then no SJx if not for $75,000 or more.
4. If FQ, then there can be SJx where common nucleus of operative facts test is met.
PJ
1. For acourt to have PJ, there must be minimal contacts (purposeful availment, specific jx (where
defendant has contact with state like the action) or general jx (domicile/continuous systemic
contacts with state) to not offend due process or the TNFPSJ.Here, the company did avail itself
of State B because, as an exclusive seller to State A, it did not intent to put anything in State B
purposefully and did not anticipate being hailed in their court.
2. PJ comports with due process (Minimum contacts and TNFPSJ)
3. Full Faith and Credit is just STATE courts aginast STATES
4. Judgment entered in one federal court with PJ can enforce in other federal court but NOT
through the Full Faith and Credit Clause.
REMOVAL JX
1. FORUM DEFENDANT RULE: Protects out of state defendnats from potential bias in state courts.
a. When SMJ from Diversity Jx AND defendant is a citizen of the state the case is filed
THEN
i. Don’t want you getting beat up in federal home turf of defendant
b.
Pleadings
Amendments and Supplemental Pleadings
1.
An amendment relates back to the original date of filing of original complaint. (I file in
Jan 1. I amend August 1. If August is outside of SoL, Jan 1 is the original date so its in
SoL).
2.
The last day that an answer can be served is 14 days after the amended pleadings was
served OR 21 days after original service (whichever is later)
Service:
3.
Federal rules allows sercie that follows state law governing courts int eh state where the
federal district court is located
a. Service federally valid by:
i. Personal service (or agent)
ii. Following rules of the forum state
iii. Defendant’s dwelling with age and discretion
Rule 11:
1. Sanctions can be issued for when an attorney signs there is (or WILL) be evidentiary support
after a rzn opportunity for investigation/discovery
Mulitpled Parties and Claims:
1. 67 patients and $3M ok because the state certified the class. Notice to the whole class
unnecessary
2. Can’t OPT OUT of class when there’s prejudicial risk (disparate decisions or interest) OR
when the opposing party’s actions apply to whole class so injunction is inapporpriate
PreTrial Procedure
Discovery Scope and Limits
1. Expert W testimony not discoverable unless testify are NOT discoverable UNLESS its on a
court-ordered physical/mental exam OR exceptional circumstances.
Mandatory Disclosures:
1. 30 days before the date set for trial
Trial Procedure
Jury Trial
1.
2.
The court must provide jury instruction sthat advise jurors on their deliberation procedures and the
applicable law. The court has ultimate authority to decide when and how to provide jury
instructions so long as it complies with FRCP 51
THE COURT MUST INFORM THE PARTIES OF ITS PROPOSED INSTRUCTIONS BEFORE IT
ISNTRUCTS THE JURY and the parties give their closing arguments AND
The COURT MUST GIVE THE PARTIES AN OPPORTUNITY TO OBJECT (on the record and
away from the jury) before the instructions and closing arguments are delivered to the jury.
Post Trial Procedure
Appeals
1. Losing party in a non-jury trial papeal, the appellate court will accept the findings of fact unless
clear error occurs.
2. MUST be a final judgment to be appealed. If motions are being heard, it’s NOT final
RULES:
Additur adds to inadequate jury award. NOT IN FEDERAL because 7A.
Remittitur: Plaintff offered reduced damages OR a new trial.
SERVICE: Follow the forum’s laws
Request for admission are UNLIMITED.
If responding party fails to admit something that is LATER TRUE< then you can ask for court fees rzn to
make that proof. The court MUST grant unless not important, or the responding party believed
it would prevail, or other ood reason.
Compesnatory + Punitive damages (State law allowed) + attorney’s fees (state law allowed) = Amount in
controversy
Erie: Avoid forum shopping.Diversity jx: State substantive law and federal procedural law.
In determining a state’s substantive law, the U.S. district court will be bound
by the rulings of the state’s highest court. If the state’s highest court has
not spoken on an issue, however, the federal court must try to
determine how the state’s highest court would rule on the issue, if it did
consider it. To make this determination, the federal court will generally
look to any lower state-court decisions that have considered the issue
and will follow a lower court’s view, unless it believes that the highest
state court would not follow it.
Pre Tria conference: BROAD Discretion. Only reversed for arbitrary or capricious typewh
NO MEMO IS REQUIRED IN BENCH TRIAL
Second dismissal IS an adjudication on the merits.
Second action for claim preclusion is NOT same. Has to have existed at same time, place, manner kind of
thing.
Res judicata/claim preclusion: MUST be same parties. BUT---If a counterclaim was not asserted and then
the parties swap under what HSOULD have been counterclaimed, there can still be
counterclaims.
Default judgment: Requires not answering service. BUT clerk can’t enter the default IF the defendant has
appeared before OR if plaintiff does not claim a certain sum or sum that is calculatable.
Data must be lost INTENTIONALLY for the judge to say the lost information is unfavorable to the
corporation
MINOR defendant must be served BY RULES OF STATE WHERE SERVICE IS MADE
Discretion: Injunction and admissibility - - abuse of discretion
Fact: Credibility of witness or facts - - Clear error
Legal issue: Conclusion of law or jury instructions - - De novo
If Jury/party/attorney engaged in prejudicial misconduct, then must new trial. BUT IF NOT, permissive.
(Here, juror looked something up, but unanimous court jury swung other way). IF affects party’s
substantial rights.
Federal common law: Diversity case state law to substantive issues. In limited, federal common law
governs, like rules made by federal courts in judicial decision. (Uniquely federal interest)
Substantive issue: Legal rights and duties (claims, defenses, etc)
Procedural: Jury trial, judge, etc
Final judgment stays on applying for enforcement? Well, unclear. If it’s unclear does a federal law cover?
If so, then it applies.
For issue preclusion, the only party who must be in it must be the party against whom a issue preclusion
is asserted, unless a narrow exception.
A case cannot be removed to federal court under diversity jurisdiction if any
defendant is a citizen of the state in which the case is filed (the “forum
defendant rule”). (FORUM DEFENDNANT RULE)
CIVPRO (above)
Con Law:
Judicial Power
Source and Scope
1. 11th Amendment generally bars unconsented private suits against states for retroactive MONEY.
Jx of the SCOTUS
1. AISG: Can review if rely on federal law at all.
Judicial Review in Operations:
1. Parochial school sues on behalf of students denied admission because of state law. Can’t have a
3rd party claim unless VERY close, like teacher and family (privacy interests). (Standing).
a. Next issue: Impairs fundamental right? Strict Scrutiny, which basically means state loses.
Commerce:
1. Channels, powers, instrumentalities, people and things, instate aggregation
State reg and Taxation of Commerce
Dormant Commerce Clause
1. State can limit out of state things in commerce SINCE IT WAS A MARKET PARTICIPANT.
Equal Protection
Nonsuspect classifications
1. Age. Must be rationally related to legit state interest.
General considerations:
1. Hearing aid required for safety, sorry you don’t wear it because of religion. Disparate impact
without intent ONLY gets rational basis.
Quasi-suspect classifications:
1. Law based on naturalization for family for women vs. men has disparate impact. This is still
gender discrimination.
Federal Interbranch Relationships
Delegation of Legislative Power
1. Congress can delegate its power with a limitation on it that it must be intelligible. It can
delegate its INCIDENTAL (not exclusive) powers. Need a policy, an agent, and scope of
agency’s authority.
Freedom of Religion
Establishment
1. Government assistance to religious school OK if secular AND religiously neutral.
Freedom of Expression and Association
1. The publisher did not prove that the article is protected, then prior restraint does not apply.
In prior restraint cases, the burden is on the government to prove
that the material to be censored is not protected speech.
Regulation of Time, Place, Manner and Expression
1.Sidewalk is public forum.
2. Banning WHERE someone can speak, not WHAT, it is content-neutral.
3. Narrowly tailored to serve Sub. Gov. Int. and leave open alt channels of communication
Regulation of Content:
1. Fighting words, inciting, defamation, obscenity (FIDO) are unprotected.
13/14/15 amendment Enforcement:
1. Prohibits incidents of slavery with 13A.
2. Congress can NOT create new EQPC rights
Substantive Due Process
Standard of Review
1. Substantive due process is the deprivation of life, liberty, or property and it affects an
ordinary right , you get rational basis. If it’s a fundamental right, you get FVIP and strict
scrutiny.
2. Procedural due process is about the notice and hearing to deprive LLP.
Fundamental Rights:
1. Electoral regulation: Severe burdens on voting gets Strict Scrutiny. Six month burden to move
in before voting is bad.
Takings:
Type of takings:
1. Essential nexus to rational cost of building concrete below island resort is good when
compared to price of the 5% hike to get it done.
2. Nexus between imposed condition and the LGI and a rough proportionality between the
impact on landowner and the proposed development impact on community
Prohibited Legislation:
Ex post facto:
1. Even if serving a sentence concurrently, you have a right not to be violated when you are
arrested, then law changes, then you get charged with the retroactive law which states can’t
make.
QWORLD RULE:
14A enforcement only applies to state actors, not ALL actors.
Content based speech (including political speech) must pass SS. Regulation must be necessary and
narrowly tailored to meet a compelling government interest.
14A applies when STATES treat similary situatied people different, not federal government.
CONGRESS CANNOT TAX EXPORTS and Closely related servies.
Remedies:
Discro against interstate commerce (favoring in state) is invalid unless furthers legit, NONECONOMIC
state interest like health and safety OR no alternative exists.
Traditional public forum like here, a city park’s auditorium. INTERMEDIATE SCRUTINY: Narrowly tailored
to a substantial government interest that leaves alt channels open.
Regulatory taking: Totality, including nature of government action, severity of the economic impact, and
interference with owner’s rzn investment backed expectations.
If you can still sell the land, OR get the original investment back, no compensation.
He can still resale the mining equipment.
11A:
POLTICAL FUNCTION EXCEPTION TO STRICT SCRUTINY (Foreigners trying to be teachers and cops)
Eleventh amendment
FED COURT
YES: USA v Oklahoma
YES: Texas v Oklahoma
YES: Bankruptcy Court v Oklahoma
NO: Cromer v State
NO: Canada v Oklahoma
Except: Consent; Civil War Amendments; state official sued for consx violation; personal state
officer suits; state official sued for prospective damages
CONTRIBUTE different than EXPENDITURE:
Contribution:limit to single candidate, political candidate, increase of limit on amount of contribution to
candiate when self-financied opponent exceeds certain spending amount. INTERMEDIATE
scrutiny
Expenditure: Limit on spending by coprorations or unions in support of or oppossiont to candidate;
candidate on his/her own behalf STRICT scrutiny
CONLAW (ABOVE)
Contracts
Breach of Contract
Remedies:
1. Men’s apparel. Damages. Prove with rzn certainty. Lost profits are speculative. However,
here, they gave reliable facts to that.
Restitution:
1. The amount the developer would have had to pay for the portion of the paving job
completed since it was below-market price, then restitution damages.
RULES:
A NEW term FALLS AWAY BETWEEN MERCHANTS if it CHANGES THE K. (Here, liability)
Destruction of the antique car yields no contractual obligation
Bilateral contract: If one party starts performance, even before the contract is “accepted” by “bilateral
signatures” (a term the K required), the offeree is bound to finish performance. (Drilling
agreement).
At-Will employment can be terminated at any time by either party for any reason
Buyer breach is entitled to restitution for advance payments, less an offset of actual seller’s damages of
$500/20% OR actual damages if lost volume seller.
Quasi Contract: Benefits given without a contract (physician and good Samairatn; fixing windows after the
tenants abandoned property)
Breach of a construction contract will entitles nonbreaching party to compensatory damages placing
party in position as if it performed.
If breaching construction contract party is the owner, and the breach occurs before or during
construction, the builder can recover lost profits and reasonably incurred costs.
Tearing acontract into pieces is consideration/rescission enough to support a K mod.
Fraudulent misrepresentation requires proof of the following: (i) the
misrepresentation is fraudulent, meaning (a) a false assertion of fact
made knowingly, or recklessly without knowledge of its truth, and (b)
with intent to mislead the other party; (ii) the misrepresentation induced
assent to the contract; and (iii) the adversely affected party justifiably
relied on the misrepresentation. Generally, an assertion of an opinion,
such as a belief or judgment as to the quality, value, or authenticity of
an item or the occurrence of a future event, is not an assertion of a fact.
However, an assertion of an opinion may, if reasonable, be interpreted
by a party as an assertion that the person knows facts that are not
incompatible with the opinion or that the person knows facts sufficient to
justify the formation of the opinion. Here, the store owner’s assertion
that the store was a “money maker” was an opinion about the store’s
value, but it was also an assertion that the owner knew facts sufficient to
justify that opinion. However, the store owner knew that the store had
never been profitable. The statement was thus a false assertion of the
store’s profitability that was made knowingly with the intent to mislead
the friend, the statement induced the friend to invest in the store, and
the friend justifiably relied on the statement.
A promise to sell exclusively your item if sold any at all implies a promise to sell the entire period’s one
year output.
Painting kept too long and sold from gallery after rejected? Got price of painting at time of conversion.
Impracticability: Does NOT apply when the party assumed the risk (like computers being able to do what
you want it to, but it turns out that’s impossible)
UCC allows acceptance to be made however, even if it’s super weird like exchanging letters and they just
happen to be for the same amount for a new sedan.
All parties to UCC must agree to modification.
Promissory estoppel allows a party to enforce a promise on which it reasonably and determentally relied
when NO contract was formed. Leaving a sticky note requesting legal services then doing so IS a
contract, an implied in fact (action) contract.
Contracts (Above)
CrimLaw
General Principles
Mens rea
Parties to a crime
1. Did not tell when interrogated by police made him an accessory after the fact in chemical lab
explosion.
2. Friend of mayor paid $5,000. Mayor was guilty.
a. Excluded from liability as an accomplice if crime needs 2+,
b. Criminal statute imposes liability on only one participant and
c. The person acts as the non-liable participant
Responsibility:
1. M’Naghten means you know the actions you take are wrong.
2. Durham is but for
Other Crime
Crimes against property
1. Larceny by Trick: Possession, but not title. False pretenses is title AND possession. (Stealing
motorcycle without intent to come back and pay).
2. Abandoned property is not larcenous
3. Crops are real property. Picking is SEVERANCE, but not stolen yet. They were just real
property, not personal property (for larceny element) until put in car likely?
4. Burglary: Breaking and entering into the dwelling of another at night with the intent to
commit a felony therein. ANY FORCE is enough for burglary.
5. Larceny by trick:Possession by trick, not obtained by title and fale pretenses.
Homicide:
Types
1. Murder.
Inchoate:
Conspiracy
1. Can be charged of all foreseeable crimes from initial actions of co-conspirator (Pinkerton
rule)
Defenses:
1. Arrest is a defense against battery
RULES
Second degree murder: No deliberation. Knowingly kill another. Like common law, substantial certainty
death will occur
Common law manslaughter: Intentionally killing another in the heat of passion upon adequate
provocation or in imperfect self-defense (voluntary manslaughter) or unintentionally accidentally
killing someone during unlawful act (involuntary manslaughter)
Due process does NOT preclude requiring a defendant prove they acted with an affirmative defense by
preponderance of the evidence
If you kill someone’s twin and it’s a rzn mistake, you can get murder down to vol. manslaughter. Or IF
YOU ARE PROVOKED IN HEAT OF PASSION AND KILL SOMEONE ELSE WHILE TRYING TO KILL
PROVOKER.
Whether provabit value outwieghst harm to victim is CIVIL not CRIMINAL. For sexual assault, the
testimony went to the issue of consent.
Kidnapping is a KNOWING offense. Mistake of law allowed when it NEGATES mens rea.
Felony murder: Cause of death during inherently dangerous. Must be actual cause and proximate cause.
BUT FOR your actions, they wouldn’t die. BUT FOR shooting the ceiling, the person wouldn’t have
had a heart attack.
CrimPro
Fourth Amendment Application to Arrest Search and Seizure
Search and Seizure
1. Reasonable expectation of privacy in hotel room. Even if uncorroborated witness testimony,
that only provides RS for a search warrant, not to permit warrantless search of a room.
2. Bank records, open field, NO Reasonable expectation of privacy.
3. Pocket bible did not resemble contraband by plain feel
4. Suspicion(RS) of having a weapon is enough to terry stop, even if you pretty much are
pulling over because of their drug convictions
Fifth Amendment Rights and Privileges
Fifth Amendment in a police interrogation
1. Man was questioned while cuffed pre-Miranda rights. Not admissible because he was IN
CUSTODY and INTERROGATED
2. Evi. outside of miranda allowed to impeach, not anything else.
Privilege against Self Incrimination
1. Does NOT extend to custodial corporate records
Sixth Amendment Right to Counsel
Applicability: Right to Counsel
1. 6A right to counsel. If voluntarily offering answers post-miranda, not admissible if the police
specifically keep your lawyer at bay.
Pretrial Procedures
Eyewitness ID Procedures
1. 6A right to counsel during all stages of prosecution. HOWEVER no right to counsel in lineup
BEFORE commencement of judicial proceedings.
Trial:
1. The govt has to prove every element of crimes beyond a rzn doubt. Govt can’t shift that
burden to defendant.
Post Trial:
Double Jeopardy:
1. DPC requires NO harsher sentence upon retrial of a defendant who appealed a conviction.
2. While convicted again, got a fine. NOT allowed!
3.
Evidence
Presentation of Evidence
Introduction of Evidence
1. Judicial notice is court acceptance of fact without formal proof. It can be accurately and
readily determined, nor need be generally known.
Burdens and presumptions
1.
RELEVANCE
General Considerations
1. Defendant admits criminal history. Prosecution refuses, wants to show he was convicted on
same charge before. Prejudicial.
Character Evidence
1. Civil action for negligence, where character evidence is attempted to be introduced to show
they consistently speed when its not a hbit.
2. Impeach with character evidence in embezzlemet to show inconsistent with crime charged.
3.
WITNESSES
Impeachment
1. On cross, asking if he had failed to post signs before. Not probative to truthfulness, then it’s
not admissible as the evidence will try to show they do this (action) repetitively.
2. 10 year old or less crimes of dishonesty are always automatically admissible to impeach ANY
witness when conviction (not confinement) is not 10.
3. CANNOT impeach if the charge was pardoned
Competence:
1. Jurors cannot testify as to juror’s mental processes.
TANGIBLE PROPERTY:
Authentication:
1. Personal knowledge may testify
Best Evidence Rule:
1. Yes, because of personal knowledge and no K admitted.
Privileges and other Policy Exclusions:
Privileges
1. Sustain objection as the ACP is applicable here; meeting with doctor, client, and lawyer
Public Policy Exclusions
1. YOU CAN NOT USE ANYTHING FROM COMPROMISE OFFERS OR NEGOTIATIONS
Hearsay
What is hearsay
1. Murder! Murder! But not used to prove the defendant murdered the neighbor. (Show effect
on declarant)
Hearsay Exceptions:
Declarant Unavailable as a Witness
1. He MADE them unavailable, so no defense to their statements.
QWorld Rules:
Statements (1) offered against an opposing party, (2) made by that party’s agent or employee and (3)
pertinent to a matter within the schope of the agency or employment are excluded from the
hearsay rule.
Provide notes interview dead witness if no longer available has to show (can’t not have it) no other way
to get it either
BER: When contents are at issue, the rule requires original or reliable duplicate of a
recording/writing/photo be produced to provie its contents. Exception: Other evidence when
the party against whom the original would be offered HAD CONTROL, WAS PUT ON NOTICE BY
PLEADINGS, AND FAILED TO PRODUCE OG DOCUMENT. NO SPECIFIC REQUEST REQUIRED FOR
THE PARTY AGAINST WHOM IT IS SOUGHT TO PUT IT INTO THE EVIDENCE.
If compromise is there, you can NOT use anything to prove or disprove validity of a disputed claim OR
impeach by a prior inconsistent statement.
You CAN show that expert W suck by “you failed three tests in engineering school” to go to the weight
of their testimony.
“I’m dying…”Don’t let them get away! Excited utterance.
Witness can refresh recollection with ANY item, even police partner’s notes.
Entrapment: Prove that they wouldn’t have done it without the police’s prodding
A grave marker is a family record!
A declarant’s statement allowed under hearsay exception CAN lead to the declarant’s being impeached
as if they were in court. Here, the statement “Look at the way (defendant) is driving!” can be
impeached (since it was an excited utterance). They can introduce evidence to impeach the
declarant, that they were biased and wanted the defendant dead.
Evidence (Above)
PROPERTY
Ownership
Present Estates
1. Friend owned fee absolute.
Landlord and TENANT
Duties of Tenant
1. IW for Habitability can NOT be waived by tenant.
2. Constructive eviction involves the tenant moving away
TITLES
Adverse Possession
1. You can tack, but both parties had to have possessed (ECHO) the property.
Mortgages and Security Interests
Transfer
1. When silent or ambiguous, you take subject to , NOT ASSUME, the mortgage.
DISPUTES ABOUT THE USE OF LAND
Covenants Running with the Land
1. WRITTEN if it burdens the land. (PWINT:
RULES:
Installment contract; Title not deliverable until final payments, so a lien, encumbrance, covenants if fine
until the final payment.
Landlord is NOT required to accept holdover tenant at FMV if LL wants to evict
SoF for property:
1.
2.
3.
4.
ID parties
Words of intent to buy or sell
Description of the property
Sales price
Liquidated damages NOT allowed if more than 15% of contract!
Adverse possession: If you AP with color of title, you get occupied area of 2 acres PLUS the whole area of
10 acres total!
FORGED documents are void and have no effect on property rights whatsoever.
A property owner must be granted a special-use permit if the property owner has complied with the
procedures for obtaining the permit and has estabilishe entitlement to the permit.
Once a deed has been delivered and accepted, the grantee owns the property and the transfer cannot
be cancled by destroying the deed. Therefore, dishonesty (lying saying you would tear it up and later
NOT tearing it up) is inconsequential. A deed is delivered when grantor has present intent ot transfer
ownership to the grantee.
Easement holder has duty to repair easement. CAN ask for contirubtion, even if a prescriptive easement
(like advese possession)
Shifting: Divests a grantee
Springing: Divests a grantorrrr
At close of all property purchase, warranty of marketbale title
Nonexistenet grantee means grantee (above) not ID’d, so it is VOID.
Assumption is not a RELEASE. It puts you UNDER the other for the mortgage.
Life tenant must pay taxes on financial benefit received from the land. (If living on land, then pay taxes
to the extent of use of the land).
Life tenant must make repairs up to amount of income produced on property. So $1,000/month of rent,
they have to make repairs of $12,000 in a year. If they live on the land, then they have to pay up to FMV
of repairs.
RAP only for anything that is NOT reverting future interest to grantor. Sometimes, it does not apply in
commercial options. Bad as to one member of class, then it voids all members of class. EXCEPT Transfers
of a specific dollar amount.
Co-owner tenant: can collect operating expense (TAXES) but not rent. If the only one on property, then
can ONLY collect taxes above the rental value.
Repairs: can compel some. No right to contribution for improvements, unless partitioning.
Breach: Eviction of T by Landlord.
Actual eviction: If Landlord exlucdes T, then lease is terminated and tenant’s obligation to pay ends.
Partial eviction: If Tenant excused form paying rent for Landlord’s partial eviction, but must pay
reasonable rent value if partial eviction by a third party with superior claim; tenant not excused form
paying rent for partial eiction by adverse possessor
Constructive eviction: Substantial interference caused by Landlord’s actions or failure to act, tenant
MUST GIVE NOTICE, Landlord FAILS to respond, and tenant MUST VACATE premises within reasonable
time after Landlord fails to perform.
Retaliatory eviction: Landlord may not evict a residential tenant for complaining about housing code
violation or refusing to pay rent when Landlord breaches warranty of habitability
10%: Liquidated damages for breach of sale of property
Equitable conversion: Buyer bears risk of loss between K signing and close.
Adverse Possession:
Exclusive – No sharing with true owner
Continuous – staturoy period, seasonal is OK, tacking is good; tack must be by deed, K, or
descent or devise
Hostile – Possess the land without owner’s. Majority: Intend to claim as own!
Open (and actual) – Can’t be secret; actuall possession of property. Deed/constructive adverse
possession gives title to the WHOLE
Delivery of deed:
Delivery to grantor is not delivery, but grantee’s is. (Farmer to son deed. Farmer giving to his
own attorney is not delivery gernally, but giving to his son’s attorney IS).
Delivery to a third party with a condition (upon my death) is NOT delivery if the grantor has right
to recover the deed. If not, then treat like future property interest.
If conditioned on death, grantor must give present gift.
Valid deed:
Identifies the parties, grantor’s SIGNATURE, words of conveyance, reasonably definite property
description. (Bounds, signature, parties, conveyance)
Title insurance: Lender? As long as the mortgage. Borrower? As long as the possession.
General warranty: SCEWQF: Seisin (owns land as described), right to convey (grantor has right to
transfer title), encumbrances (against), warranty (defend grantee against third party’s claim), quiet
enjoyment (grantee not disturbed in possession by third party’s lawful claim), further assurance (grantor
will do whatever future acts reasonably necessary to pass title if later determined title is imperfect).
Special warranty: Only assures for the time held by the grantor
ADEMPTION: Fails because no property
Lapse: Fails because testated beneficiary died before the will edited
Trust: Fiduciary to property proepty and income gerneated for benefit of beneficiaries. Inter vivos:
Created when the settlor conveys his property to the trustee while the settlor is alive. Testamentary
trust: Created in will. Pour over trust: Created by settlor during his life but not funded until his death by
a devise in his will.
Mortgage: interest in real property that serves as security for an obligation.
SOF!
Lien theory: Debtor/mortgagor has title until foreclosure. Creditor/mortgagee has lien and right to land
if there is default.
Borrower may be relived of liability IF lender impairs borrowers right o recourse against transferee by
modifying loan terms, releasing transferee of liability, or if lender releases or impairs the RP subject to
the mortgage.
Title theory: (minority) technically can repossess whenever, but cannot take possession before
foreclosure
Lien theory state: mortgage cannot take possession before foreclosure!
Redemption: Pay the balance plus interest before foreclosure sale
Foreclsoure terminates a junior interest and has no effect on senior. Purchase money mortgage
exception. Recorded>unrecorded. MUST give notice?
Easements:
Implied easement: Necessity: Dominant under common ownership before, then severed, useless
without easement.
Implied by implication: Common ownership; quais easement at severance; prior use was continuous,
apparent, or known. Rzn necessary to use/enjoyment
Prescriptive easmetn: (AP) Think ECHO, but CHO. (can’t be exclusive)
Easement appurtenant: Runs with the land. Transferred with the estate.
Easement in gross: Benefits the person, not ht estate.
Abandonment: Statement of intent without conduct an dmer non use is NOT enough to abandon.
Runing with the land: PWINT (
Privity (horizontal is burden only) estate and covnenat are in the same instrument (deed)
Privity (vertical) – based on mutual successive interest in the land benefited/burdend
Written
Intent; Through explicit language or implied
Notice: BURDEN ONLY
Touch and concern: About a use on the land
Equitable servitudes: (injunction)
Must be in writing
Requires intent of restriction for restriction to be enforceable by and against successors
Must touch/concern (no privity required)
Enforce against purchase: Notice
HOA/building height
Implied reciprocal servitude:
Intent to create servitude on all plots (common scheme) no writing
Negative servitude (keep you from doing brick)
Notice (inquiry notice counts; look around)
Can reserve right to remove fixtures, but you just have to fix whatever you break (holes in walls from
nails, etc)
Zoning: Enabling laws
Based on use; development; special concerns;
Can’t expand a nonconforming use, but you can grandfather it in
Spot zoning is arbitrary and illegal
Riparian: Belongs to borders. RIPARIAN REPTILIAN BORDERS
Prior approaption; prioryt of beneficial use; prior users stronger rights.
Excavate:
Landowner who excavates on his OWN land is SL only if the adjoining land would have collapsed without
the house on it.
Property (Above)
TORTS
INTENTIONAL TORTS INVOLVING PERSONAL INJURY
Assault
1. I”LL BREAK YOUR ARM TOMORROW is not imminent harm.
HARMS TO PERSONAL PROPERTY AND LAND
Nuisance
1. Substantional and unrzn interference with another’s use and enjoyment of his property.
PRODUCTS LIABILITY
Strict Products LIability
1. Defective product
2. Defect existed when it left D’s control
3. Defect caused injury when used in a foreseeable way
a. HERE, rzn foreseeable did not include drinking alcohol out of skates
UWORLD RULES:
No evidence directly? RES IPSA LOQUITOR glass inside a reparcan of corn problem.
A 12 year old CAN appreciate the danger of a thin ice sign. That’s an element of Att. Nuisance
1. The condition excists where land possessor knows children are likely to trespass
2. The land possessor knows or should that the condition poses unrzn risk of harm/death
3. Children cannot appreciate the danger
4. The risk outwidgh the conditions’ utility and burden.
The DEAD can NOT sue in defamation;
Fraud requires ACTUAL detrimental reliance.
Good perfume smeller guy gets nose damaged by fire at restaurant. He can recover for exemplary
damages under egg shell headed plaintiff rule.
Conversion: FMV at time possession denied, even incorrectly. The man was entitlted to his stock
certificate at $20,000.
IIED: NOT just limited to physical harm, but NIED might be.
Extreme and outrageous at a third party. If their purpose was severe ED, and plaintiff suffered, then
liable.
Otherwise, the plaintiff must have perceived the conduct, the plaintiff was a close relative of theose
harmed, and that defendant knew that the plaintiff was present and closely related to the harmed third
party.
Strict liability: If the shop sold is not responsible, they can get full contribution from the retailer
(previous mfr)
IIED: FEAR (Flagrant Indecency, Exploting known vulnerability, Abusing authority, Repeated harassment)
Kidnapping: Moving MORE than necessary to commit underlying felony is required to be guilty of
kidnapping.i
Yes, you can plead res ipsa.
Individuals can hold out defamation action IF the group is so small other could conclude it means this
person OR the circumstances of publication would cause them to believe they refer to the
judge…the only judge in the district.
Warn a known trespasser about artificial dangers and use rzn care in active operations
STRICT PRODUCE LIABILITY requires PHYSICAL harm of BODY or PROPERTY. (Not including the defective
product itself)
WRONGFUL BIRTH: Parents. Prove the partent doctor relation, the dr failed to diagnose the parents of
rsk for future children of a birth defect, the child would not have otherwise been born, the
parents suffer loss.
Wrongful life: NOT Favored; only brought by children.
Defenses to negligence per se: Excuse violation of statute negligence (crossing median due to heart
attack) by: rzn care, incapacity, need to avoid greater risk, impossibility, or vagueness of law.
Negligent hiring: MUST be on the clock.
Mental disability: SAME STANDARD as me. Me and Josh. Same standard.
Imminent harm means without significant delay. Here, 10 minutes of harm is NOT significant.
12 year old driving a boat is under adult standard because doing an adult activity
False improsinment: ok if you reasonably think someone committed a felony