BarBri Bar Review Hangout - July 2015 Exam Forum

[kyle010723]

Yea. Take the rest of the day off. Go drink a brew.

Given the option, drink with Guzman or Epstein?

Probably Guzman. Epstein seems like the type of guy that would get me arrested lol

There's always Paula, but she will probably just serenade you instead

[murray18]

Does anybody have an understanding of how the MEE is scaled in UBE states? For example, if I get straight 1/6 on all 6 essays, what would my scaled score be? What if I averaged 3.5 on all 6 essays?

[Good Guy Gaud]

Does anybody have an understanding of how the MEE is scaled in UBE states? For example, if I get straight 1/6 on all 6 essays, what would my scaled score be? What if I averaged 3.5 on all 6 essays?

No idea but am also interested

[xChiTowNx]

68/100 Emmanuel PM - freaked out when I had a long stretch of B's on the first 25. Out of 6 straight B's:

[+] Spoiler

4 were correct

In the words of Based Guzman, "Be confident."

[victortsoi]

additional point of freakout- there is no consensus or feedback from feb takers on how hard the civ pro was compared to barbri or adaptibar etc. hmm.

[Redamon1]

What is the difference between the ban on double jeopardy and the doctrine of lesser included offenses? If a crime is a lesser included offense, isn't it automatically barred by the double jeopardy prohibition? My understanding is that two crimes are the same unless each one requires proof an additional element that the other does not require. By definition, a lesser included offense requires no element additional to the higher crime. What am I missing?

[kyle010723]

At this point, I am just going to assume perfecting a secured interest on a fixture is not going to be one of the essays

[Good Guy Gaud]

At this point, I am just going to assume perfecting a secured interest on a fixture is not going to be one of the essays

I'm assuming secured transactions won't even be on the MEE at this point

[BVest]

I thought common practice was a factor in determining whether an activity was abnormally dangerous or not... not an element to consider alongside "abnormally dangerous."

I might be misunderstanding you but I think we agree. The factors Barbri uses in the essay explanations whether it is abnormally dangerous are that it can't be made safe despite due care and is not common in the community. The restatement seems to go further and I'm sure there are cases out there that we could confuse ourselves all day with but I'm gonna use barbri's definition for this one. Having said that I doubt there will be a close call on the exam where it really turns on something like how regularly citizens in a community transport nuclear waste.

Got it. We don't have torts in essays down here, thank God.

[Kage3212]

What is the difference between the ban on double jeopardy and the doctrine of lesser included offenses? If a crime is a lesser included offense, isn't it automatically barred by the double jeopardy prohibition? My understanding is that two crimes are the same unless each one requires proof an additional element that the other does not require. By definition, a lesser included offense requires no element additional to the higher crime. What am I missing?

This looks right to me. Whats the question?

[kyle010723]

At this point, I am just going to assume perfecting a secured interest on a fixture is not going to be one of the essays

I'm assuming secured transactions won't even be on the MEE at this point

Probably, the odd is that half will be MBE topics, BA will probably be another one, and something else I guess. Idk, just trying to cover my bases.

[gretchenweiners]

The sample essays from ncbe (ex: https://www.ncbex.org/pdfviewer/?file=% ... ument%2F26) set out the subject matter for the essay for you. Anyone know if this is also the format on the real thing (for people taking UBE only I guess, since states probably have their own system/format)?

[kyle010723]

The sample essays from ncbe (ex: https://www.ncbex.org/pdfviewer/?file=% ... ument%2F26) set out the subject matter for the essay for you. Anyone know if this is also the format on the real thing (for people taking UBE only I guess, since states probably have their own system/format)?

No clue, but a lot of none-UBE states also use MEE on top of state specific stuffs.

[Outis Onoma]

Did essay 3 for trusts. That was a bloodbath.

Was it the one about re-writing the trust to make it conform to the husband's wishes? I'm not sure if we all have the same MEET book but if so I remember LOLing at that question.

Yes. I took it as a learning experience. "oh look, five separate issues I know nothing about. I guess I know something about them now." Didn't even know that the default rule was that you couldn't add property to a trust after it was created. WHAT?!

[musicfor18]

What is the difference between the ban on double jeopardy and the doctrine of lesser included offenses? If a crime is a lesser included offense, isn't it automatically barred by the double jeopardy prohibition? My understanding is that two crimes are the same unless each one requires proof an additional element that the other does not require. By definition, a lesser included offense requires no element additional to the higher crime. What am I missing?

This looks right to me. Whats the question?

As far as I understand, "lesser included offense" is a label for when only one of the crimes requires an additional element (but not both do).

[musicfor18]

Anyone in NY do Evidence Essay 2 in the Barbri book? Second- and third-degree arson?? If that shows up on an essay, I'm screwed.

[Redamon1]

What is the difference between the ban on double jeopardy and the doctrine of lesser included offenses? If a crime is a lesser included offense, isn't it automatically barred by the double jeopardy prohibition? My understanding is that two crimes are the same unless each one requires proof an additional element that the other does not require. By definition, a lesser included offense requires no element additional to the higher crime. What am I missing?

This looks right to me. Whats the question?

As far as I understand, "lesser included offense" is a label for when only one of the crimes requires an additional element (but not both do).

Ok thanks. I thought maybe the two doctrines meant different things and I was missing something.

[musicfor18]

Question re: real covenants. Vertical privity requires that the successor in interest hold the entire durational interest held by the covenantor at the time of the covenant. What precisely does this mean insofar as sublessees or life tenants are concerned? They aren't burdened by the covenant? Seems weird to me...

The burden of the covenant won't run so you can't sue for damages but you can sue for an injunction because equitable servitudes don't require privity, right?

This cant be right because in the leasing context, covenants in the lease bind lessees. I have seen multiple questions and what not where subsequent assignees of a lease are bound by covenants from the original lessee.

Yes, but with an assignment the assignor gives their entire estate to the assignee and that is the requirement for vertical privity.

If you had Franz for real prop, check page 62 of the lecture outline. I have written in, any "non-hostile nexus," and near the top of page 62 it states "the only time that vertical privity will be absent is if A-1 acquired her interest through adverse possession"

I have no idea what that means. Was that a state distinction? All I know is that page 85 of the long real property outline says "To be bound, the successor in interest to the covenanting party must hold the entire durational interest held by the covenantor at the time she made the covenant." It then gives an example of a life estate not being bound because the grantor had a FSA.

Edit: Are you looking at the test for the benefit to run? Vertical privity for the benefit to run simply requires any succeeding possessory estate.

Franzese didn't address this in her lecture, but it's correct. For the burden of a real covenant to run, there's only vertical privity if the entire balance of the interest is transferred. For the benefit to run, there's vertical privity if any amount of the interest is transferred. I don't know how this intersects with the question about covenants in leases.

[gretchenweiners]

The sample essays from ncbe (ex: https://www.ncbex.org/pdfviewer/?file=% ... ument%2F26) set out the subject matter for the essay for you. Anyone know if this is also the format on the real thing (for people taking UBE only I guess, since states probably have their own system/format)?

No clue, but a lot of none-UBE states also use MEE on top of state specific stuffs.

Ah, gotcha

[brotherdarkness]

Franzese didn't address this in her lecture, but it's correct. For the burden of a real covenant to run, there's only vertical privity if the entire balance of the interest is transferred. For the benefit to run, there's vertical privity if any amount of the interest is transferred. I don't know how this intersects with the question about covenants in leases.

Okay I'll make up an example to illustrate my question a little better.

"A" conveys property to "B." In the deed, A includes a covenant that B shall not BBQ on his property because the smoke bothers A.

B sublets his property to "C." B doesn't say anything to C about the restriction on BBQing. C decides to host a BBQ. A wants to prevent C from doing this. What does A do?

[xlawschoolhopefulx]

Anyone in NY do Evidence Essay 2 in the Barbri book? Second- and third-degree arson?? If that shows up on an essay, I'm screwed.

That's actually one I've managed to remember, based in part on the suggestion that we learn one degree and then assume anything of a higher degree is worse.

E.g. we were told to memorize third degree arson (intentionally damaging a building or motor vehicle by causing a fire, or whatever you can remember along those lines). There are two degrees higher, so each must be worse than the other. Second degree is intentionally starting the fire and knowing (or should be knowing) someone is inside. What's worse than that? Using an explosive device to start your fire, so that's first degree.

Obviously it's not completely perfect, but it gets the point across and indicates you realize there are degrees of crimes.

[musicfor18]

Question re: real covenants. Vertical privity requires that the successor in interest hold the entire durational interest held by the covenantor at the time of the covenant. What precisely does this mean insofar as sublessees or life tenants are concerned? They aren't burdened by the covenant? Seems weird to me...

The burden of the covenant won't run so you can't sue for damages but you can sue for an injunction because equitable servitudes don't require privity, right?

This cant be right because in the leasing context, covenants in the lease bind lessees. I have seen multiple questions and what not where subsequent assignees of a lease are bound by covenants from the original lessee.

I think this is a different issue (but please correct me if I'm wrong). In the landlord-tenant context, covenants in the lease bind lessees both through privity of contract and also through privity of estate (if the covenant touches and concerns the land). When a tenant assigns his lease, the assignee then becomes in privity of estate with the landlord, so any covenants that touch and concern the land will be enforceable against the assignee. But if it's just a sublessee, then the sublessee is neither in privity of contract or estate with the landlord; instead, the original tenant remains in both kinds of privity, and the sublessee is in privity of contract with the original tenant.

[musicfor18]

Franzese didn't address this in her lecture, but it's correct. For the burden of a real covenant to run, there's only vertical privity if the entire balance of the interest is transferred. For the benefit to run, there's vertical privity if any amount of the interest is transferred. I don't know how this intersects with the question about covenants in leases.

Okay I'll make up an example to illustrate my question a little better.

"A" conveys property to "B." In the deed, A includes a covenant that B shall not BBQ on his property because the smoke bothers A.

B sublets his property to "C." B doesn't say anything to C about the restriction on BBQing. C decides to host a BBQ. A wants to prevent C from doing this. What does A do?

First, I don't think B would be "subletting" here because, under your facts, B isn't a tenant. He owns the land in fee simple. So, this is a regular real covenant/equitable servitude question. I'll answer the rest of your question as if B is leasing to C. This can't be enforced against C as a real covenant (so, no damages against C). This is because there's no vertical privity for the burden, so the burden doesn't run to C (because B didn't transfer the entire remaining durational interest in the property to C). But I think A could still enforce this as real covenant against B, and get damages from B.

Or, if A just wants an injunction, then you see whether it meets the requirements for an equitable servitude. For the burden to be enforceable as an ES, the covenant must be in writing, it must be intended to run against successors; it must touch and concern the land; and the successor must have notice (actual, inquiry, or record). For the benefit to run, you need a writing, intent, and touch and concern. There's a writing here (the deed), courts usually presume intent to run, it definitely touches and concerns the land. The only question is whether C had notice of the covenant. I'm not 100% positive is lessees are held to have record notice of covenants in deeds in the chain of title. Does anyone know? If so, then C has record notice.

[kykiske]

http://www.galandabroadman.com/wp-conte ... mbaby1.jpg

#Ibelievethatwewillpass

[brotherdarkness]

Franzese didn't address this in her lecture, but it's correct. For the burden of a real covenant to run, there's only vertical privity if the entire balance of the interest is transferred. For the benefit to run, there's vertical privity if any amount of the interest is transferred. I don't know how this intersects with the question about covenants in leases.

Okay I'll make up an example to illustrate my question a little better.

"A" conveys property to "B." In the deed, A includes a covenant that B shall not BBQ on his property because the smoke bothers A.

B sublets his property to "C." B doesn't say anything to C about the restriction on BBQing. C decides to host a BBQ. A wants to prevent C from doing this. What does A do?

First, I don't think B would be "subletting" here because, under your facts, B isn't a tenant. He owns the land in fee simple. So, this is a regular real covenant/equitable servitude question. I'll answer the rest of your question as if B is leasing to C. This can't be enforced against C as a real covenant (so, no damages against C). This is because there's no vertical privity for the burden, so the burden doesn't run to C (because B didn't transfer the entire remaining durational interest in the property to C). But I think A could still enforce this as real covenant against B, and get damages from B.

Or, if A just wants an injunction, then you see whether it meets the requirements for an equitable servitude. For the burden to be enforceable as an ES, the covenant must be in writing, it must be intended to run against successors; it must touch and concern the land; and the successor must have notice (actual, inquiry, or record). For the benefit to run, you need a writing, intent, and touch and concern. There's a writing here (the deed), courts usually presume intent to run, it definitely touches and concerns the land. The only question is whether C had notice of the covenant. I'm not 100% positive is lessees are held to have record notice of covenants in deeds in the chain of title. Does anyone know? If so, then C has record notice.

Thanks, that was very helpful.