Themis Bar Review Hangout - July 2016 Forum

[Rahviveh]

What is the difference between equitable servitudes and covenants?? Thanks in advance!!!

They are the same thing. The difference is the remedy and what is required for it to run.


If you are trying to seek an equitable remedy- its an equitable servitude.
If you are trying to seek damages- its a covenant.

To run with the land, covenants require
Touch and Concern
Writing
Intent to run
Notice

and

Privity

For equitable servitudes to run with the land, all the same things are required, EXCEPT:
No privity requirement.

At least that's my understanding. Someone can correct me if I'm wrong.

Isn't there something dealing with horizontal versus vertical privity in this area of law? I'm thinking the difference btw in gross vs. run with land?

For the burden to run in a covenant, you need both horizontal and vertical privity. For a burden to run in an equitable servitude, you only need horizontal privity

You don't need privity period for equitable servitudes. You must be confusing it with the burden/benefit distinction for covenants, which I haven't bothered to memorize because I've literally never seen a question on it

[Nebby]

What is the difference between equitable servitudes and covenants?? Thanks in advance!!!

They are the same thing. The difference is the remedy and what is required for it to run.


If you are trying to seek an equitable remedy- its an equitable servitude.
If you are trying to seek damages- its a covenant.

To run with the land, covenants require
Touch and Concern
Writing
Intent to run
Notice

and

Privity

For equitable servitudes to run with the land, all the same things are required, EXCEPT:
No privity requirement.

At least that's my understanding. Someone can correct me if I'm wrong.

Isn't there something dealing with horizontal versus vertical privity in this area of law? I'm thinking the difference btw in gross vs. run with land?

For the burden to run in a covenant, you need both horizontal and vertical privity. For a burden to run in an equitable servitude, you only need horizontal privity

You don't need privity period for equitable servitudes. You must be confusing it with the burden/benefit distinction for covenants, which I haven't bothered to memorize because I've literally never seen a question on it

I think you're right. I was confusing benefit v. burden with regard to covenants. Benefit needs only horizontal privity. Equitable servitudes need neither. I actually just missed a question a few days ago because I thought equitable servitudes needed privity

[Rahviveh]

What is the difference between equitable servitudes and covenants?? Thanks in advance!!!

They are the same thing. The difference is the remedy and what is required for it to run.


If you are trying to seek an equitable remedy- its an equitable servitude.
If you are trying to seek damages- its a covenant.

To run with the land, covenants require
Touch and Concern
Writing
Intent to run
Notice

and

Privity

For equitable servitudes to run with the land, all the same things are required, EXCEPT:
No privity requirement.

At least that's my understanding. Someone can correct me if I'm wrong.

Isn't there something dealing with horizontal versus vertical privity in this area of law? I'm thinking the difference btw in gross vs. run with land?

For the burden to run in a covenant, you need both horizontal and vertical privity. For a burden to run in an equitable servitude, you only need horizontal privity

You don't need privity period for equitable servitudes. You must be confusing it with the burden/benefit distinction for covenants, which I haven't bothered to memorize because I've literally never seen a question on it

I think you're right. I was confusing benefit v. burden with regard to covenants. Benefit needs only horizontal privity. Equitable servitudes need neither. I actually just missed a question a few days ago because I thought equitable servitudes needed privity

What exactly is a benefit and a burden of a covenant? The outline doesn't really define them

[Nebby]

What is the difference between equitable servitudes and covenants?? Thanks in advance!!!

They are the same thing. The difference is the remedy and what is required for it to run.


If you are trying to seek an equitable remedy- its an equitable servitude.
If you are trying to seek damages- its a covenant.

To run with the land, covenants require
Touch and Concern
Writing
Intent to run
Notice

and

Privity

For equitable servitudes to run with the land, all the same things are required, EXCEPT:
No privity requirement.

At least that's my understanding. Someone can correct me if I'm wrong.

Isn't there something dealing with horizontal versus vertical privity in this area of law? I'm thinking the difference btw in gross vs. run with land?

For the burden to run in a covenant, you need both horizontal and vertical privity. For a burden to run in an equitable servitude, you only need horizontal privity

You don't need privity period for equitable servitudes. You must be confusing it with the burden/benefit distinction for covenants, which I haven't bothered to memorize because I've literally never seen a question on it

I think you're right. I was confusing benefit v. burden with regard to covenants. Benefit needs only horizontal privity. Equitable servitudes need neither. I actually just missed a question a few days ago because I thought equitable servitudes needed privity

What exactly is a benefit and a burden of a covenant? The outline doesn't really define them

Landowner A and B agree to write a covenant into their deeds that Landowner A and subsequent owners will trim the bushes between their property. Land A is burdened with the trimming responsibility, while Land B receives the benefit.

[hirkaismyname]

What is the difference between equitable servitudes and covenants?? Thanks in advance!!!

They are the same thing. The difference is the remedy and what is required for it to run.


If you are trying to seek an equitable remedy- its an equitable servitude.
If you are trying to seek damages- its a covenant.

To run with the land, covenants require
Touch and Concern
Writing
Intent to run
Notice

and

Privity

For equitable servitudes to run with the land, all the same things are required, EXCEPT:
No privity requirement.

At least that's my understanding. Someone can correct me if I'm wrong.

Isn't there something dealing with horizontal versus vertical privity in this area of law? I'm thinking the difference btw in gross vs. run with land?

For the burden to run in a covenant, you need both horizontal and vertical privity. For a burden to run in an equitable servitude, you only need horizontal privity

You don't need privity period for equitable servitudes. You must be confusing it with the burden/benefit distinction for covenants, which I haven't bothered to memorize because I've literally never seen a question on it

I think you're right. I was confusing benefit v. burden with regard to covenants. Benefit needs only horizontal privity. Equitable servitudes need neither. I actually just missed a question a few days ago because I thought equitable servitudes needed privity

What exactly is a benefit and a burden of a covenant? The outline doesn't really define them

OOOoOO, I got this one:

Benefit -- like you, as a landowner, get to limit your neighbor's use of his land (preventing outsiders from coming to a lake that your neighbor owns)
Burden -- like you, as a landowner, have a duty to do something on your land for the neighbor (have to shovel snow during snow/ice storm)

[BigZuck]

Being told "Yes, that answer choice is correct, it's just not THE MOST correct" when reviewing MBE practice sets makes me want to punch someone right in their Themis.

[Fivedham]

I feel like Charlie Brown with the football every time I get an MBE question involving taxpayer standing to sue under the Establishment Clause. I never get them right, because it seems like it's always so narrow when that rule applies. And then when I DO say someone has standing, I'm always wrong. ugh.

[Nebby]

I feel like Charlie Brown with the football every time I get an MBE question involving taxpayer standing to sue under the Establishment Clause. I never get them right, because it seems like it's always so narrow when that rule applies. And then when I DO say someone has standing, I'm always wrong. ugh.

Thankfully it will be only one question on the MBE and there's a 50% chance it wont' even be on the MBE

[ndp1234]

Can someone please explain to me the difference between a subject to mortgage and assuming the mortgage?

Is the difference that assuming the mortgage creates personal liability where as a subject to mortgage does not?

[Fivedham]

I feel like Charlie Brown with the football every time I get an MBE question involving taxpayer standing to sue under the Establishment Clause. I never get them right, because it seems like it's always so narrow when that rule applies. And then when I DO say someone has standing, I'm always wrong. ugh.

Thankfully it will be only one question on the MBE and there's a 50% chance it wont' even be on the MBE

Yeah I gotcha. I'm not even mad at getting it wrong all the time, I'm more just kinda flummoxed with Themis for killing my confidence in answering what appears to be a simple rule, because they constantly are testing the exception.

[Chardee_MacDennis]

Can someone please explain to me the difference between a subject to mortgage and assuming the mortgage?

Is the difference that assuming the mortgage creates personal liability where as a subject to mortgage does not?

Yes. If I buy a house subject to the mortgage, I'm buying it with the encumbrance but no personal liability. The original mortgagor remains personally liable. The bank can still foreclose but can't come after me for any deficiency.

If I assume the mortgage, I'm assuming personal liability for it. Thus, the bank can foreclose AND come after me personally.

[Nebby]

Can someone please explain to me the difference between a subject to mortgage and assuming the mortgage?

Is the difference that assuming the mortgage creates personal liability where as a subject to mortgage does not?

Yes. If I buy a house subject to the mortgage, I'm buying it with the encumbrance but no personal liability. The original mortgagor remains personally liable. The bank can still foreclose but can't come after me for any deficiency.

If I assume the mortgage, I'm assuming personal liability for it. Thus, the bank can foreclose AND come after me personally.

The best way to remember whether a mortgage is assumed is: UNLESS the fact pattern explicitly says that the mortgage is assumed, then it is never assumed.

[hirkaismyname]

Explanation on how a Plaintiff can bring in a 3PDef and it's relation to SOL:

PL serves D, D responds (answer) w/in 19 days.PL learns that another person needs to be added. The next day, w.out D's consent or CT's leave, PL amends the complaint to add 3PD. 3PD moves to dismiss claim from PL bc 3PD has no knowledge, or reason to know he'd be added, PLUS points out that the controlling statute of limitations had expired after the original complaint was filed and before the amended complaint was filed.

What SOL is the 3PD referring to?

There was also an explanation relating to 1. 3PD didn't know or should have known she could be joined, and 2. mistaken ID...

Does that mean PL can amend a 3PD if the original complaint mistook the original D's ID?

[blach0987]

Has anybody scored five or six on the structure of their graded essays? I consistently score four, but I'm following what they suggested. If you're scoring more, do you mind posting a sample?

I can like post one of essays if you want. But the structure I follow is like this.

Sub-issue title

[ISSUE] The issue is whether....

[RULE] A negligence claim requires the defendant failed to exercise care a reasonable person would exercise, breached the duty to prevent foreseeable risk of harm to anyone in plaintiff’s position and the breach must be the cause of the plaintiff’s injuries.

[ANALYSIS/APPLICATION] John failed to exercise reasonable care (duty) BECAUSE..... He breached this duty BECAUSE.... There is proximate cause BECAUSE....

[CONCLUSION] Therefore, John is liable for negligence.

You can also sub-issue this. Like a sub-IRAC for each sub-issue. One for duty, one for breach, one for causation. It depends on how complicated the essay is and how much you have to break it out.

[ndp1234]

Explanation on how a Plaintiff can bring in a 3PDef and it's relation to SOL:

PL serves D, D responds (answer) w/in 19 days.PL learns that another person needs to be added. The next day, w.out D's consent or CT's leave, PL amends the complaint to add 3PD. 3PD moves to dismiss claim from PL bc 3PD has no knowledge, or reason to know he'd be added, PLUS points out that the controlling statute of limitations had expired after the original complaint was filed and before the amended complaint was filed.

What SOL is the 3PD referring to?

There was also an explanation relating to 1. 3PD didn't know or should have known she could be joined, and 2. mistaken ID...

Does that mean PL can amend a 3PD if the original complaint mistook the original D's ID?

This is concerning the relation back doctrine. Adding a new defendant has to meet SOL requirements even though P has already filed a timely complaint. The addition of the new defendant can "relate back" to the original complaint if the defendant knew or should have known he should have been added but for a mistake on the part of the plaintiff. This commonly comes up in a situation of joint ownership or joint liability. Ex: when a wife and husband own property and only the wife was named.

[Vantwins]

Fun can wait, it's go time.

The reason why I have not downloaded Pokemon Go. Just need to focus for another 20 days.

This cracks me up because my 6 year old son is obsessed with that right now! My husband took him to Barnes and Noble and Target today and said there were a bunch of people on the sidewalk all using the app.

meanwhile I was up past 1am watching the season finale of Outlander.

[ndp1234]

Just got an EP question where the standard was supposed to be compelling interest but the "correct" answer choice stated as substantial interest, which was only justified by saying it was the most correct answer.

[mu13ski]

Can someone please explain to me the difference between a subject to mortgage and assuming the mortgage?

Is the difference that assuming the mortgage creates personal liability where as a subject to mortgage does not?

Yes. If I buy a house subject to the mortgage, I'm buying it with the encumbrance but no personal liability. The original mortgagor remains personally liable. The bank can still foreclose but can't come after me for any deficiency.

If I assume the mortgage, I'm assuming personal liability for it. Thus, the bank can foreclose AND come after me personally.

What about the situation where an individual takes subject to the mortgage but decides to make mortgage payments anyways and then stops?

[ndp1234]

Can someone please explain to me the difference between a subject to mortgage and assuming the mortgage?

Is the difference that assuming the mortgage creates personal liability where as a subject to mortgage does not?

Yes. If I buy a house subject to the mortgage, I'm buying it with the encumbrance but no personal liability. The original mortgagor remains personally liable. The bank can still foreclose but can't come after me for any deficiency.

If I assume the mortgage, I'm assuming personal liability for it. Thus, the bank can foreclose AND come after me personally.

What about the situation where an individual takes subject to the mortgage but decides to make mortgage payments anyways and then stops?

I think with their conduct they have effectively assumed the mortgage. An assumption of the mortgage does not have to be in writing, but can be implied through conduct.

[rambleon65]

Anyone getting real frustrated w/ the graded essays? My grader, for the second time, missed my entire section on conspiracy crimes and noted in red bold letters, "Missed issue: conspiracy." He's done this before, where on that instance, I didn't discuss an obviously non-issue; the Themis director even agreed with me.

I really couldn't give a crap about what Themis grades me, but i do feel uneasy that I am still not quite sure where I am with the essays.

[ndp1234]

Anyone getting real frustrated w/ the graded essays? My grader, for the second time, missed my entire section on conspiracy crimes and noted in red bold letters, "Missed issue: conspiracy." He's done this before, where on that instance, I didn't discuss an obviously non-issue; the Themis director even agreed with me.

I really couldn't give a crap about what Themis grades me, but i do feel uneasy that I am still not quite sure where I am with the essays.

Ask for another grader so that you can gauge where you are. Reach out to the director and ask for another one for the last essay since he/she already knows about the issue.

[hirkaismyname]

Can someone please explain to me the difference between a subject to mortgage and assuming the mortgage?

Is the difference that assuming the mortgage creates personal liability where as a subject to mortgage does not?

Yes. If I buy a house subject to the mortgage, I'm buying it with the encumbrance but no personal liability. The original mortgagor remains personally liable. The bank can still foreclose but can't come after me for any deficiency.

If I assume the mortgage, I'm assuming personal liability for it. Thus, the bank can foreclose AND come after me personally.

What about the situation where an individual takes subject to the mortgage but decides to make mortgage payments anyways and then stops?

I think with their conduct they have effectively assumed the mortgage. An assumption of the mortgage does not have to be in writing, but can be implied through conduct.

In this situation, the original person who made the loan, even after an "implied" assumption will still be liable to the bank because there isn't a novation given by the bank.

Now as far as the "assumer's" liability to the bank or original loan maker that I don't know. I would say that the bank has privity of estate with the person occupying the mortgaged property.

Need someone else to confirm though.

[bsktbll28082]

Anyone getting real frustrated w/ the graded essays? My grader, for the second time, missed my entire section on conspiracy crimes and noted in red bold letters, "Missed issue: conspiracy." He's done this before, where on that instance, I didn't discuss an obviously non-issue; the Themis director even agreed with me.

I really couldn't give a crap about what Themis grades me, but i do feel uneasy that I am still not quite sure where I am with the essays.

My grader missed issues a few times. He also keeps saying my essay are too choppy and do not flow (I'm following CIRAC diligently). I'm not too worried as I think the actual essay graders will not miss huge paragraphs.

[BigZuck]

Anyone getting real frustrated w/ the graded essays? My grader, for the second time, missed my entire section on conspiracy crimes and noted in red bold letters, "Missed issue: conspiracy." He's done this before, where on that instance, I didn't discuss an obviously non-issue; the Themis director even agreed with me.

I really couldn't give a crap about what Themis grades me, but i do feel uneasy that I am still not quite sure where I am with the essays.

My grader missed issues a few times. He also keeps saying my essay are too choppy and do not flow (I'm following CIRAC diligently). I'm not too worried as I think the actual essay graders will not miss huge paragraphs.

It wouldn't surprise me if actual essay graders are even worse than Themis essay graders

[ultimolugar]

Anyone getting real frustrated w/ the graded essays? My grader, for the second time, missed my entire section on conspiracy crimes and noted in red bold letters, "Missed issue: conspiracy." He's done this before, where on that instance, I didn't discuss an obviously non-issue; the Themis director even agreed with me.

I really couldn't give a crap about what Themis grades me, but i do feel uneasy that I am still not quite sure where I am with the essays.

My grader missed issues a few times. He also keeps saying my essay are too choppy and do not flow (I'm following CIRAC diligently). I'm not too worried as I think the actual essay graders will not miss huge paragraphs.

It wouldn't surprise me if actual essay graders are even worse than Themis essay graders

I've heard from colleagues of mine that bar graders, at least in FL, are pretty generous. We had a secured transactions/commercial paper essay on the FEB bar, and she wrote her response as a contracts essay. Got almost 40 points.