July 2015 CA essay

hyc9598
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Re: July 2015 CA essay

Postby hyc9598 » Mon Mar 23, 2015 3:05 pm

Intervenors as of right must demonstrate that the interests they claim may, as a practical matter, be impaired or impeded by the disposition of the pending action.

Intervention as of right requires the intervenor to demonstrate an interest “relating to the property or transaction that is the subject of the action.”

Intervention as of right will be denied if existing parties to the litigation will represent adequately the absent party’s interests.

An individual hoping to intervene permissively must show a question of law or fact in common with the main action.

hyc9598
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Re: July 2015 CA essay

Postby hyc9598 » Mon Mar 23, 2015 4:33 pm

The U.S. Supreme Court has held that striking potential jurors on the basis of “the assumption that they hold particular views simply because of their gender” is an unconstitutional use of peremptory challenges.

Earlier, the Court had ruled that race-based assumptions of a prospective juror’s views are unconstitutional as well.

Courts have extended this line of cases to apply not just to strikes by government actors, but to those by private actors as well.

What the law requires is a “neutral explanation” for the strike, one that is not grounded in an “assumption” or an “intuitive judgment.”

hyc9598
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Re: July 2015 CA essay

Postby hyc9598 » Mon Mar 23, 2015 6:21 pm

Summary judgment practice requires the non-moving party to come forward with at least one sworn averment of fact essential to that party’s claims or defenses. Nonmoving party does not need to contest all material facts. Summary judgment motions may be filed “at any time until 30 days after the close of all discovery.” Where the briefing record does not justify a grant of complete summary judgment, the court is entitled to “enter an order stating any material fact— including an item of damages or other relief— that is not genuinely in dispute and treating the fact as established in the case.”

hyc9598
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Re: July 2015 CA essay

Postby hyc9598 » Mon Mar 23, 2015 7:02 pm

Sanctions under Rule 11 may be awarded on the court’s own initiative and without motion from a party. Rule 11 sanctions are expressly not available to discovery requests. Sanctions under Rule 11 are to be imposed against a law firm for violations committed by its associates, absent exceptional circumstances. Rule 11 sanctions may be imposed against pro se litigants.

hyc9598
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Re: July 2015 CA essay

Postby hyc9598 » Mon Mar 23, 2015 10:53 pm

Federal practice requires that a verdict be returned by a jury of at least 6 members, unless the parties stipulate otherwise. The requirement of jury unanimity can also be excused by stipulation of the parties. Federal practice requires that all non-excused jurors participate in the verdict.

hyc9598
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Re: July 2015 CA essay

Postby hyc9598 » Mon Mar 23, 2015 11:37 pm

Motions for judgment as a matter of law may be made only after the non-moving party has been fully heard on an issue during the jury trial. Motions for judgment as a matter of law may be made orally, as well as in writing, so long as the motion is made on the record. Motions for judgment as a matter of law are not premature if made prior to the close of all of the evidence, so long as they are made after the non-moving party has been fully heard on an issue.

hyc9598
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Re: July 2015 CA essay

Postby hyc9598 » Tue Mar 24, 2015 12:48 am

The time for taking an appeal runs not from the date of the jury’s verdict, but from the date of entry of judgment upon that verdict. A timely (28 days) motion for new trial suspends the running of the time for taking an appeal in federal civil cases. The time for taking the appeal is not suspended merely for 30 days, but rather is suspended until the court enters its order resolving the now-pending new trial motion (after a party files a timely new trial motion, the time to file an appeal runs for all parties from the entry of the order disposing of that motion).

hyc9598
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Re: July 2015 CA essay

Postby hyc9598 » Tue Mar 24, 2015 10:59 am

July 2002 released question and answer A.

QUESTION 1
Theresa and Henry were married and had one child, Craig. In
1990, Theresa executed a valid will leaving Henry all of her
property except for a favorite painting, which she left to her
sister, Sis. Theresa believed the painting was worth less than
$500.
On February 14, 1992, Theresa typed, dated, and signed a note,
stating that Henry was to get the painting instead of Sis.
Theresa never showed the note to anyone.
In 1994, Theresa hand-wrote a codicil to her will, stating: AThe
note I typed, signed, and dated on 2/14/92 is to become a part
of my will.@ The codicil was properly signed and witnessed.
In 1995, Theresa=s and Henry=s second child, Molly, was born.
Shortly thereafter, Henry, unable to cope any longer with
fatherhood, left and joined a nearby commune. Henry and
Theresa never divorced.
In 1999, Theresa fell in love with Larry and, with her separate
property, purchased a $200,000 term life insurance policy on
her own life and named Larry as the sole beneficiary.
In 2000, Theresa died. She was survived by Henry, Craig,
Molly, Sis, and Larry.
At the time of her death, Theresa=s half of the community
property was worth $50,000, and the painting was her
separate property. When appraised, the painting turned out to
be worth $1 million.
What rights, if any, do Henry, Craig, Molly, Sis, and Larry have
to:
1. Theresa’s half of the community property? Discuss.
2. The life insurance proceeds? Discuss.
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3. The painting? Discuss.
Answer according to California law.
ANSWER A TO ESSAY QUESTION 1
Theresa’s half of the Community Property
The parties’ rights to Theresa’s (T) one-half of the community property (CP)
depends upon the validity of her will and upon CP legal principles.
California is a CP State. All property acquired during marriage is presumed CP.
All property acquired before married is presumed separate property (SP). Also,
property acquired after permanent physical separation is presumed SP. In
addition, property acquired any time through gift, devise, or descent is presumed
SP.
In order to characterize assets, courts allow tracing to the source of funds used
to acquire the asset. Generally, a mere change in form will not alter the
characterization of an asset.

At death, a testator has testamentary power to dispose of one-half of her CP and
all of her SP.

Here, T had the power to dispose of her ½ of the CP.
Validity of T’s 1990 Will
In 1990, T executed a valid will. Thus, it is presumed that the will was properly
signed and attested by two witnesses.
T left “all of her property” except the painting to Harry (H). Thus, H is the
beneficiary of T’s ½ of the CP.
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A will can be revoked by a subsequent express written instrument or by an
inconsistency.
Here, T wrote a note in 1992 and a hand-written codicil in 1994.
Both of these documents relate to the painting and not T’s CP.
It does not appear that either document expressly revoked the 1990 will. Also,
there are no facts indicating that the 1990 will was revoked by physical act.
As a result, H would offer the 1990 will into probate and argue he is entitled to all
of T’s ½ of CP valued at $50,000.
Molly’s Rights as Pretermitted Heir
Molly may argue she was omitted from T’s will because she was not born yet.
Thus, Molly may argue she is entitled to share of T’s CP.
A pretermitted child is one born or adopted after a will was executed. The
omitted child is entitled to an intestate share unless the omission was intentional;
the child was provided for outside the will or the property was left to a parent
when another child was alive at the time of the execution.

Here, Molly was born in 1995, which is after the 1990 will was executed.
However, all of the property was given to H. Furthermore, Craig, another child,
was alive when the 1990 will was executed. As such, Molly would be unable to
recover under this exception.
Also, Molly would only by entitled to her interstate share. Under California law,
when a person dies without a will allows their CP goes to a surviving spouse.

Here, even if T died without a valid will, H would take all of the property under
intestacy laws. Molly would only be entitled to a portion of T’s SP.
Thus, Molly has no right to T’s CP.
Craig’s Rights to T’s CP
Craig is not a pretermitted child because he was alive at the time the 1990 will
was executed. Also, similarly to Molly, Craig would have no right to T’s CP under
intestacy laws.
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Sis and Larry’s Rights to T’s CP
Sis is T’s sister. The intestate laws do not allow a sibling to take the testator’s
CP when the surviving spouse with rights to that CP is still alive.
T did not devise
any of her CP to Sis. As such, Sis has no rights in T’s CP.
Larry appears to have been someone T fell in love with after H left. T never
devised any of her CP to Larry. Larry has no rights in T’s CP.
H will take T’s CP worth $50,000.
T’s Life Insurance Proceeds
Ordinarily under CP principles, proceeds from a whole life insurance are CP to
the extent they were acquired during marriage. The time rule is applied to
determine the CP interest. Proceeds from a term life insurance policy are
generally the type of the last premium paid.

H may argue in 1999 when T bought the life insurance policy they were still
married and therefore the $200,000 is CP. If so, Larry as the named beneficiary
would only be entitled to $100,000 as T has power to dispose of her ½ interest.
Larry would argue T and H’s marriage had ended. A community ends with a
physical separation with the intent not to resume.
Larry will argue H left and
joined a commune. Larry would assert this shows H’s intent to end the marriage.
Larry will also argue and CP presumptions will be rebutted by tracing the source
of the life insurance proceeds. T bought the life insurance with her own SP.
Therefore, Larry will successfully argue even if T was still married and her
economic community had not yet ended, she used her SP to acquire the policy.
Since T used SP to buy the policy, the $200,000 proceeds would be SP as well.
A mere change in form does not alter the characterizations of property. Thus,
Larry would argue as the sole beneficiary he should take all the proceeds since T
has the power to dispose of all her SP.
Craig and Molly’s Rights to the Life Insurance Proceeds
The children may attempt to argue they have a right to a portion of the $200,000.
However, they will not succeed. They were both alive when T made this “will
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substitute” and T had the power to give the proceeds all to Larry and none to
them.
Sis also has no claim to the proceeds.
Thus, Larry is entitled to all of the life insurance proceeds valued at $200,000.
The Painting
T’s 1990 Will
In her 1990 will, T devised the painting she thought was worth $50,000 to Sis.
Therefore, under the 1990 will, Sis is entitled to the painting.
The Effect of the 1992 Note
A codicil is an instrument made after the execution of a will that disposes
property. A codicil must be executed with the formalities of a will.

Formal Attested Codicil
In order for typewritten codicil to be given effect it must be signed by the testator.
Also, the testator must sign or acknowledge her signature or will in front of two
witnesses. Those two witnesses must sign the will with the understanding that it
is a will.

Here, T did type, date and sign a note in 1992. This note purported to change
her 1990 will so that H got the painting and not Sis.
However, T never showed the note to anyone. That implies she never had two
witnesses sign the note. Also, she never acknowledged her signature or will to
two witnesses. Therefore, it was not properly attested to. As a result, the codicil
will not be given effect.
Holographic Codicil
A holographic codicil is valid when all material provisions are in the testator’s
handwriting and she signs it.

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Here, the note was typed and so it was not handwritten. Thus, it will not be given
effect.
Revocations by Express Subsequent Codicil
A will can be revoked by a codicil. However, the codicil must be valid and meet
the formalities of a will in order to be given effect as a revocation.

Here, as shown above the codicil was not executed by proper formalities. Thus,
it did not revoke the 1990 will.
By itself, the 1992 note has no effect on the 1990 will. Thus, Sis would still be
the beneficiary.
Effect of the 1994 Codicil
The codicil written in 1994 was handwritten. It was also properly signed and
witnessed. It appears T was attempting to validate her 1992 not by stating “the
note I typed on 2/14/92 is to become a part of my will.”
Incorporation by Reference
A document can be incorporated by reference. It must have been in existence at
the time of the will execution, sufficiently described in the will and reasonably
been the document the will was referring to.

Here, the note was in existence at the time the codicil was written. The codicil
was written in 1994 as is attempting to incorporate the 1992 note. The codicil did
sufficiently describe the note by stating “The note I typed, dated and signed on
2/14/92.” The description accurately gives the date the note was made.
H would offer the note and argue it sufficiently was described. Also, H will argue
the note is the document the codicil was referring to.
As such, a court may find that the prior defective note has now been republished
and reexecuted by this 1994 codicil that was handwritten and signed. Even
though a holographic codicil does not require attested witness, the fact that it
was properly witnessed should not preclude the court from finding it a valid
holographic codicil.
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Therefore, it is very likely H will prevail and will take the painting over Sis.
Craig and Molly’s Rights to the Painting
The children may argue since T was significantly mistaken about the painting
value, the gift to either Sis or H is invalid.
The children will attempt to argue if T knew the painting was worth $1 million she
would have not given it to Sis. Rather she would have left it to them.
A court will not likely agree with this argument. Existing evidence of a mistake is
generally allowed if it is reasonably susceptible with the will.
Here, it is not reasonable to assume T would have given it to Craig and Molly.
She may have left it to H as she did not in the codicils.
Therefore, the children likely have no right to the painting.
They may argue H’s rights were revoked by operation of law.
A gift to a spouse is revoked upon divorce.
Here, T and H never divorced. As such, H likely takes the painting because a legal separation may not be enough to invoke revocation by law.

s1m4
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Re: July 2015 CA essay

Postby s1m4 » Tue Mar 24, 2015 4:31 pm

I. SEARCH & SEIZURE
A. Essay Start
1. 4th A. protects citizens against unreasonable searches and seizures. The 4th A. is applicable to the states via the 14th A. In order for the defendant to assert his 4th A. right, he must show both, government conduct and a reasonable expectation of privacy.
i. Who searched? Why are they gov conduct?
B. S & S Analysis:
1. FIRST: Is there governmental conduct?
a. Essay: In order to establish government conduct, the defendant must show that the police or gov were somehow involved in the search and/or seizure.
b. Defined as:
i. The publicly paid police, on or off duty, or
ii. Any private individual acting at the direction of the public police
o Ex: cops ask your roommate to search your stuff for drugs.
o BUT…privately paid police actions do NOT constitute governmental conduct unless deputized with the power to arrest you.
• Ex of privately paid police: store security guards; subdivision police; campus police
• EXAM: Unless specifically told a private cop is deputized, assume they are not.
2. SECOND: Is there a reasonable expectation of privacy? = STANDING
a. Essay: In order to establish a reasonable expectation of privacy, the D must show that he had a ownership or possessory interest in the place searched or things seized.
i. What was searched? Did he own or possess it?
ii. If yes…
o Thus, the D has standing to assert a 4th A. challenge > go to warrant requirement.
iii. If no…
o The D has no standing to assert a 4th A. challenge [analysis ends]
b. Automatic Category of Standing (always have standing to object to search):
i. If you own the premises searched.
o You always have standing to object to the search of your own place.
ii. If you live on the premises searched (whether you have ownership interest or not)
o Ex: even a grandchild living at a grandparent’s home can object.
iii. Overnight guests, in the place they are staying.
o Have standing to object to the legality of the search of the place they are staying
o Must be invited overnight guests.
c. Two situations that are sometimes categories for standing
i. You own the property seized.
o If you own the property seized > you have standing to object to the search only if you have a reasonable expectation of privacy in the item or area searched.
• Ex: Homer doesn’t have a reasonable expectation of privacy in Marge’s purse, who owns the purse, or in the item of drugs itself, or the area the search (in this case, Marge’s purse).
ii. You are passenger in a car.
o If you own the car or the property in the car > you have a reasonable expectation of privacy re the items or area searched (above rule).
o BUT, passengers in cars who do not claim they own the car and who do not claim to own the property taken out of the car DO NOT have standing to object to the search of that car just because they were legitimately present when the search took place.
d. NO Standing categories
i. You have NO expectation of privacy, and therefore no standing, for anything that you hold out to the public everyday.
o Examples: things held out to the public, the seizure of which implicates no right of privacy.
• Sound of your voice
• Style of handwriting
• Paint on outside of car
• Account records held by bank
• Monitoring the location of your car on a public street or in your driveway (GPS)
• Anything that can be seen across the “open fields”
• Anything that can be seen from flying over in the public air space
• Odors emanating from your luggage or your car
• Garbage set out on the curb for collection
 No expectation of privacy, and therefore no standing, for things you hold out to the public, such as garbage set out on the curb for collection.
ii. However, police cannot use technology that is not available to the public w/o a warrant b/c that would go beyond what you hold out to the public everyday.
3. THIRD: Did the police have a valid search warrant?
a. Essay: In order for a S or S to be valid, the gov must have acted pursuant to a valid warrant. A valid warrant requires that it be with probable cause and stated with specificity and particularity, issued by a neutral and detached magistrate.
i. Usually, one of these elements will be insufficient. So…
ii. Good faith exception? [If no > go to Step 5. If yes > below…]
b. Requirements for facially valid search warrant: 2 Ps
i. (1) Probable cause
o A fair probability that contraband or evidence of a crime will be found in the area searched
• Police can rely on hearsay for the issuance of warrants
ii. (2) Particularity / Specificity
o Warrant must state with particularity the place to be searched and the things to be seized.
• If you want to search the garage, you must state so specifically in the warrant.
iii. *Informants and warrants:

s1m4
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Re: July 2015 CA essay

Postby s1m4 » Tue Mar 24, 2015 4:31 pm

I. 3 FORMS OF CONCURRENT OWNERSHIP
A. Tenancy in Common
1. Defined: 2 or more people own with no right of survivorship (ROS).
2. Creation: the presumption favors the tenancy in common.
i. It’s the default, trashcan form of ownership. It’s created automatically when in doubt or when silent.
3. Characteristics:
a. Each tenant owns an individual part, and each has a right to possess the whole, regardless of percentage of ownership (which only affects finances)
i. (If one excludes the other – wrongful ouster and must pay rent to ousted tenant)
b. Each interest is alienable, devisable, and descendible.
i. =There is no ROS.
c. Encumbrances: each tenant can only encumber their own interest in the commonly held property, not the entire thing. And a creditor can only foreclose on that tenant’s interest.
4. Termination:
a. Sale, voluntary agreement, partition in kind, partition by forced sale, etc.
B. Joint Tenancy (with right of survivorship)
1. Defined: 2 or more owners with a ROS.
2. Characteristics:
a. Right of survivorship—when one JT dies, his share goes automatically to the surviving JTs.
b. Can freely sell and encumber your JT share.
3. Creation:
a. The 4 Unities: T-TIP
i. Time – JTs must acquire their interests at the same time
ii. Title – JTs must acquire their interests by the same title/document
iii. Interest – JTs must have identical/equal shares
iv. Possession – JTs must have the right to possess the whole
b. Grantor must CLEARLY express the right of survivorship in the instrument.
c. Use of a straw:
i. Ex: Dave holds Blackacre in FSA. He wishes to hold it as a JT with Paul. How can he do this? To satisfy the 4 unities, Dave must use a straw-middleman…
o Step 1: Dave conveys to the straw
o Step 2: The straw conveys back to Dave and Paul, as JTs, w/ a ROS.
o Now all 4 unities are present, including time and title.
d. Q: why so hard to create? JT’s are disfavored b/c they allow the parties to avoid the system via the ROS.
4. Destroying/Terminating a Joint Tenancy: SPAM (sale, partition, and mortgage)
a. Sale
i. A JT can sell his share in the JT to someone else during his lifetime.
o A JT’s interest is alienable—he can sell or transfer his interest during his lifetime.
• BUT, the JT is not devisable or descendible b/c of the ROS > when one JT dies, it goes automatically to the other JTs > there’s nothing to will!
o He can do so secretly, without the other JT’s knowledge or consent.
o This sale will sever the JT as to the seller’s interest b/c it disrupts the 4 unities.
• If there was only one other original JT > he becomes a Tenant in Common w/ the buyer. (severs the entire JT)
• If there was more than 2 JTs originally > then the non-transferring JTs remain JTs as between each other. (severs only his share)
• The buyer becomes a TIC w/ the remaining owners.
o Ex: P, R, and M are JTs. Each has a 1/3 share. P sells her interest to C. P’s act severs the JT as to her interest. R and M still hold as JTs, and C holds his 1/3 as their TIC. Later, R dies, leaving behind his heir, H. M takes R’s share. Thus, M now holds 2/3 with C, who holds 1/3. They are now TICs with each other. H takes nothing.
ii. In equity, a JT’s mere act of entering into a K for the sale of her share will sever the JT, as to the contracting party’s interest.
o This is due to the doctrine of Equitable Conversion: “equity regards as done that which ought to be done.”
o Ex: R, P, and J own as JTs. On Jan., R enters into a K for sale of his interest in the JT with G, with the closing to take place on April 1. The severance occurred on Jan. 1, under equitable conversion >> equity says that R’s share is gone on Jan. 1, even though closing happens later.
b. Partition—3 types
i. Partition by Voluntary Agreement: a peaceful way to end the relationship; the parties themselves choose to end the JT voluntarily; no court necessary.
ii. Partition in Kind: when a court physically divides the property.
o Best for rural, agricultural, or sprawling acreage—split it up equally!
iii. Partition by Forced Sale: when a court orders a sale of the property and divides the proceeds up equally amongst the JTs.
o Best when the property is a home, single commercial building > something that can’t be physically divided easily.
c. Mortgages/Encumbrances
i. Encumbrances: each tenant can only encumber their own interest in the commonly held property, not the entire thing. (See below re whether an encumbrance destroys a JT or not).
ii. Lien Theory (Majority)
o If a JT takes out a mortgage or a lien on his share >> NO severance!
• However, a foreclosure sale will sever the JT.
o Death: if one tenant in a JT encumbers their interest in a lien theory state (where there’s no severance), the ROS kicks in and destroys the encumbrance (mortgage)! The co-tenant will take title in FSA, free and clear of all encumbrances.
• So the mortgagee is wise to foreclose soon if there’s any risk of death.
iii. Title Theory (Minority)
o If a JT takes out a mortgage or a lien on his share >> severs the JT! (as to the now encumbered share only).
o Death isn’t an issue in this type of jurisdiction b/c the encumbrance will sever the JT before death.
C. Tenancy by the Entirety (21 states)
1. Defined: a form of ownership between married person, where a ROS is presumed when they acquire with T-TIP.
2. Creation: can only be between 2 married partners with a ROS.
a. In the states that recognize a tenancy by the entirety > a tenancy by the entirety arises presumptively in any conveyance to married parties, unless stated otherwise.
b. Need the 4 unities: T-TIP
3. Characteristics: a very protected form of co-ownership—“CAN’T TOUCH THIS”
a. Creditors of only one spouse can’t touch anything in this form of tenancy.
b. Unilateral conveyance: neither tenant, acting alone can defeat the ROS by unilateral transfer to a 3rd party.
i. Ex: if one party tries to secretly convey their interest to a 3rd party (unlike w/ a JT), the transfer is void.

II. RIGHTS AND DUTIES OF CO-TENANTS
A. Possession
1. Each co-tenant is entitled to possess the whole.
a. No matter their % interest in the property, they all get to possess 100% of it.
2. If one cotenant wrongfully excludes another cotenant from possession of the whole or any part, he has committed “wrongful ouster.”
a. And the ouster might owe the ousted cotenants rent for his possession of the property. (see below)
B. Profits & Losses
1. A cotenant that gains profits from his use of the land does not owe anything to the other cotenants.
2. If a cotenant incurs losses due to his use of the land, the other cotenants aren’t accountable to him or liable for those losses.
3. However…
C. Rent from 3rd parties
1. If a cotenant leases all or part of the premises to a 3rd party > then must account to his cotenants if they are not in possession of the property.
a. Must provide them their fair share of the rental income (based on their % interest).
D. Rent from co-tenant in exclusive possession
1. A cotenant in exclusive possession of the property is not liable to the others for rent (due to his use and possession of the property), unless he ousts the others (and then he is liable to them for rent).
a. Ex: if one voluntarily leaves for 12 months, while one possess, the one who left can’t demand rent from the ones who stayed if there was no ouster of the one who left.
E. Adverse Possession
1. One cotenant cannot acquire sole title to the property by adverse possession b/c the hostility element is missing.
a. BUT, if he outs the other cotenants from the property > then he can acquire sole and exclusive title to the property via adverse possession (provided that he meets all the elements).
2. *And IF adverse possession can be proven by the ousting cotenant or by a 3rd party >> this would deprive the other cotenants of their interest entirely!
F. Carrying Costs
1. Each cotenant is responsible for his fair share of the carrying costs (e.g., taxes and mortgage interest payments), based upon the undivided % share he holds.
G. Repairs
1. Repairing cotenant enjoys a “right of contribution” for reasonably necessary repairs, but only if he has told the other the need beforehand.
a. Each must contribute their % share.

hyc9598
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Re: July 2015 CA essay

Postby hyc9598 » Wed Mar 25, 2015 1:48 am

Entry of default bars delinquent party from contesting pleading's allegation except amount of damages.
If the value is not sum certain, default judgment can be entered by judge. Sum certain=incontestably fixed amount.
A party that appeared in litigation including settlement is entitled to receive 7 day advance notice of default judgment hearing.

hyc9598
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Re: July 2015 CA essay

Postby hyc9598 » Wed Mar 25, 2015 1:46 pm

Motion in limine is a motion to prevent the inadmissible evidence before trial. Interlocutory ruling is appealable after the final order. Evidentiary ruling may be appealed even if it is harmless error. A prevailing party cannot appeal if he gets all the relief but if he gets lowered recovery he can appeal.

A jury demand may be made by any party. Once one party files a demand, no other party need do so. The relevant timing is within the 14 days form the service of the last pertinent pleading, not from the filing of the complaint. To withdraw, all parties must agree.

Discovery scope is limited to claims and defenses in the case. 26(b)(1) allows the court to expand the scope to subject matter of the case for good cause.

hyc9598
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Re: July 2015 CA essay

Postby hyc9598 » Thu Mar 26, 2015 10:20 am

Action for monetary penalties is more like action at law. Some claims for money like restitution or incidental money claim to injunction do not trigger trial by jury.

hyc9598
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Re: July 2015 CA essay

Postby hyc9598 » Thu Mar 26, 2015 2:29 pm

Appellate court can overturn the verdict if no reasonable jury court have reached that conclusion (evidence is so one-sided). The courts are reluctant to determine based on witness credibility (on appeal). It is not a matter of counting witnesses. One is free to believe one person over many witnesses.

hyc9598
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Re: July 2015 CA essay

Postby hyc9598 » Thu Mar 26, 2015 3:50 pm

Although lifting default judgment is against the finality, it is freely made. Lifting entry of default requires good cause and lifting default judgment must meet 60(b). Lifting default judgment requires the consideration of willfulness, existence of valid defense, and prejudice.

hyc9598
Posts: 151
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Re: July 2015 CA essay

Postby hyc9598 » Thu Mar 26, 2015 4:08 pm

41(b) dismissal: failure to prosecute, comply with FRCP, or court order.
37(d): "meet and confer" required (for failure to written discovery request)
37(b): last resort ("meet and confer" not required, but must be based on violation of order compelling discovery)

hyc9598
Posts: 151
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Re: July 2015 CA essay

Postby hyc9598 » Sun Mar 29, 2015 4:42 pm

Feb 2004
Question 4
Lori owns a small shopping center. In April 1999, Lori leased a store to Tony. Under the
lease Tony agreed to pay Lori a monthly fixed rent of $500, plus a percentage of the gross
revenue from the store. The lease term was five years. In part the lease provides:
Landlord and Tenant agree for themselves and their successors and assigns:
* * *
4. Tenant has the right to renew this lease for an additional term of five
years, on the same terms, by giving Landlord written notice during the
last year of the lease.
5. Tenant will operate a gift and greeting-card store only. Landlord will
not allow any other gift or greeting-card store in the center.
* * *
In July 2000, Tony transferred his interest in the lease in writing to Ann. Ann continued to
operate the store and pay rent.
In February 2003, a drugstore in the shopping center put in a small rack of greeting cards.
Ann promptly complained, but Lori did nothing.
Beginning in March 2003, Ann stopped paying the percentage rent, but continued to pay
the fixed rent alone. Lori took no action except to send a letter in April 2003 requesting
payment of the percentage rent that was due.
In January 2004, Ann sent a letter to Lori requesting that Lori renew the lease according
to its terms. Lori denied that she had any obligation to renew.
1. Is Ann entitled to a renewal of the lease? Discuss.
2. Is Lori entitled to the past-due percentage rent from:
a. Ann? Discuss.
b. Tony? Discuss.
30
Answer A to Question 4
Ann’s Right to Renew the Lease
Statute of Frauds
The statute of frauds requires that a lease for possession of property for longer than one
year must be evidenced by a writing, signed by the party to be charged.
Here, the lease
was for a period of 5 years. So to be enforceable it must comply with the statute of frauds.
The facts imply that a written lease was drawn and the lease stated the amount of rent[,]
the lease term, a right to renew, and a restriction on landlord[‘]s lease to a competitor and
tenant[‘]s type of use. The Statute of Frauds has been met.
Sublease vs. Assignment
When a lessee purports to transfer less than its entire term, or entire rights and remedies
under a lease, the resultant transferee shall be considered a sublesee and the transfer
shall be considered a sublease.
In this case, the sublessee would not be considered a
successor or assignee of the original lessee and would not be in privity of contract with the
landlord. Thus, a sublessee may not enforce lessee’s rights under the original lease,
against the landlord. Conversely, a landlord may not enforce its right to collect rent from
a sublesee.
The facts indicate simply that “Tony transferred his interest in the lease in writing to Ann”.
Because this transfer was in writing, the Statute of Frauds is satisfied. Because it appears
that Tony’s entire interest in the lease was transferred to Ann, Ann’s is an assignee and
the transfer shall be considered as assignment.
Does the covenant for tenant’s right to renew the lease for an additional five years, on the
same terms, by giving landlord written notice during the last year of the lease run with the
land?
In order for Ann to be able to enforce her right to renew the lease, she will need to
establish that the covenant runs with the land. A covenant is said to run with the land when
four criteria are met:
1. The original parties intended that future takers be bound.
Here, the express terms of the lease state “landlord and tenant agree for themselves
and their successors and assigns”. This language clearly indicates that landlord and
tenant intended their successors to be bound.
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2. The successor must have knowledge of the covenant.
Ann has actual knowledge of the covenant as it is expressly stated in the original
lease and she is seeking to enforce the covenant.
3. There must be horizontal and vertical privity between the parties.
Ann is in horizontal and vertical privity of estate with landlord by virtue of the
assignment from Tony, thus, this criterion is met.
4. The covenant must “touch and concern” the land.
A covenant will be held to touch and concern the land if it burdens the land. Here,
a 5 year possessory interest in the demised premises, touches and concerns the land.
Because the covenant to renew the lease “runs with the land,” unless Ann is in
material breach of the lease, she will be entitled to enforce the covenant upon her
satisfaction of the “notice during the last year of the lease” requirement. Ann gave written
notice to Landlord (Lori), in January of 2004, the last year of the lease. She has met this
requirement & is entitled to renew the lease. (She may have waived the non-competition
covenant and the renewed lease may not include this covenant - see below.)
[Ïa.] Did Ann’s failure to pay the percentage rent constitute a material breach of the
lease, discharging Lori’s duties under the lease and permit Lori to collect the percentage
rent from Ann?
The facts indicate that begin[n]ing in March 2003, Ann stopped paying the
percentage rent. Lori took no action except to send a letter requesting payment of thepercentage rent. The covenant to pay percentage rent is enforceable against Ann by Lori
since this covenant “runs with the land” (supra). Ann will argue that Lori’s breach of the
restriction on leasing space to a competitor discharged her duty to pay percentage rent.
At common law, the duty to pay rent was held to be an “independent covenant” and was
not discharged by a breach of the landlord in regard to improvements on real property.
The modern trend is to find that the covenants under a lease for real property are mutually
dependant.
If Ann can prove that the landlord’s (Lori[‘s]) breach of the covenant “not to
rent to a competitor” gave rise to a claim that the amounts of rent she withheld comprised
a reasonable “set off” of damages from Lori’s breach, her failure to pay the percentage rent
may be discharged.
Waiver:
Ann will also argue that Lori’s failure to enforce the percentage rent constituted a
“waiver” which Ann then reasonably relied upon to continue her tenancy without paying
percentage rent. The facts indicate that Lori’s only response to Ann’s failure to pay
32
percentage rent was to write one letter requesting rent in April 2003. On these facts, Lori
may have waived the covenant to collect percentage rent.
Conversely, Lori may argue that Ann waived the covenant to not to [sic] lease to a
competitor greeting card store by merely complaining in February 2003 and then taking no
further action under the lease. If Ann would have claimed that Lori’s breach of the
covenant caused her business to be economically impacted to the point where she had to
close shop, she might be able to present an argument for “constructive eviction”. Since
this did not occur, Ann may have waived her right to enforce the covenant.
Therefore, while the right in Lori to collect percentage rent from Ann may have
arisen under the lease, as this covenant “ran with the land”, a court might not enforce this
covenant against Ann based upon the “mutually dependent” nature of this covenant with
Lori’s duty not to lease to a competitor, which Lori breached. In the alternative, a court
may find that both parties waived their rights to enforce the respective covenants. It should
be noted that as Tony’s assignee, under the lease, Ann could raise any of Tony’s rights
and defenses against Lori - provided the covenants run with the land, as they do here.
[Ïb.] Lori vs. Tony:
Lori’s right to collect past due percentage rent.
The assignment of Tony’s interest in the lease to Ann did not discharge Tony’s
duties under the lease. In the facts presented Tony will remain in “privity of contract” with
Lori and will therefore be bound by the contractual duties imposed by the lease. The
proper method for Tony to have discharged his liability under this contract would have been
for Tony & Lori to effect a novation of the contract. A novation occurs when the two parties
agree to substitute in a stranger
, in this case Ann, and discharge the original party to the
contract. No novation occurred in the facts presented. Tony remains liable for the past
due percentage rent owed to Lori, subject to the defenses which Ann could have raised,
waiver, breach of mutually dependent covenant. For the reasons stated above, Tony will
be subject to a claim for unpaid percentage rent based on his contractual liability to Lori,
but he will likely be able to successfully defend this claim as set forth above.

hyc9598
Posts: 151
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Re: July 2015 CA essay

Postby hyc9598 » Mon Mar 30, 2015 8:41 pm

Feb 2005 Contract Question

Question 2
PC manufactures computers. Mart operates electronics stores.
On August 1, after some preliminary discussions, PC sent a fax on PC letterhead to Mart
stating:
We agree to fill any orders during the next six months for our Model X
computer (maximum of 4,000 units) at $1,500 each.
On August 10, Mart responded with a fax stating:
We’re pleased to accept your proposal. Our stores will conduct an
advertising campaign to introduce the Model X computer to our customers.
On September 10, Mart mailed an order to PC for 1,000 Model X computers. PC
subsequently delivered them. Mart arranged with local newspapers for advertisements
touting the Model X. The advertising was effective, and the 1,000 units were sold by the
end of October.
On November 2, Mart mailed a letter to PC stating:
Business is excellent. Pursuant to our agreement, we order 2,000 more
units.
On November 3, before receiving Mart’s November 2 letter, PC sent the following fax to
Mart:
We have named Wholesaler as our exclusive distributor. All orders must
now be negotiated through Wholesaler.
After Mart received the fax from PC, it contacted Wholesaler to determine the status of its
order. Wholesaler responded that it would supply Mart with all the Model X computers that
Mart wanted, but at a price of $1,700 each.
On November 15, Mart sent a fax to PC stating:
We insist on delivery of our November 2 order for 2,000 units of Model X at
the contract price of $1,500 each. We also hereby exercise our right to
purchase the remaining 1,000 units of Model X at that contract price.
PC continues to insist that all orders must be negotiated through Wholesaler, which still
refuses to sell the Model X computers for less than $1,700 each.
1. If Mart buys the 2,000 Model X computers ordered on November 2 from Wholesaler for
$1,700 each, can it recover the $200 per unit price differential from PC? Discuss.
2. Is Mart entitled to buy the 1,000 Model X computers ordered on November 15 for $1,500
each? Discuss.
12
Answer A to Question 2
2)
Uniform Commercial Code
All contracts for the sale of goods, defined by 2-105 as those things identifiable at the time
of contract, are governed by the UCC.

This is a contract for the sale of computers, goods movable and identifiable at the time of
contract, and it is therefore governed by UCC rather than the Common Law.
Merchants
Merchants, defined by 2-104 as those who deal in goods of that kind sold, are held to a
higher standard of good faith.

PC manufactures computers, and Mart retails those computers, so both deal in the
computers and are therefore merchants as that term is used in the UCC.
If a contract exists, it is a contract for goods under the UCC, and both parties are
merchants.
Offer
An outward manifestation of present contractual intent, communicated to the offeree in
such a way as to make the offeree reasonably believe that the offeror is willing to enter into
a contract.

The facts state that PC and Mart had been engaged [in] “preliminary discussions” prior to
August 1. Because of these preliminary negotiations, PC’s fax was probably not a general
advertisement sent out to possible retailers (advertisements are generally not offers). The
August 1 fax on letterhead from PC to Mart, based on those discussions, was probably an
offer. Although it did not state a specific quantity (up to 4000), it did indicate the identity
of the parties, subject matter of the contract, and price, and the time of performance would
be implied as a reasonable time. The limitation that no more than 4000 computers could
be ordered makes the offer sufficiently definite to be enforced. Although the specific
quantity of goods is required by 2-201, the statute of frauds, it is not necessary for
formation, so this is apparently a valid offer.
Although PC would argue that there was no intent to be bound, in which case Mart would
have made the offer on September 10, the court would probably disagree. Because PC
delivered the goods without further communication, the court would probably conclude that
it was not receiving offers, but had made an offer, to which it was bound.
13
PC’s fax to Mart was probably a valid offer.
Merchant’s Firm Offer Rule
Under 2-205, a merchant who promises to hold an offer open with “words of firmness” will
not be permitted to revoke the offer for the time stated, but in no case will the offer be
irrevocable for longer than three months.

PC’s fax was a firm offer from one merchant to another. PC specifically stated that they
”agreed to fill any offers during the next six months.” Although this offer would only remain
irrevocable during the next three months (through November 1), it would remain in effect
unless revoked until the end of the six months.
PC’s fax was a merchants’ [sic] firm offer, irrevocable prior to November 1, and though
revocable at that time, in the absence of revocation it was valid under the six months
expired.
Acceptance
An outward manifestation of assent to the terms of the offer.
Mart’s fax of August 10 was not an acceptance. Although it manifested some assent, it did
not indicate a quantity of computers accepted, but only a general agreement to sell
computers, and this alone was not sufficient to form a contract.
On September 10, Mart mailed an order for 1,000 computers to PC. This was sufficiently
definite in quantity and indicated an intent to be bound. It was therefore a valid
acceptance.
Similarly, Mart’s November 2 letter was an appropriate acceptance. Though sent by letter
rather than by fax, it was effective, since under the UCC an offer may be accepted by any
reasonable means. The letter communicated assent to the proposed terms, and specified
a quantity (200). This was therefore a valid acceptance of PC’s offer. Under the Mailbox
Rule, an acceptance if [sic] effective upon dispatch, though a revocation is only effective
upon receipt. Mart’s letter was sent before PC’s revocation was receive[d], and it is
therefore effective.
Although the November 15th fax similarly stated an intent to be bound on 1000 more
computers, the offer had been properly revoked prior to that time, as discussed below, and
Mart therefore could not accept it. This attempted acceptance would be invalid as an
acceptance, and would instead be merely an offer, which PC summarily declined to accept.
Mart’s November 2 letter was a valid acceptance.
14
Revocation
A revocation is a statement that an offer may no longer be accepted. It is effective upon
receipt by the offeree.

Mart received PC’s fax on November 3, and it was therefore effective from that date
forward. However, it would have no effect prior to that date, and therefore would not affect
the validity of Mart’s purported November 2 acceptance of the offer.
Because a revocation is not effective until received, PC’s letter would not accept Mart’s
ability to accept the contract until November 3, and thus would not affect the outcome of
this case, although it would prevent any further acceptance.
Consideration
Bargained[-]for exchange of legal detriment
PC promised to sell and Mart promised to buy 2000 computers at $1500 each. This was
valid and sufficient consideration.
Because there was a valid offer, accepted and supported by consideration, PC and Mart
have a contract.
Statute of Frauds - Defense to Enforcement

The statute of Frauds (2-201) requires that all contracts for the sale of goods be in writing.
Although PC[‘]s original offer was on letterhead, they did not respond to the acceptance
and no integrated contract was signed. The court would probably find, though, and Mart’s
letter of November 2, was a valid written confirmation, which would allow the contract to
be enforced against both parties, although it might find that PC’s refusal to agree that there
was a contract was sufficient objection within ten days.
The court will probably find that the Statute of Frauds was satisfied by Mart’s acceptance
under the exception for a written confirmation, unless PC properly objected within ten days.
Material Breach
A refusal to perform under the contract which goes to the heart of the promised
performance.

PC refused to tender the 1000 computers ordered by Mart. This was material breach of
the contract, since the purpose of the contract was the delivery of those computers. If PC
and Mart had an enforceable contract, PC’s refusal to tender them was an anticipatory
15
material breach, and Mart could immediately consider the contract breached (rather than
waiting to see if PC would actually perform), and pursue remedies.
PC’s refusal to deliver the computers to Mart was probably a material breach.
Remedies
Cover
Under the UCC, a buyer can purchase replacement goods on the market at the time of the
breach and recover the difference between the contract price and the price of cover, plus
incidental costs.

Mart has a duty to mitigate its damages, which probably means they should buy
computers, even at a higher price, rather than completely lose the business. Although
generally a party may wait until performance is due, where there is a complete repudiation
of the contract by the other party prior to that time, there is probably a duty to mitigate
damages. If Mart did purchase replacement computers, from Wholesaler or any other
seller, they would [be] entitled to recover the difference between the price they were forced
to pay and the price they had agreed on with PC as the cost of cover from PC. Any
attempt to cover, however, must be exercised in good faith.
Mart will be able to recover the cost of Cover from PC.
I. Whether Mart will be able to recover the extra $200 purchase if it buys the
computers from Wholesaler?

Because PC and Mart apparently had a valid contract, and it was probably enforceable
under the Statute of Frauds because of Mart’s written confirmation, Mart can probably
recover the cost of cover from PC, so long as it acts in good faith. For 2000 computers
with an additional cost of $200 each, Mart would probably recover $400,000, plus costs
incidental to cover.
If the cover found that the Statute of Frauds was not satisfied, Mart would not be able to
enforce the contract, and would recover nothing.
II. Whether Mart can enforce a contract based on the Nov. 15 fax for 1000 final
computers?

Because PC properly revoked its offer to Mart on November 3, Mart no longer had the
power to accept that offer on November 15, and it has no enforceable rights against PC
for the 1000 computers offered on that date.

hyc9598
Posts: 151
Joined: Thu Dec 19, 2013 1:15 pm

Re: July 2015 CA essay

Postby hyc9598 » Mon Apr 06, 2015 2:20 pm

A party must make the initial disclosure at or within 14 days after the parties' rule 26(f) conference unless a different time is set by stipulation or court order. A party that is first served or otherwise joined must make the initial disclosure within 30 days after being served or joined.

hyc9598
Posts: 151
Joined: Thu Dec 19, 2013 1:15 pm

Re: July 2015 CA essay

Postby hyc9598 » Sat Apr 11, 2015 6:42 pm

july 2002
QUESTION 2
Able owned Whiteacre in fee simple absolute. Baker owned
Blackacre, an adjacent property. In 1999, Able gave Baker a
valid deed granting him an easement that gave him the right to
cross Whiteacre on an established dirt road in order to reach a
public highway. Baker did not record the deed. The dirt road
crosses over Whiteacre and extends across Blackacre to Baker=s
house. Both Baker=s house and the dirt road are plainly visible
from Whiteacre.
In 2000, Able conveyed Whiteacre to Mary in fee simple
absolute by a valid general warranty deed that contained all the
typical covenants but did not mention Baker=s easement. Mary
paid Able $15,000 for Whiteacre and recorded her deed.
Thereafter, Mary borrowed $10,000 from Bank and gave Bank a
note secured by a deed of trust on Whiteacre naming Bank as
beneficiary under the deed of trust. Bank conducted a title
search but did not physically inspect Whiteacre. Bank recorded
its deed of trust. Mary defaulted on the loan. In 2001, Bank
lawfully foreclosed on Whiteacre and had it appraised. The
appraiser determined that Whiteacre had a fair market value of
$15,000 without Baker=s easement and a fair market value of
$8,000 with Baker=s easement. Bank intends to sell Whiteacre
and to sue Mary for the difference between the sale price and
the loan balance.
The following statute is in force in this jurisdiction:
Every conveyance or grant that is not recorded is void as
against any subsequent good faith purchaser or beneficiary
under a deed of trust who provides valuable consideration and
whose interest is first duly recorded.
1. What interests, if any, does Baker have in Whiteacre?
Discuss.
12
2. What interests, if any, does Bank have in Whiteacre?
Discuss.
3. What claims, if any, may Mary assert against Able?
Discuss.
ANSWER A TO ESSAY QUESTION 2
1. Baker’s Interest in Whiteacre
Easement
An easement is an interest in land that grants someone a right to use the
land of another. An easement can be created in a number of ways. One way
an easement can be created is by express writing. Here, Able gave Baker a
valid deed granting the easement for the right to cross Whiteacre to reach the
public highway. Therefore, the easement was created at that time.
An easement will be perpetual in duration unless otherwise specified in the
instrument creating it. Here, Able did not include any termination date for the
easement. Therefore, the easement to Baker was to be perpetual in
duration.
There are two types of easements: easements appurtenant and easements
in gross. An easement appurtenant is one that involves two adjacent parcels
of land where one piece of land is used to benefit the other. The benefited
estate is called the dominant estate, while the burdened estate is called the
servient estate. Here, Blackacre is the dominant estate and Whiteacre is the
servient estate.
An easement, even though perpetual, can be terminated by the parties. A
dominant estate can release the servient estate from the easement by
writing. The writing would have to meet deed formalities to satisfy a valid
release. The easement can also be abandoned. However, it cannot simply
be an oral abandonment. The oral abandonment must be coupled with some
action by the dominant estate showing that they are abandoning the
13
easement. The servient estate can also terminate the easement by
prescription. Here, none of these actions of termination have occurred. So,
at first glance, Baker’s easement across Whiteacre should still be in
existence.
Recordation
An interest in land can be protected by recodation. At common law, an
interest in land was protected by the first in time, first in right doctrine. The
problem with the doctrine was that it did not protect bona fide purchasers.
Modern law has produced recording systems and recording statutes that spell
out the protection afforded to those that record their interests. At common
law, since Baker was first in time the easement, then his interest would be
protected against subsequent purchasers. But, as we are told, there is a
statute in this jurisdiction that controls.
An important concept in recordation is the concept of the bona fide purchaser
(“BFP”). BFPs are granted special status in many recordation statutes. A
bona fide purchaser is one who purchases for value and without notice of any
other interests. There are three types of notice. Actual notice is, of course,
characterized by the actual knowledge on the part of the purchaser of the
previous interest. Constructive notice is that which comes about by there
being a deed or interest recorded in the buyer’s direct chain of title. Finally,
there is inquiry notice. Inquiry notice comes about whenever an inspection of
the property or title records would lead a reasonable purchaser to launch a
further inquiry. Here, we are told that Baker did not record his deed granting
the easement. Therefore, we know that Mary and Bank could not have had
constructive notice of easement. However, we are also told that the
easement road leading to Baker’s house on Blackacre was plainly visible
from Whiteacre. This visibility is enough to put a subsequent purchaser on
inquiry notice. Therefore, Mary and Bank are not BFPs.
There are three types of recordation statues. There is a race statute which
will protect the first person to record their deed or interest regardless of their
status. There is a notice statute which will protect any bona fide purchaser
who records against any subsequent purchaser who is also not a bona fide
purchaser. There is also [a] race-notice statute which will protect a bona fide
purchaser, but only if he is the first to record. Notice and race-notice statutes
give protection only for BFPs; therefore, we know that if the statute in this
jurisdiction is a notice or race-notice statute, then Mary and Bank will not be
14
protected against Baker’s easement. Baker’s easement, rather, will protected
[sic] by the common law rule of first in time, first in right. The statute here a
race statute [sic]. It will protect any good faith purchaser for value or
beneficiary under a deed of trust as long as they recorded first. Here, we
know that Mary was a good faith purchaser for value. We are also told that
Mary recorded her deed. Therefore, the statute will protect her interest in
Whiteacre and will make Baker’s deed void as against Mary.
Necessity
An easement can arise by necessity. Necessity arises when one parcel of
land is cut off from any viable road or passageway. If the land is cut off, an
easement by necessity will arise across an adjacent piece of land for right of
way to the highway or other means of travel. The servient estate has the
right to place the easement anywhere on the property as long as it is
reasonable. Here, if the voiding of Baker’s deed of easement will cut off
Blackacre from any public highway, then an easement of necessity will arise
and he will still be able to cross Whiteacre. However, the holder of Whiteacre
will be able to place the easement wherever they wish as long as it is
reasonable.
2. Bank’s Interest in Whiteacre
Deed of Trust
A deed of trust acts like a mortgage. The title is held by a trustee until such
time as the loan is paid back and then title reverts back to the landowner.
Because this acts like a mortgage, courts will treat it like a mortgage and will
require the procedures of a mortgage. These procedures will include a
judicial proceeding (foreclosure) before a sale of the property to satisfy the
loan. The deed of trust will also be a recognized interest in property, as is the
mortgage. Therefore, it can be recorded and protected like a mortgage.
BFPs
As stated earlier, we know that a BFP is a purchaser for value that takes
without notice of a previous interest. Here, we are told that Bank does not
make a physical inspection of Whiteacre before making the loan and taking
their interest. If they had done so, as a reasonable party would have, then
15
they would have seen the dirt road leading to Bakers’ house. Therefore,
Bank was inquiry notice and is not a BFP.
Shelter Rule
Under the shelter rule, a subsequent purchaser can be sheltered under a
BFP’s protection. This means that if a jurisdiction has a statutory scheme
that only protects BFPs, that there is still a loophole that will allow a non-BFP
to get protection. The subsequent purchaser must take in a line descending
from the BFP. If the subsequent purchaser takes from BFP, he can use the
BFP’s protection under the statute for himself. The purpose of the rule is
protect [sic] the alienability of the property for the BFP. Here, we know that
Mary is not a BFP. We also know that the statutory scheme does not require
that one be a BFP. However, if we did have a notice or race-notice statute,
then Bank would not be protected under the shelter rule because Mary is not
a BFP.
Recordation
As stated above, one who holds an interest in land can protect that interest
by recording it pursuant to the recording statutes of its jurisdiction. Here, we
know that the recording statute applies to the beneficiary of deeds of trust.
Here, Bank was the beneficiary of the deed of trust on Whiteacre. The
statute requires valuable consideration be paid for the interest. Here, Bank
loaned Mary $10,000 for its interest in the deed of trust. Bank also recorded
its interest. When Bank recorded its interest, it made Baker’s deed of
easement void as to Bank’s interest. Therefore, Bank has an interest
superior to Baker’s.
Foreclosure
Bank’s deed of trust was secured by Mary’s interest in Whiteacre. As stated
before, the deed of trust acts like a mortgage so it will be treated as such by
the courts. This will require a foreclosure proceeding. Once the proceeding
has been established, Bank will be able to force the sale of Whiteacre to
satisfy its claim. Because Baker’s easement will be void as to Mary and
Bank, there will be no deficiency against Mary.
3. Mary v. Able
16
Easement
An easement on a servient estate passes with the servient estate. Therefore,
when Whiteacre passed from Able to Mary, Mary took subject to the
easement. However, the recordation statute has saved Mary from this.
At common law, a seller of land did not have to disclose anything to the
buyer. The buyer took at his own peril under the doctrine of caveat emptor.
However, a general warranty deed did require disclosures.
General Warranty Deed
Able passed Whiteacre to Mary on a general warranty deed. A general
warranty deed comes along with six covenants of title. There are three
present covenants and three future covenants. The present covenants are
the covenants of: seisin, right to convey, and against encumbrances. These
present covenants are breached, if at all, at the time that title is passed. The
future covenants are the covenants of: warranty, quiet enjoyment, and further
assurances. The future covenants are breached, if at all, at some later time
when another party makes a claim of paramount title.
Covenant Against Encumbrances
The covenant against encumbrances basically says that the title will be free
of any encumbrances not previously disclosed by seller. Encumbrances
include easements, restrictive covenants, and mortgages, among other
things. Here, Able did not disclose the easement held by Baker. This was a
breach of the covenant against encumbrances at the moment that title
passed. Therefore, Mary can sue for this breach and can collect any
damages that she suffered as a result.
17
ANSWER B TO ESSAY QUESTION 2
Baker’s interest in Whiteacre:
Easements:
An easement in a non-possessory interest in land that allows the easement
holder to use the property of the true owner. Baker’s easement can be
described as an easement appurtenant. Whiteacre is the servient estate.
Blackacre is the dominant estate. As the holder of the easement
appurtenant, Baker can use the road over Whiteacre to travel from Blackacre
to the public highway.
Unless they qualify as easements by necessity or by prescription, easements
must be in writing to be valid, and must satisfy the statute of frauds. Here,
Able granted Baker a valid deed, which will satisfy the writing requirements.
Therefore, it appears that Baker has a valid express easement to use the
road over W hiteacre for access to the public highway.
Additionally, easements are presumptively perpetual. They are terminated by
the terms of the instrument themselves, by express writing, by abandonment,
by condemnation of the servient estate, or by merger of the servient and
dominant estate. None of those things appear to have occurred here, so
Baker’s easement has not been terminated.
Failure to record:
Although Baker appears to have a valid easement, his failure to record may
affect his rights here. Recording statutes, such as the one in this jurisdiction,
are primarily for the purpose of protecting subsequent BFPs. They do not
effect the validity of land transfers themselves. Thus, despite his failure to
record, Baker had a valid easement when Able conveyed the deed to him,
assuming it was properly delivered and accepted.
Mary as a BFP
The next issue is whether Baker’s easement fails against a challenge by
Mary, because she purchased the dominant estate, Whiteacre, after Baker
did not record his deed to the easement. There is a recording statute in this
jurisdiction. The recording statute can best be described as a race-notice
18
statute. This means that in order to be protected under the statute, the
subsequent purchaser must take the property without notice and record their
deed first. Because Mary recorded her deed, and Baker never recorded his,
the race component of the race-notice statute has been satisfied, as Mary
recorded first.
The issue then becomes whether or not Mary satisfies the requirement of
being a subsequent good faith purchaser, which I will refer to a[s] BFP for
short. A BFP is a purchaser who pays valuable consideration and who takes
without notice of the other interest in the property. Mary paid $15,000, so she
did pay consideration.
Notice:
The main issue is whether Mary took without notice.
Subsequent purchasers are not good faith BFPs if they have either actual
notice, constructive notice, or inquiry notice. Here, there are no facts that
suggest that Mary in fact know about the easement, so we cannot simply
conclude that she had actual notice. Constructive notice is the type of notice
that comes from recording. Because Baker did not record his deed, Mary did
not have constructive notice. Inquiry notice comes from physical inspection
of the land. Here, the facts indicate that both Baker’s house and the dirt road
were plainly visible from Whiteacre. This indicates that upon inspection of
Whiteacre, Mary could have discovered the easement and inquired about it
before purchasing Whiteacre from Able. Thus, it can be said that Mary did
indeed have inquiry notice. As such, Mary fails as a BFP, and cannot defeat
Baker’s interest in Whiteacre. Therefore, it appears that Baker’s easement
over Whiteacre is valid.
Bank:
Moreover, the race-notice statute also protects mortgagors, such as the
Bank. The bank also satisfies the recording first component of the statute,
but did not physically inspect the land before taking its security interest in it.
Therefore, the Bank also had inquiry notice, and cannot simply defeat
Baker’s easment.
Bank’s interests in Whiteacre
19
Bank v. Baker
The race-notice statute in this jurisdiction protects beneficiaries under a deed
of trust. The bank is a beneficiary under a deed of trust, and therefore the
bank is protected by the recording statute. As discussed above, the Bank
satisfies the”race” component of the recording statute, as it recorded the
deed of trust and Baker never recorded his easement, therefore the Bank
recorded first.
Also as discussed above, the Bank did not inspect the land, but if it had it
would have discovered the easement. Therefore, the Bank had inquiry notice
of the easement and cannot defeat Baker’s interest in Whiteacre.
Bank v. Mary
The Bank lent Mary $10,000. In exchange, the Bank received a note secured
by a deed of trust in Whiteacre. In a title theory jurisdiction, this would have
meant that Bank held title to Whiteacre at equity. In a lien theory jurisdiction,
this would have meant that Bank simply had a lien on Whiteacre. In any
case, when Mary defaulted on the loan, Bank had a right to foreclosure on
the property. Mortgage law requires that a valid foreclosure sale takes place,
and the facts state that the Bank lawfully foreclosed.
Following foreclosure, the Bank became the owner of Whiteacre. Thus, the
Bank owns whatever interest in Whiteacre Mary owned, which means it owns
Whiteacre in fee simple absolute, subject to Baker’s easement.
The issue then is whether the Bank has a valid claim against Mary for the
$2000 difference between the loan amount and the value the land has been
appraised [at] first. Before the Bank can actually bring an action against Mary
for the difference, it must sell Whiteacre. Only after it sells Whiteacre on the
market can the Bank actually assert a deficiency judgment against Mary.
Had the Bank had the property appraised before granting the security
interest, the Bank likely would have discovered the easement and would have
discovered that the land was not worth $10,000. For this reason, Mary will
argue that the Bank assumed the risk of this deficiency.
Mary’s claims against Able
20Abel conveyed Whiteacre to Mary in fee simple absolute by a valid general
warranty deed that contained all the typical covenants, but did not mention
Baker’s easement. Although land sale contracts contain implied warranty of
marketable title, the land sale contract merges into the deed at closing,
therefore Mary’s only claims against Able must be based on the deed, and
Mary must proceed under the principles of real property law. The issue here
is what actions Mary has against Able based on the deed.
Deed covenants:
Warranty deeds contain present and future covenants. The present
covenants can only be breached at the time of the conveyance, and are
therefore not an issue here. However, the future covenants can be breached
later. Here, at a time following the conveyance, Mary took a mortgage out on
Whiteacre based on the value of the land without Baker’s easement. This
occurred after conveyance, and therefore Mary can bring an action against
Able under the future covenants. The future covenants are for quiet
enjoyment, further assurances and warranty.
These covenants represent guarantees made by Able that Mary owns the
land outright, free from encumbrances and from challenges to her ownership
interests by third parties. Here, the bank is threatening to sue Mary for the
$2000 deficiency between what she thought she owned and the value of
Whiteacre with Baker’s easement on it, as with the easement, the value of
Whiteacre is insufficient to pay off the $10,000 mortgage. Mary can sue Able
for the $2000 different [sic] under the future covenants, and she should
prevail because Able failed to inform Mary about the easement and the
easement was not mentioned in her deed. The facts regarding inquiry notice
and Baker’s failure to record are irrelevant here, as recording statutes do not
affect the validity of the deed conveyances.

hyc9598
Posts: 151
Joined: Thu Dec 19, 2013 1:15 pm

Re: July 2015 CA essay

Postby hyc9598 » Sat Apr 18, 2015 3:59 pm

Undue influence is judged by a variety of factors that show whether the aggrieved party was pressured by another party and whether the aggrieved party was vulnerable to that pressure.

hyc9598
Posts: 151
Joined: Thu Dec 19, 2013 1:15 pm

Re: July 2015 CA essay

Postby hyc9598 » Sat Apr 18, 2015 7:12 pm

The double jeopardy clause forbids the state from prosecuting, or punishing, a defendant twice for the same action.

User avatar
encore1101
Posts: 641
Joined: Tue Oct 22, 2013 10:13 am

Re: July 2015 CA essay

Postby encore1101 » Sat Apr 18, 2015 10:08 pm

So why hasn't this been locked?

hyc9598
Posts: 151
Joined: Thu Dec 19, 2013 1:15 pm

Re: July 2015 CA essay

Postby hyc9598 » Sat Apr 18, 2015 11:09 pm

The law charges a subsequent claimant with constructive notice of all prior conveyances affecting the subject property that have been properly recorded.

hyc9598
Posts: 151
Joined: Thu Dec 19, 2013 1:15 pm

Re: July 2015 CA essay

Postby hyc9598 » Sat Apr 18, 2015 11:12 pm

A license is a protected property interest that cannot be taken away without procedural due process.




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