MBE Weakpoints

Question 1

What is a Final Judgment?

Answer 1

One which ends litigation on the merits (all claims are resolved) and leaves nothing for the rendering court to do but execute the judgment.(Appeal is thereby precluded from any decision that adjudicates some but not all claims in the action.)Priority: HIGH

Question 2

What are the exceptions to the Final Judgment Rule?

Answer 2

1. Rule 54(b) Exception.
2. Statutory Exceptions.
3. Certified Appeal Exception.
4. Collateral Order Doctrine.
5. Writs of Mandamus and Prohibition.
6. Pendent Appellate jurisdiction.
7. Certification of Class Action.
   Priority: HIGH

Question 3

Under the Rule 54(b) exception, when is an appeal allowed?

Answer 3

When:
1. The action has multiple parties or multiple claims;
2. The court directs entry of a final judgment for some of the claims or parties; AND
3. The court expressly determines that there is no just reason for delay.\
*If the above elements are NOT met, then the appeal must wait until after a final judgment for the entire case.Priority: HIGH

Question 4

When may a Preliminary Injunction be issued?

Answer 4

1. Upon notice to the adverse party; AND
2. 2. If the moving party gives security in an amount the court deems proper.\
3. *The Federal Rules of Civil Procedure allow the court to issue both a restraining injunction or a mandatory injunction.Priority: Medium

Question 5

What must the moving party show for a Preliminary Injunction to be issued?

Answer 5

1. Likelihood of success on the merits;
2. Likely threat of irreparable harm to the movant;
3. That the harm alleged by the movant outweighs any harm to the non-moving party; AND
4. The injunction is in the public interest.
5. Priority: Medium

Question 6

What is a Temporary Restraining Order (TRO), and when is it available?

Answer 6

An emergency remedy used to maintain the status quo pending the outcome of a hearing or application.It is ONLY available when the moving party will suffer immediate and irreparable harm.Priority: Medium

Question 7

For an ex parte TRO, what must the moving party do?

Answer 7

1. Provide specific facts in a sworn statement showing immediate and irreparable injury, injury, loss, or that damage will result before an adverse party can be heard;
2. Certify in writing any efforts made to give notice to the adverse party and why notice should not be required; AND
3. 3. Give security in an amount that the court deems proper.\
4. *The United States, its officers, and its agencies are not required to give security.Priority: Medium

Question 8

When may a party amend a pleading as of right?In all other cases?

Answer 8

As of right: Within 21 days after service either of the original pleading OR a responsive pleading/pre-answer motion to the original pleading.In all other cases: With the opposing party’s written consent OR with leave of the court upon motion.Priority: Medium

Question 9

When does an amendment to a pleading relate back to the original pleading?

Answer 9

When:* The amendment asserts a claim or defense that arose out of the same conduct, transaction, or occurrence as the original pleading allegations; OR* The law that provides the applicable statute of limitations allows the relation back.Priority: Medium

Question 10

What is a Compulsory Counterclaim?

Answer 10

A claim that:1. Arises out of the same transaction or occurrence as the opposing party’s claim; AND2. Doesn’t require adding another party whom the court cannot acquire jurisdiction.*It MUST be stated in the party’s pleading; otherwise, it is barred in future litigation.Priority: Medium

Question 11

When presenting papers to the court, what must a party certify under Rule 11?

Answer 11

That:1. It is not being presented for any improper purpose;2. The claims, defenses, and other legal contentions were warranted and non-frivolous;3. The factual contentions have evidentiary support or will likely have it after further discovery; AND4. The denials of factual contentions are warranted.*Sanctions may be issued for failure to comply.Priority: Medium

Question 12

Under the Federal Rules of Civil Procedure, when may multiple plaintiffs join in one action (Permissive Joinder)?

Answer 12

If:1. Joint and several relief is asserted by them OR the claim arises out of the same transaction or occurrence;2. A common question of law or fact to all plaintiffs exist; AND3. Subject matter jurisdiction exists for each claim.*The process is similar for multiple defendants.Priority: HIGH

Question 13

A party MUST be joined in an action if that party is necessary AND joinder is feasible.When is a party necessary?

Answer 13

A party is necessary if:* The court cannot grant complete relief without the absent party;* The absent party has an interest in the action that would be impaired or impeded if that person is not joined; OR* The party’s absence would leave an existing party subject to a substantial risk of multiple liability or inconsistent obligations.Priority: Medium

Question 14

A party MUST be joined in an action if that party is necessary AND joinder is feasible.When is joinder feasible?

Answer 14

When:1. Joinder will not remove subject matter jurisdiction; AND2. The court has personal jurisdiction over the necessary party.Priority: Medium

Question 15

_Class Actions_When can one or more members sue on behalf of an entire class?

Answer 15

1. The class is so numerous that joinder of all members is impracticable (numerosity);2. There are questions of law or fact in common to the class (commonality);3. The claims or defenses of the representative parties are typical of the claims/defenses of the class (typicality); AND4. The representative parties will fairly and adequately protect the interests of the class (adequacy of representation).Priority: Medium

Question 16

_Class Actions_Once the class action requirements are met, the class will be certified when?

Answer 16

If:1. Risk of Inconsistent/Dispositive Adjudications – when separate actions would create a risk of (i) inconsistent adjudications for other class members, or (ii) harm the interests of absent class members;2. Declaratory/Injunctive Relief – the party opposing the class has acted or refused to act on grounds that apply generally to the class so that injunctive or declaratory relief would be appropriate to the class as a whole; OR3. Predominance & Superiority – common questions of law or fact to the class members predominate over any questions affecting individual members and a class action is superior to other available methods to adjudicate the case.Priority: Medium

Question 17

Under Rule 37(e), when may a party be sanctioned for failing to preserve ESI?

Answer 17

When:1. The ESI should have been preserved in anticipation of litigation;2. The party failed to take reasonable steps to preserve it; AND3. It cannot be restored or replaced through additional discovery.Priority: Medium

Question 18

What does the Attorney Work Product doctrine protect?

Answer 18

All materials prepared by an attorney or his agents in anticipation of or during a litigation. They are protected from disclosure unless:1. A substantial need for the materials exist; AND2. A substantial equivalent cannot be obtained without undue hardship.Priority: Medium

Question 19

When may a court issue sanctions with respect to Pretrial Conferences?

Answer 19

If a party or attorney:* Fails to appear;* Is substantially unprepared to participate;* Does not participate in good faith; OR* Fails to obey a scheduling or other pretrial order.Priority: Medium

Question 20

What is the standard on a Motion to Dismiss?

Answer 20

The court must:1. Consider the facts in the light most favorable to the non- moving party; AND2. Determine whether there is any basis upon which relief can be granted for the non-moving party.*The court DOES NOT evaluate the merits of the case.Priority: HIGH

Question 21

What are the Motion to Dismiss grounds?

Answer 21

1. Lack of subject matter jurisdiction;2. Lack of personal jurisdiction;3. Improper venue;4. Insufficient process;5. Insufficient service of process;6. Failure to state a claim upon which relief can be granted;7. Failure to join a necessary party.*Grounds 2-5 are deemed waived if not raised in the first responsive pleading or Motion to Dismiss.Priority: HIGH

Question 22

When will a court grant a Motion for Summary Judgment?

Answer 22

When:1. There is no genuine issue of material fact; AND2. The movant is entitled to judgment as a matter of law.*When reviewing the motion, the court MUST view the evidence in the light most favorable to the non-moving party.Priority: HIGH

Question 23

When will a motion for Judgment as a Matter of Law (JMOL) be granted?

Answer 23

It will be granted if:1. The non-moving party has been fully heard on an issue during a jury trial; AND2. The court finds that a reasonable jury would not have a legally sufficient basis to rule in favor of the non-moving party on the issue.Priority: Medium

Question 24

What are the elements of a valid contract?

Answer 24

1. Mutual Assent (offer and acceptance);2. Consideration; AND3. No defenses to formation.Priority: HIGH

Question 25

What law governs contracts for the Sale of Goods?

Answer 25

Article 2 of the Uniform Commercial Code.\*Under the UCC, a contract may be made in any manner sufficient to show agreement (i.e. conduct showing parties recognize existence of a contract).\*For _mixed contracts_, the ***predominant purpose*** determines which law governs.Priority: HIGH

Question 26

What are the elements of Mutual Assent?

Answer 26

1. **_Offer_**: A manifestation of present intent to contract, with definite and reasonably certain terms, that is communicated to the offeree.2. **_Acceptance_**: A manifestation of assent to the terms of the offer, which indicates a commitment to be bound.Priority: HIGH

Question 27

When is an offer Terminated?

Answer 27

Offers may be terminated *before acceptance* by:* Revocation by offeror;* Rejection or Counter-offer by offeree;* Lapse of time;* Death / Incapacity of either party; OR* Supervening illegality.Priority: HIGH

Question 28

When may an offer be revoked, and which types of offers are *not* revocable?

Answer 28

They may be revoked *at any time before acceptance* through unambiguous words/conduct indicating an unwillingness/inability to contract (effective when received)._Irrevocable offers_ include: option contracts, a merchant’s firm offer, beginning performance for unilateral contracts, and offers that were relied on to the offeree’s detriment.Priority: HIGH

Question 29

What is a Merchant’s Firm Offer?

Answer 29

1. An offer to buy or sell goods;2. By a merchant;3. In a signed writing;4. Which states that the offer will be held open and is not revocable; **AND**5. The assurance to keep the offer open must be signed separately by the offeror.\*Enforceable WITHOUT consideration.Priority: HIGH

Question 30

Rejection vs. Counteroffer

Answer 30

**_Rejection_**: Manifestation of intent to *not* accept an offer (words/conduct) which terminates the offer. Offers CANNOT be accepted after they have been rejected.**_Counteroffer_**: Both a rejection that terminates the original offer and a NEW offer.Priority: HIGH

Question 31

What is the Mirror Image Rule and UCC exception?

Answer 31

The common law Mirror Image Rule holds that an acceptance MUST *exactly mirror the offer*.UCC Art. 2 Exception: The acceptance DOES NOT need to mirror the offer, and additional terms may be added. Additional terms are included if:1. Both parties are merchants;2. The term is not a material change;3. The offer doesn’t limit acceptance to the exact terms; AND4. No objection was made within a reasonable time.Priority: Medium

Question 32

When is an agreement deemed Indefinite?

Answer 32

When the terms of the agreement are NOT certain (they cannot be ascertained to a reasonable degree of certainty), the contract is deemed indefinite and is _unenforceable_.\*A contract that is indefinite as to duration is generally invalid.Priority: Medium

Question 33

What is Consideration?

Answer 33

A ***bargained for exchange*** of a promise for a return promise or performance (that benefits the promisor or causes detriment to the promisee).\*Past or moral consideration is NOT sufficient to support a contract.Priority: HIGH

Question 34

When does Promissory Estoppel apply?

Answer 34

Applies when:1. A party reasonably and foreseeably relied to his *detriment* on the promise of the other party;2. The promisor should have reasonably expected a change in position in reliance of the promise; **AND**3. Enforcement of the promise is necessary to avoid injustice.Priority: HIGH

Question 35

Settlement of Legal Claims

Answer 35

The voluntary relinquishment of some known right or privilege.\*Constitutes valid consideration.Priority: Medium

Question 36

What is the Common Law Pre-Existing Duty Rule?What are the exceptions?

Answer 36

Past performance or performance of a pre-existing duty is NOT adequate consideration.Exceptions:* If there is an ***addition or change*** in performance or promise;* ***Unforeseen circumstances*** – a fair and equitable modification is made due to unanticipated changed circumstance AND the contract is not yet fully performed by either party; **OR*** ***Third-party promise*** – the duty was owed to a third-person, not the promisor.Priority: HIGH

Question 37

Is consideration required for a modification to a UCC Art. 2 sale of goods contract?

Answer 37

NO, consideration is not required for contract modifications made in ***good faith***.BUT, the modification must be in writing if:* It falls within the Statute of Frauds; **OR*** The original contract states that modifications must be in writing.Priority: HIGH

Question 38

_Duress_Physical Compulsion vs. Economic Duress

Answer 38

**_Physical Compulsion_**: If a person *physically compels* a person to agree to contract, then the contract is void.**_Economic Duress_**: If a person makes an *improper threat* that induces a party (who has no reasonable alternative but to enter into the contract), then the contract is voidable.\*A mere threat to breach is generally insufficient)Priority: Medium

Question 39

Undue Influence occurs when?

Answer 39

There is:1. Unfair persuasion of a person,2. Who is either: * Under the domination of the person exercising the influence; **OR** * Justified in assuming that the person will not act in a manner inconsistent with his welfare because of his relationship between them (i.e. parent/child).Priority: Medium

Question 40

Mutual Mistake vs. Unilateral Mistake

Answer 40

**_Mutual Mistake_**: When (1) *both* parties are mistaken as to the basic assumption on which the contract is made, (2) the mistake is material to the contract, AND (3) the person asserting the mistake did not bear the risk of the mistake.**_Unilateral Mistake_**: A mistake by one party, that is *unknown* to the other party, concerning a basic assumption that has a material effect on the contract.Priority: Medium

Question 41

Fraudulent Misrepresentationvs.Non-Fraudulent Misrepresentation

Answer 41

**_Fraudulent_**: When one party *knowingly makes* a false representation of a fact AND the other party reasonably relies on the misrepresentation to their detriment.**_Non-Fraudulent_**: When there is a statement of _material fact_ by a party or agent that is false, inducing the contract, AND the other party reasonably relies on the misrepresentation to his detriment.Priority: Medium

Question 42

Procedural Unconscionabilityvs.Substantive Unconscionability

Answer 42

Unconscionability usually occurs if the contract/term is BOTH substantively and procedurally unconscionable.**_Procedural_**: When one party to the contract has a superior bargaining position over the other, and uses that power to their advantage.**_Substantive_**: When the contract contains terms that are obviously unfair and one-sided in favor of the person with the superior bargaining power.Priority: Medium

Question 43

Under the Statute of Frauds, which types of contracts require a signed writing to be valid?

Answer 43

1. Marriage contracts.2. Suretyships (unless the main purpose exception applies).3. Contracts that cannot be fully performed in 1 year.4. Contracts for the sale of real property (or creating an interest in real property).5. Promises to pay an estate’s debt from the personal funds of the Executor/Administrator.6. Contracts for the sale of goods for $500 or more.Priority: HIGH

Question 44

Contracts for the sale of goods for $500 or more MUST be in writing.What are the four exceptions to this rule?

Answer 44

1. Merchant’s Confirmatory Memorandum.2. Goods accepted or Paid for.3. Custom Made Goods.4. Admission during judicial proceeding.Priority: HIGH

Question 45

What satisfies the writing requirement under the Statute of Frauds?

Answer 45

The writing MUST:1. Be signed by the party to be charged;2. Identify the subject matter of the contract;3. Indicate that a contract has been made by the parties; **AND**4. State the essential terms with reasonable certainty.\*An agreement DOES NOT need to be in *_one_* writing, it may consist of several writings.Priority: HIGH

Question 46

What are Expectation Damages?When are they recoverable?

Answer 46

They arise _directly from the breach_, and are an attempt to put the non-breaching party in the same position it would have been in but for the breach.To recover, the damages must be:1. Caused by the defendant;2. Foreseeable;3. Certain; **AND**4. Unavoidable.Priority: HIGH

Question 47

What are Consequential Damages?When are they recoverable?

Answer 47

They arise _indirectly from the breach_, and are awarded because of the injured party’s special circumstances.To recover, the damages must be:1. ***Reasonably foreseeable*** at the time of contract formation;2. Arise from the plaintiff’s special circumstances that the ***defendant knew or had reason to know of***; **AND**3. ***Reasonably certain*** (not speculative).Priority: HIGH

Question 48

Under the UCC, what remedies does a seller have if a buyer breaches a contract for the sale of goods?

Answer 48

* Withhold delivery of the goods;* Cancel;* Recover cover damages;* Recover market damages;* Recover lost profits if the seller is a lost volume seller;* Stop delivery of the goods when he discovers buyer is insolvent;* Stop delivery of a truckload when buyer breaches; **OR*** Replevy identified goods.Priority: HIGH

Question 49

Cover Damagesvs.Market Damagesvs.Loss-in-Value Damages

Answer 49

**_Cover_**: Difference in price between the contact price and price of substitute goods.**_Market_**: Difference between the market price and contract price (used if buyer did not cover in good faith or at all).**_Loss-in-Value_**: Difference between the value as promised and the value of the non-conforming goods (used if buyer keeps the non-conforming goods).Priority: HIGH

Question 50

When will the Waste Doctrine apply?

Answer 50

IF:1. The contractor performs in good faith, but defects nevertheless exist; **AND**2. Remedying the defects greatly exceeds the value of the completed work.\*In this instance, the *decrease in value* becomes the proper measure of damages.Priority: HIGH

Question 51

When is Restitution awarded?

Answer 51

It is awarded to _prevent unjust enrichment_, and is available when one party confers a benefit to another party.Damages will be awarded based on the value of the benefit conferred.Priority: HIGH

Question 52

What is Rescission?

Answer 52

Recession treats the contract as ***canceled***.\*It is available if there was a problem with contract formation (defense to formation, fraud, misrepresentation).Priority: Medium

Question 53

When will a contract NOT be rescinded?

Answer 53

IF:* A valid equitable defense applies; **OR*** The plaintiff sued for damages under the contract in a prior action.Priority: Medium

Question 54

What is a Fee Simple Absolute?

Answer 54

A conveyance of absolute ownership of real property. The property is freely _devisable, descendible, and alienable._Priority: Medium

Question 55

What is a Fee Tail?

Answer 55

A conveyance of real property to a person _AND_ their heirs.\*Most states have abolished fee tail ownership.Priority: Medium

Question 56

What is a Fee Simple Defeasible, and when is it created?

Answer 56

A conveyance of property that has conditions placed on it.It is created when the grantor uses express conditional language to indicate that it will be ***terminated upon the occurrence/non-occurrence of an event or condition***.Priority: HIGH

Question 57

What are the three types of Fee Simple Defeasibles?

Answer 57

_Fee Simple Subject to a Condition Subsequent_ – reserves a future interest in the grantor (right of re-entry)._Fee Simple Determinable_ – reserves a future interest in the grantor (possibility of reverter)._Fee Simple Subject to Executory Interest_ – reserves a future interest in a third-party.Priority: HIGH

Question 58

What is a Life Estate?

Answer 58

A conveyance of real property where a specified life-tenant is entitled to possession of the property during their lifetime.Upon the life tenant’s death, the property transfers outright to another party (the remainderman).Priority: Medium

Question 59

Possibility of Reverter vs. Right of Re-entry

Answer 59

**_Possibility of Reverter_**: Creates a future interest of possession in the grantor if a specified condition occurs (property *automatically* vests to the grantor upon occurrence of the condition).**_Right of Re-entry_**: Creates a future interest in the grantor, wherein the grantor has *_the right_* to re-enter and take the property if a specified condition occurs.Priority: HIGH

Question 60

Vested Remainder vs. Contingent Remainder

Answer 60

**_Vested remainder_**: A future interest in land that is given to an identifiable person with NO conditions.**_Contingent remainder_**: A future interest in land that is conditioned upon the occurrence (or non- occurrence) of a specific event.\*In most jurisdictions, a future remainder interest is devisable and passes to that person’s heirs.Priority: HIGH

Question 61

What is Tenancy in Common?

Answer 61

The default estate created by a conveyance/bequest of real property to two or more people, _unless_:* There is express language stating that the parties have survivorship rights (joint tenancy); **OR*** If the conveyance stated “as husband and wife” (creating a tenancy by the entirety).\*Each tenant has an undivided interest and the right to use and enjoy the property.Priority: Medium

Question 62

What Four Unities must be present for a Joint Tenancy to be created?

Answer 62

1. The unity of time;2. The unity of title;3. The unity of interest; **AND**4. The unity of possession.There must be clear and express intent to create a joint tenancy.Priority: Medium

Question 63

Under what circumstances can an out-of-possession co-tenant collect rent from an in-possession co- tenant (who is in exclusive possession of the property)?

Answer 63

When:* There is an agreement stating as such; **OR*** The co-tenant seeking rent was wrongfully ousted.Priority: Medium

Question 64

When is a co-tenant entitled to reimbursement from other co-tenants for improvements made to the property?

Answer 64

ONLY IF there is a separate agreement stating as such.BUT, if the property appreciated due to the improvements, only the improving co-tenant is entitled to the increase in value.Priority: Medium

Question 65

A lease provides the tenant with a present possessory interest in the property, and gives the landlord a future interest.What are the three types of Leaseholds?

Answer 65

1. _Tenancy for Years_ – fixed period of time, automatically terminates;2. _Periodic Tenancy_ – initial period of time, then automatically continues for additional equal periods until terminated by proper notice.Created by: express agreement, implication, or by law.1. _Tenancy at Will_ – continues until either party terminates it, usually created by express agreement.Priority: HIGH

Question 66

What may a Landlord do if a Tenant remains on the property and *does not* pay rent?

Answer 66

* Initiate eviction proceedings; **OR*** Allow the tenant to remain on the property, and sue for damages.Priority: Medium

Question 67

What are the Landlord’s two options if a tenant holds over?

Answer 67

He may:* Evict the tenant; **OR*** Hold the tenant over (by holding the tenant over, an implied month-to-month tenancy is created).Priority: Medium

Question 68

What is the Warranty of Habitability?What can the Tenant do upon breach?

Answer 68

It’s implied in EVERY residential lease, and requires the Landlord to provide a place to live that is ***habitable*** (reasonably suitable for human needs).If breached, the Tenant may:* Move out and terminate the lease;* Withhold or reduce the rent;* Repair the issue and deduct the cost from the rent; OR* Remain on the premises and sue for damages.Priority: Medium

Question 69

When does Constructive Eviction occur?

Answer 69

When:1. The landlord breached a duty to the tenant;2. The landlord’s breach caused a loss of the substantial use and enjoyment of the premises;3. The tenant gave the landlord notice of the condition;4. The landlord failed to remedy it in a reasonable time after notice was given; **AND**5. The tenant vacated the premises.Priority: HIGH

Question 70

Does a Landlord have a duty to _mitigate_ his damages?

Answer 70

At common law, a landlord DID NOT have a duty to mitigate.BUT, now most states DO impose a duty to take reasonable steps to mitigate losses (i.e. attempting to lease to another tenant).\*Mitigation doesn’t need to be successful to recover damages, and a landlord is entitled to sue for the difference in rent between the new and original tenant.Priority: HIGH

Question 71

_Assignment of a Lease_When does an Assignment occur, and who is liable to the Landlord for rent thereafter?

Answer 71

It occurs when the assignor transfers ALL of his remaining interest in a lease to a third-party (the assignee).**Assignee** → liable to the landlord for rent and all other covenants that run with the land (privity of estate).**Assignor (Original Tenant)** → also remains liable for rent (privity of contract).Priority: HIGH

Question 72

_Assignment of a Lease_When a lease has a Silent Consent Clause, what two approaches have been adopted by state courts to determine how consent is given?

Answer 72

_Most States_, allow the landlord to withhold consent for ***any reason*** (even if unreasonable)._Some States_, require the landlord to have a ***reasonable basis*** for withholding consent.For example: Inability to fulfill lease terms, financial irresponsibility, instability, etc.Priority: Medium

Question 73

What is a Sublease?Is a Sublessee liable to the Landlord for rent?

Answer 73

A sublease occurs when a sublessor transfers only SOME of his remaining interest in a lease to a third-party.**Sublessee** → is NOT liable to the landlord for rent or other covenants (there is no privity of estate).* **Sublessor (original tenant)** → remains liable to landlord for rent (privity of contract).Priority: Medium

Question 74

_Termination of Leases_What is a Surrender?

Answer 74

An agreement between the landlord and the tenant to end a lease early.If accepted, the tenant’s duty to pay rent ends. If not accepted and the tenant leaves anyway, they are deemed to have abandoned the lease and are liable for damages.Priority: HIGH

Question 75

What is a Real Covenant?

Answer 75

A non-possessory interest in land that obligates the holder to either do something or refrain from doing something to the land.(The remedy is damages, unlike equitable servitudes)Priority: Medium

Question 76

What must be present to enforce the *benefit* of a Real Covenant?

Answer 76

There must be:1. A writing that satisfies the statute of frauds;2. Intent that the covenant runs with the land;3. Vertical privity between succeeding parties; **AND**4. The covenant must touch and concern the land.Priority: Medium

Question 77

What must be present to enforce the *burden* of a Real Covenant?

Answer 77

All of the requirements for enforcing the benefit PLUS:1. Horizontal privity between the original parties; **AND**2. The new owner must have notice of the covenant (actual, constructive, or inquiry notice).Priority: Medium

Question 78

What is an Equitable Servitude?

Answer 78

Covenants that equity will enforce if the burdened estate had notice of the covenants.(The remedy is injunctive relief, rather than damages)Priority: Medium

Question 79

What must be present to enforce the *benefit* of an Equitable Servitude?

Answer 79

There must be:1. A writing that satisfies the statue of frauds;2. Intent for the servitude to be enforceable; **AND**3. The servitude must touch and concern the land.Priority: Medium

Question 80

What must be present to enforce the *burden* of an Equitable Servitude?

Answer 80

All of the requirements for enforcing the benefit, PLUS:1. The new owner must have notice of the servitude (actual, constructive, or inquiry notice).Priority: Medium

Question 81

What is the Common Scheme or Plan Doctrine?

Answer 81

A court will imply reciprocal restrictive covenants on parcels of land in a subdivision sold by a developer if:1. The developer had a common scheme or plan that all parcels of land would be subject to at the time the subdivision was sold; **AND**2. The defendant land owner had actual, inquiry, or record notice of the restriction.Priority: Medium

Question 82

What is a Common Interest Community (CIC)?

Answer 82

A development or neighborhood in which individually owned lots are burdened by a servitude that imposes an obligation to:* Pay for or contribute to the maintenance held in common by the individual owners; **OR*** Pay dues or assessments to an association that provides services to the common areas or enforces the servitudes.\*CIC’s include Condo’s, Co-ops, and Home Owner Associations.Priority: Medium

Question 83

_Easements_Easement in Gross vs. Easement Appurtenant

Answer 83

**_Easement in Gross_**: Benefits a specific owner’s enjoyment, and DOES NOT attach to the land. Doesn’t pass to subsequent owners.**_Easement Appurtenant_**: Benefits ANY owner’s enjoyment, and DOES attach to the land. Passes to subsequent owners.Priority: HIGH

Question 84

_Easements_What is an Easement by Grant?

Answer 84

An ***express agreement*** by the grantor allowing the easement, which _must_:1. Be in writing signed by the grantor and satisfy the statute of frauds;2. Identify the land and parties involved; **AND**3. Indicate the grantor’s intent to convey the easement.Priority: HIGH

Question 85

_Easements_What is an Easement by Prescription?

Answer 85

It’s created when the possessor’s use of the land is:1. Open and notorious;2. Continuous;3. Hostile; **AND**4. For the statutory period.Priority: HIGH

Question 86

_Easements_What is an Easement by Implication?

Answer 86

It’s established when:1. A single tract of land is divided by a ***common owner***;2. A ***pre-existing use*** by the grantor is established prior to the land division;3. The use was ***continuous and apparent*** indicating it was intended to be permanent; **AND**4. Such use is ***reasonably necessary*** for the owner’s use.Priority: HIGH

Question 87

_Easements_What is an Easement by Necessity?

Answer 87

It’s created when:1. The original piece of land owned by the one owner is subdivided; **AND**2. Access is essential to the use of the property because no other ingress or egress is available.Priority: HIGH

Question 88

_Easements_What are the ways an Easement can be Terminated?

Answer 88

1. Estoppel;2. Termination of the necessity that created the easement;3. Involuntary destruction of the servient estate;4. Condemnation of the servient estate;5. Written release;6. Abandonment;7. Merger; **OR**8. By prescriptionPriority: HIGH

Question 89

What is a License?

Answer 89

It is a _privilege_ to use another’s land in a particular way.It doesn’t need to be in writing, and may be revoked at any time (although a licensor may be estopped from revoking it if the licensee invested money/labor in reasonable reliance).Priority: Medium

Question 90

What is a Fixture?(under the Common Law)

Answer 90

A fixture is:1. *Personal property*,2. That is *attached to land or a building*, **AND**3. Regarded as an *irremovable part of the real property*.\*A fixture is treated as real property, and passes with the ownership of the land (unless otherwise agreed).Priority: HIGH

Question 91

What factors are considered to determine if an item is a Fixture?

Answer 91

1. The nature of the item;2. The manner in which it’s attached;3. The damage that would result if removed; **AND**4. The extent to which the item is adapted to the property.\*Whether an item is a fixture is determined by the ***objective intent*** of the party who attached the item.Priority: HIGH

Question 92

What are the elements of Adverse Possession?

Answer 92

It allows someone who is in possession of land, owned by another, to acquire title when the possession of the property is:1. Continuous for the statutory period (i.e. 10 yrs);2. Open and notorious;3. Exclusive;4. Actual; **AND**5. Hostile and under a claim of right.\*An adverse possessor can only acquire title to the portion of the land he has met all the requirements on.Priority: HIGH

Question 93

What is Constructive Adverse Possession?

Answer 93

When a person takes possession of only a portion of the land covered *under color of title* → that possession extends to the *entire portion of the land* described in the title for adverse possession purposes.Priority: HIGH

Question 94

What are the elements of a valid Land Sale Contract?

Answer 94

The contract must:1. Be in writing;2. Describe the property;3. Identify the parties involved;4. Contain the purchase price; **AND**5. Be signed by the grantor/grantee (depending on who the contract will be enforced against).Priority: Medium

Question 95

What is Marketable Title?

Answer 95

A title that is FREE from any cloud or subject to any adverse claims.Title is _unmarketable_ when it contains a *substantial defect* (such as encumbrances, mortgages, liens, etc.).Priority: Medium

Question 96

What is the Equitable Conversion Doctrine?

Answer 96

It _splits ownership_ between the buyer and the seller. The buyer has *equitable title*, while the seller has *legal title* and holds the property in trust for the buyer.\*The buyer’s ownership is considered real property, while the seller’s is considered personal property.Priority: Medium

Question 97

What does a “time is of the essence” clause ensure?

Answer 97

It ensures that the buyer MUST perform on the closing date.If the buyer fails to perform, it will be deemed a material breach and the seller may keep the buyer’s down payment as liquidated damages.Priority: Medium

Question 98

When is Specific Performance appropriate?

Answer 98

When monetary damages will *_not_* fully remedy a party’s complaint.Real property is ALWAYS considered unique, and specific performance is ALWAYS an appropriate remedy.Priority: Medium

Question 99

What is a Home Builder’s Implied Warranty?

Answer 99

A warranty that protects a purchaser of a newly constructed home against latent defects, AND warrants that the building is safe and fit for human habitation at the time of sale.Priority: HIGH

Question 100

What are the requirements of a valid Deed?

Answer 100

A valid Deed must:1. Be in writing;2. Be signed by the grantor;3. Identify the grantor and grantee;4. Describe the property; **AND**5. Indicate the grantor’s present intent to convey the land.Priority: Medium

Question 101

What are the six covenants of a General Warranty Deed?

Answer 101

The three _present_ covenants are:1. Seisin;2. Right to convey;3. Against encumbrances.The three _future_ covenants are:1. Warranty;2. Quiet enjoyment;3. Further assurances.Priority: HIGH

Question 102

What is a Special Warranty Deed?

Answer 102

It ONLY warrants that the seller has not breached the covenants of title during his period of ownership (that the seller hasn’t previously conveyed the property and there are no encumbrances against the title).Priority: HIGH

Question 103

What is a Quitclaim Deed?

Answer 103

A deed that DOES NOT contain any covenants or promises to the buyer. It’s an “AS IS” deed leaving the buyer with NO rights to sue.Priority: HIGH

Question 104

What happens if a land transfer is NOT recorded?

Answer 104

It is considered a “wild” deed and *is effective* between the parties, but will NOT put subsequent purchasers on constructive notice because it’s outside the chain of title.Priority: HIGH

Question 105

What are the three types of Recording Statutes?

Answer 105

1. A _notice statute_ – a subsequent bona fide purchaser will prevail over prior grantee that failed to record.2. A _race statute_ – whomever records first prevails.3. A _race-notice statute_ – a subsequent bona fide purchaser is protected ONLY if he records before the prior grantee.Priority: Medium

Question 106

What is a Bona Fide Purchaser (BFP)?

Answer 106

A person who:1. Takes real property *without* notice of a prior conveyance;**AND**2. Pays valuable consideration.\*Receipt of land by gift or bequest *_does not_* constitute BFP status.\*Shelter rule: a person who purchases from a BFP receives the same status and rights as a BFP.Priority: HIGH

Question 107

Who must sign the deed?

Answer 107

The *grantor of the real property* MUST sign the deed, BUT they may designate an agent to sign on their behalf.If an entity is the grantor, then *authorized persons* must sign the deed on behalf of the entity.The grantee is NOT required to sign.Priority: Medium

Question 108

What is required for a valid Mortgage?

Answer 108

It must be:1. In writing;2. Signed by the party to be charged; **AND**3. Reasonably identify the parties and the land.Priority: Medium

Question 109

What is a Purchase Money Mortgage?

Answer 109

When the **seller is the lender** who secures the mortgage on the real property.The buyer of the property is the borrower.Priority: Medium

Question 110

Who does the holder of a Purchase Money Mortgage have priority over?

Answer 110

1. All claims and mortgages against the mortgagor prior to the purchase of the property;2. ALL subsequent claims and mortgages, *unless* defeated by a recording statute.Priority: Medium

Question 111

What is a Future Advance Mortgage?

Answer 111

A loan in which the lender may provide future payments under the original loan.The lender secures a mortgage on the real property for the entire amount of the loan, including future advances.Priority: HIGH

Question 112

What parties are involved in a Deed of Trust?

Answer 112

1. The borrower;2. The lender; **AND**3. A third-party trustee who holds title to the property until the loan is paid off.Priority: Medium

Question 113

Express vs. Implied Mortgage Assumption

Answer 113

**_Express Assumption_**: There is an express agreement for the grantee to take the real property and continue making payments to the lender.**_Implied Assumption_**: No express agreement exists; the grantee pays the seller only the equity in the home, and the grantee continues making payments to the lender for the balance.Priority: Medium

Question 114

What is a Variance?When may it be granted?

Answer 114

It is an exception to a zoning ordinance, and two types exist:1. Use variance;2. Area variance.It may be granted if: (1) the owner ***suffers a hardship*** because of the ordinance; AND (2) the variance would **NOT *damage or harm the public welfare***.Priority: Medium

Question 115

_Conflict of Laws_What is the situs rule for Real Property actions?

Answer 115

That the laws of the state where the real property is located will generally govern (i.e. cases involving the title or a contract for the sale of real property).\*States have a strong interest in actions that affect real property within their state.Priority: Medium

Question 116

What are the three Real Property conflict of laws tests?

Answer 116

1. _1st Restatement_ – **Situs rule** – the laws of the state where the real property is located will govern.2. _2nd Restatement_ – The state with the **Most Significant Relationship** to the property will govern. The situs state is *presumed* to have the most significant relationship.3. _Interest Analysis Test_ – **Situs rule** will apply UNLESS another state has a greater interest in having their law applied.\*Apply the test that has been adopted by the jurisdiction.Priority: Medium

Question 117

When Real Property is *incidental* to a contract, what tests are used to determine the applicable law?

Answer 117

Apply the conflict of laws principles for **Contracts**.Priority: Medium

Question 118

When is evidence Relevant?

Answer 118

1. When it has ***any tendency to make a fact more or*** ***less probable*** than it would be without the evidence;**AND**2. The fact is ***of consequence*** in determining the action.Priority: HIGH

Question 119

_Rule 403 Exclusions_A court may exclude evidence if its probative value is substantially outweighed by a danger of what?

Answer 119

* Unfair prejudice;* Confusing the issues;* Misleading the jury;* Undue delay;* Wasting time; **OR*** Being needlessly cumulative.Priority: HIGH

Question 120

When is evidence Unfairly Prejudicial?

Answer 120

When the evidence is:1. Unnecessary;**AND**2. Might cause the jury to improperly sympathize or dislike a party.Priority: HIGH

Question 121

When is evidence of Subsequent Remedial Measures **NOT** admissible?

Answer 121

To prove:* Negligence;* Culpable conduct;* A defect in product or design; **OR*** A need for a warning or instruction.\*But, it _may_ be admissible to impeach or prove a disputed issue of ownership, control, or feasibility of precautionary measures.Priority: HIGH

Question 122

When are Settlement Offers and statements made during Settlement Negotiations **NOT** admissible?

Answer 122

* To prove the validity or amount of a disputed claim (claim must be filed or threatened); **OR*** To impeach by a prior inconsistent statement or contradiction.\*It _may_ be admitted to: prove bias/prejudice of a witness, negate a contention of undue delay, or prove obstruction in a criminal matter.Priority: Medium

Question 123

What Pleas and Plea Negotiations are **NOT** admissible in a subsequent civil or criminal case?

Answer 123

1. Statements made during plea discussions.2. A nolo contendere plea.3. A defendant’s guilty plea that was later withdrawn.4. Statements made during a proceeding for (a) nolo contendere plea, or (b) later withdrawn guilty plea.Priority: Medium

Question 124

Evidence of paying or promising/offering to pay for medical expenses or bills is NOT admissible to prove what?

Answer 124

**Liability**(even if there is no disputed claim)\*However, any related statements or factual admissions ARE admissible.Priority: Medium

Question 125

Evidence of Liability Insurance is **NOT** admissible to prove what?

Answer 125

**Culpability**(that a person acted negligently or wrongfully)\*However, a court may admit it for another purpose (e.g. proving bias/prejudice of witness, agency, ownership, control, or motive).Priority: Medium

Question 126

Physical evidence may be Authenticated through what means?

Answer 126

* Witness testimony; **OR*** By evidence that shows it has been held in a substantially unbroken chain of custody.Priority: Medium

Question 127

Voice recordings may be Authenticated by whom?

Answer 127

By anyone who:1. Has heard the person speak (either firsthand or electronically);**AND**2. Identified the recorded person as the speaker.Priority: Medium

Question 128

What is the Best Evidence Rule?

Answer 128

The original writing, recording, or photograph is required to prove its content, _unless_:* It is a reliable duplicate;* All of the originals are lost or destroyed (not by the proponent acting in bad faith);* An original cannot be obtained by judicial process;* It was not produced after proper notice was given; **OR*** It is not closely related to a controlling issue.Priority: Medium

Question 129

_Character Evidence_Character evidence may be offered as circumstantial evidence to *prove propensity* (that a person acted in conformity with the character trait) in what limited circumstances?

Answer 129

1. Criminal cases – by defendant OR by prosecution if the defendant “opens the door”.2. Victim’s character (in non sex-offense cases) – to prove defendant’s innocence; prosecution may rebut.3. Homicide cases – by defendant to show self-defense, prosecution may offer evidence of victim’s character for peacefulness if defendant claims victim was aggressor.4. Sex offense cases – not admissible, unless exceptions apply.5. Civil cases – only if sex offense cases exception applies.Priority: HIGH

Question 130

_Character Evidence_What are the exceptions in Sex Offense Cases that allow character evidence (to prove a victim’s sexual behavior or predisposition) to be admissible?

Answer 130

1. **Civil cases**: If its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party. (Evidence of the victim’s reputation is admitted *only if* the victim placed it in controversy).2. **Criminal cases**: If offered to prove the defendant was not involved in the sex crime, to prove consent, if offered by the prosecution, OR if exclusion would violate the defendant’s Constitutional rights.Priority: HIGH

Question 131

_Character Evidence_How may character evidence be proven?

Answer 131

By **Reputation** or **Opinion** — In all instances.By **Specific Acts/Instances** — Only allowed: a) on Cross-Examination of a character witness; **OR** b) if “Character in Issue”.*Note: Special rules apply to evidence of a Victim’s Character in Sex-Offense cases.Priority: HIGH

Question 132

**Prior Bad Acts** may be admissible for NON-PROPENSITY purposes, such as?

Answer 132

Proving:* Motive;* Identity;* Absence of mistake or accident;* Intent;* A common plan or scheme;* Opportunity;* Preparation; **OR*** Knowledge.Priority: HIGH

Question 133

What must a proponent show in order to offer Prior Bad Acts as evidence?

Answer 133

1. That the prior act was committed by a preponderance of the evidence (vague references are insufficient);2. That its probative value substantially outweighs the danger of unfair prejudice; **AND**3. Proper notice (in criminal cases).Priority: HIGH

Question 134

When is evidence of a person’s Habit or an organization’s Routine Practice admissible?

Answer 134

To prove that on a particular occasion the party acted in accordance with the habit or routine practice.\*This may be admitted regardless of corroboration or eyewitnesses.Priority: HIGH

Question 135

Extrinsic Evidence of Prior Inconsistent Statements are **only** admissible to impeach, if it’s what?

Answer 135

1. Relevant to a material issue at trial (other than the witness’s credibility);**AND**2. A proper foundation is shown (witness is given a chance to explain/deny, and the adverse party is given a chance to examine the witness about it).\*BUT, the above limitation is NOT applicable to statements by a party opponent.Priority: Medium

Question 136

Evidence of prior convictions may be admissible to attack a witness’s character for truthfulness in which instances?

Answer 136

1. *Prior felony or misdemeanor* convictions involving *dishonesty* – a dishonest act or false statement.2. In Felonies that DO NOT involve dishonesty when: * The witness is *not* a criminal defendant (criminal/civil); * In a criminal case where the witness IS a defendant, BUT the probative value outweighs the prejudicial effect.\*A _felony_ is a crime punishable by death *or* imprisonment over 1-year.\*Evidence of a conviction is NOT admissible if it has been pardoned/annulled on a finding of innocence.Priority: HIGH

Question 137

In what circumstance may a witness’s credibility be attacked on cross-examination with specific instances of conduct (i.e. prior bad acts)?

Answer 137

**Only** when:The conduct is probative of the witness’s character for truthfulness or untruthfulness.\*\*BUT, _extrinsic evidence_ is NEVER admissible to attack/support such instances of a witness’s credibility.Priority: HIGH

Question 138

How can a witness’s Character for Truthfulness (credibility) be attacked or supported?

Answer 138

By:* **Reputation testimony** about the witness’s character for truthfulness or untruthfulness in the community; **OR*** **Opinion testimony** about the witness’s character.\*\*Evidence of truthful character is only admissible AFTER the witness’s character for truthfulness has been attacked.Priority: Medium

Question 139

May a witness’s ability to observe, remember, or relate facts accurately be attacked on impeachment?

Answer 139

**YES**, a witness may be impeached on these issues on:* **cross-examination**; OR* with **extrinsic evidence.**Priority: Medium

Question 140

How may a hearsay declarant’s credibility be impeached (when a hearsay statement has been admitted into evidence)?

Answer 140

By any evidence that would be admissible if the declarant had testified as a witness.\*A court may admit evidence of inconsistent statements/conduct *regardless* of when the statement occurred or if the declarant had the opportunity to explain or deny it.Priority: Medium

Question 141

When is Refreshing a Witness’s Recollection using a document permitted?

Answer 141

When:1. The witness once had a personal knowledge of the matter,2. But is unable to recall the matter when testifying.\*\*Only the opposing party may offer the document into evidence.Priority: HIGH

Question 142

When may a court take Judicial Notice?

Answer 142

When **indisputable facts** are either:* Commonly known in the community; **OR*** Readily capable of verification *and* cannot be reasonably questioned.Priority: Medium

Question 143

What is a Lay Witness?When is Lay Witness testimony admissible?

Answer 143

Any person who gives testimony in a case that is NOT called as an expert. Their testimony is admissible if they are *competent* to testify (competency is presumed under the FRE).They must take an oath to tell truth and only testify to matters of personal knowledge.Priority: HIGH

Question 144

When may a Lay Witness offer an opinion?

Answer 144

If it is:1. Rationally based on the witness’s perception;2. Helpful to clearly understand the testimony or to determine a fact in issue;**AND**3. Not based on scientific, technical, or other specialized knowledge.Priority: HIGH

Question 145

When is Expert Witness testimony permitted?

Answer 145

When the:1. Witness is ***qualified*** as an expert;2. Testimony is ***helpful*** to the trier of fact;3. Testimony is based on ***sufficient facts/data***;4. Testimony is based on ***reliable principles/methods***; **AND**5. Witness ***reasonably applied*** the principles/methods to the facts of the case.Priority: HIGH

Question 146

_Expert Testimony_What is reliability based on?

Answer 146

On the methodology’s:1. Testability;2. Publication & Peer Review;3. Error Rate;4. Standards & Controls; **AND**5. Whether it’s generally accepted in the field.Priority: HIGH

Question 147

What are the elements of Conspiracy?

Answer 147

1. An express or implied agreement between two or more people;2. Intent to enter into the agreement;3. Intent to pursue an unlawful objective; **AND**4. The commission of an overt act in furtherance of the unlawful objective.\*Co-conspirators are liable for *both* the conspiracy itself AND all foreseeable crimes committed by other conspirators in furtherance of the objective.Priority: Medium

Question 148

What are the elements of Solicitation?

Answer 148

A person is guilty if:1. He requests another person to commit a crime;2. With the specific intent that the crime be committed; **AND**3. The other person receives the request.Priority: Medium

Question 149

Who is an Accomplice?What are they liable for?

Answer 149

An accomplice is a person who:1. Aids, abets, or facilitates the commission of a crime; **AND**2. Has dual intent (intent to assist and intent the crime is committed).An accomplice is liable for ALL crimes he committed/assisted, AND all foreseeable crimes committed by the principal.Priority: Medium

Question 150

What limitations exist to Accomplice liability?

Answer 150

**_First_**: Merely being present while a crime is committed will NOT create liability.**_Second_**: A person cannot be convicted if they are a member of the class of persons protected by the criminal statute OR the crime inherently involves several types of participants and the person is not criminally liable under the statute.**_Third_**: A minority of jurisdictions DO NOT allow accomplice liability for involuntary manslaughter.Priority: Medium

Question 151

When is Withdrawal a valid defense to Accomplice Liability?How is it accomplished?

Answer 151

It is valid ONLY if the accomplice withdraws involvement before the crime becomes unstoppable.It can be accomplished by either:* Repudiating the encouragement given; **OR*** Neutralizing the assistance.Priority: Medium

Question 152

When does the defense of Duress excuse a defendant’s conduct?

Answer 152

If the conduct was the result of:1. A threat of imminent death or serious bodily injury,2. To the defendant or another, **AND**3. The defendant reasonably believed he was unable to avoid the harm by non-criminal conduct.Priority: Medium

Question 153

What are the four Insanity tests?

Answer 153

1. The M’Naghten test.2. The Model Penal Code test.3. The Irresistible Impulse test.4. The Durham test.\*A defendant will be acquitted if he meets the applicable insanity test of his jurisdiction.Priority: HIGH

Question 154

_Insanity_What is the *M’Naghten* Test?

Answer 154

1. A **mental disease or defect**; **AND**2. That resulted in being:* Unable to know the *wrongfulness of the conduct*; OR* Unable to understand the *nature and quality of the acts*.Priority: HIGH

Question 155

_Insanity_What is the Model Penal Code Test?

Answer 155

As a result of a mental disease or defect, the defendant was:* Unable to appreciate the criminality of the conduct; **OR*** Unable to conform his actions to the law.Priority: HIGH

Question 156

_Insanity_What is the Irresistible Impulse Test?

Answer 156

Defendant’s mental illness made him:* Unable to control his actions; **OR*** Unable to conform his actions to the law.Priority: HIGH

Question 157

_Insanity_What is the *Durham* Test?

Answer 157

Defendant must show that his unlawful conduct was the ***product of mental illness***.Priority: HIGH

Question 158

The 11^th Amendment prohibits a party from suing a state or state agency in federal court.What are the exceptions to this?

Answer 158

* The state explicitly consents to waive its 11^th Amendment protections;* The suit pertains to federal laws adopted under Section 5 of the 14^th Amendment;* The suit seeks only injunctive relief against a state official for conduct in violation of the constitution or federal law; **OR*** The suit seeks money damages from a state official.Priority: HIGH

Question 159

When does a party have Standing to sue?

Answer 159

It exists when the plaintiff:1. Personally suffered an injury in fact;2. The injury was caused by the defendant; **AND**3. The injury is redressable by a court order.Priority: Medium

Question 160

Third-Party Standingvs.Organizational Standing

Answer 160

**_Third-party_**: NOT permitted, but exceptions are made when there is a close relationship between the plaintiff and 3^rd party – if it would be difficult for the 3^rd party to assert their rights or if the 3^rd party is an organization.**_Organizational_**: An organization has standing to sue on behalf of their members if (1) the suit is related to an issue that is germane to the organization’s purpose, (2) the members would have standing to sue, and (3) the member’s participation is not necessary.Priority: Medium

Question 161

What does Ripeness refer to?

Answer 161

Whether a case is ready to be litigated.A case is ripe for review when there is actual harm or an immediate threat of harm to the plaintiff.Priority: Medium

Question 162

What does Mootness refer to?

Answer 162

To instances when the dispute has ended or was resolved before review.A court may hear a case that has ended/resolved when:* The wrong alleged is capable of being repeated and escaping review;* The defendant voluntarily stops an offending practice but can resume it any time; OR* In a class action.Priority: Medium

Question 163

What powers does the President have?

Answer 163

1. Faithfully execute the law;2. Appoint ambassadors, public ministers, consuls, supreme/federal court judges, and other officers;3. Appoint inferior officers (when the power is given to him by Congress);4. Remove cabinet level appointees;5. Enter into executive agreements w/o senate approval;6. Pardon federal crimes; AND7. Control troops as Commander in Chief.Priority: Medium

Question 164

When is a defendant liable for Trespass to Land?

Answer 164

1. When he *intentionally*,2. Either:* Enters the land in possession of another;* Causes an object/third-person to enter;* Remains on the land; OR* Fails to remove an object he is under a duty to remove.\*Intent to trespass is NOT required.Priority: Medium

Question 165

When is a person liable for Trespass to Chattels?

Answer 165

When he:1. Intentionally interferes with another’s personal property,**AND**2. The amount of damage is small.Priority: Medium

Question 166

When is a person liable for Conversion?

Answer 166

When he:1. ***Intentionally interferes*** with another’s personal property,**AND**2. The amount of ***interference is substantial***.\*Defendant will be liable for full market value of item.Priority: Medium

Question 167

_Defamation_What are the elements of Defamation?

Answer 167

1. A false defamatory statement,2. Of and concerning the plaintiff made by the defendant,3. Publication by a defendant to a third party, AND4. DamagesPriority: Medium

Question 168

_Defamation_What are the four Slander Per Se categories?

Answer 168

1. Impugning the business integrity of the plaintiff.2. A statement of unchastity about an unmarried woman.3. A statement that the plaintiff had/has a loathsome disease.4. Attributing a crime of moral turpitude to the plaintiff.Priority: Medium

Question 169

_Defamation_Who is deemed a Public Figure?What heightened standard applies if plaintiff is a Public Figure or Public Official?

Answer 169

**_Public Figure_** = Either (a) injected himself into a public controversy; OR (b) having achieved widespread notoriety.If person is a Public Figure or Official, then a heightened defamation standard applies.**_P must also prove_****: Actual malice** – D spoke with recklessness or knowledge of falsity.Priority: Medium

Question 170

_Defamation_If plaintiff is a Private Figure on a Matter of Public Concern, what standard applies?

Answer 170

Plaintiff MUST ALSO PROVE:That the ***speaker was*** ***negligent***.Priority: Medium

Question 171

What are the Invasion of Privacy torts?

Answer 171

1. Misappropriation of Name or Picture.2. False Light.3. Intrusion of Privacy.4. Public Disclosure of Private Facts.Priority: Medium

Question 172

What are the elements of Misappropriation of Name or Picture?

Answer 172

When defendant:1. Uses plaintiff’s name or likeness,2. For defendant’s commercial advantage.\*Newsworthiness is a defense.Priority: Medium

Question 173

What are the elements of False Light?

Answer 173

When defendant:1. Causes widespread dissemination,2. Of plaintiff’s beliefs, thoughts, or actions,3. In a false light,4. That would be highly objectionable to a reasonable person.\*If a matter of public concern or public figure → must show *actual malice*.Priority: Medium

Question 174

What are the elements of Intrusion of Privacy?

Answer 174

When:1. D intrudes into the private affairs of P;2. P has a reasonable expectation of privacy; **AND**3. The intrusion is highly objectionable to a reasonable person.Priority: Medium

Question 175

What are the elements of Public Disclosure of Private Facts?

Answer 175

When defendant:1. Caused widespread dissemination,2. Of truthful private information,3. That would be highly objectionable to a reasonable person.\*Newsworthiness is a defense *unless* actual malice is present.Priority: Medium

Question 176

What are the elements of Intentional Interference with Business Relations?

Answer 176

1. There was a contract or business expectancy;2. The defendant knows of the contract/expectancy;3. The defendant intentionally induces another party to breach or terminate the contract/relationship;4. A breach occurs; **AND**5. Plaintiff suffered damages.Priority: Medium

Question 177

What are the elements for Intentional Misrepresentation?

Answer 177

Plaintiff must show:1. Misrepresentation of material facts by the defendant;2. The defendant knew the statement was false;3. Intent of the defendant to induce the plaintiff;4. Actual and reasonable reliance by the plaintiff; **AND**5. Damages.Priority: Medium

Question 178

What are the elements for Negligent Misrepresentation?

Answer 178

Plaintiff must show:1. A misrepresentation by the defendant;2. Supplied for the guidance of others in a business transaction;3. The defendant knew that the information was supplied to guide the plaintiff in his business transactions;4. The defendant was negligent in obtaining/communicating the false information;5. Actual and reasonable reliance by the plaintiff; **AND**6. The false info proximately caused damages.Priority: Medium

Question 179

Public Nuisance vs. Private Nuisance

Answer 179

**_Public Nuisance_**: (1) an unreasonable interference, (2) with the health, safety, or property rights, (3) of the community.To recover the injured party must show ACTUAL damages.**_Private Nuisance_**: (1) a substantial and unreasonable interference, (2) with a person’s use/enjoyment of her property.Priority: Medium