BarBri - NY Exam - July 2014 Forum

[thetashster]

property MBE question...

so let's say i install a fixture in the house. the lease is silent on fixtures. then i get a mortgage using the fixture. lease ends. and i default on the mortgage.

who gets the stove?

this is a really poor summary of a question i had come across. and i'm still a bit confused on it.

Pretty sure if you got the mortgage on the fixture after already purchasing the fixture, then the initial mortgagee gets the stove (ignoring any race-notice potential issues).

If the second mortgage was incurred simultaneously with the fixture (e.g. a PMSI) and the second mortgagee recorded that interest within twenty days of its purchase, then they would have priority in that fixture over the first mortgagee even if the first mortgagee recorded their interest.

But she didn't mention an initial mortgage for the purchase of the stove. Once you installed the fixture as a tenant, if you had the intent for it to remain I think it becomes affixed to the property. At that point, I don't think you as the tenant could mortgage it. If you do, I don't think the fixtures mortgagee would be protected by the recording act.

Ya. RC fail.

For this situation I believe the standard is if the premises can be restored to their prior condition and removal can be done within a reasonable amount of time (which is usually before termination of the lease unless the lease was terminated by the LL and the tenant did not have sufficient prior notice).

i'm being dumb. i think i meant that i got the stove from like a best buy or something. but i stopped paying for it. so if it IS a fixture, does the landlord get to keep it? or does best buy get it back?

[Guchster]

Slightly knitpicky, but I cannot find this in my notes but remember seeing it.

Could someone explain reasonable force used to stop a fleeing criminal (could be deadly or non-deadly and felon or misdemeanor). Thanks!

The level of reasonable force allowed depends on if you're a cop or a private person. (also this is on pg 21 of the CMR) I'm assuming you're asking about effectuating arrests of fleeing felons. The standard to prevent a crime is slightly different.

If you're a cop: Nondeadly force is always allowed if reasonably necessary. Deadly force is allowed if reasonably necessary to prevent a felon's escape and the police officer reasonably believes the felon is dangerous.

If you're a private person: All the same requirements as cops, except that nondeadly force require that the crime was ACTUALLY committed and the private person has reasonable grounds to believe the person committed it. For deadly force, the felon must because actually guilty of the offense.

So to further split it: no deadly force ever for a misdemeanor, regardless of whether its a cop or a private person.

This is all TCR.

Something to add though: When police/private citizens are allowed to arrest someone without a warrant (and not merely use force):

Felonies:
Police- Reasonable grounds to suspect D committed a felony.
Private C- Felony must have in fact been committed and reasonably suspects D committed it.

Misdemeanors:
Police- Occurred in the presence of the police officer
Private C- Occurred in the presence of the person AND it was "breach of the peace"

[Guchster]

i'm being dumb. i think i meant that i got the stove from like a best buy or something. but i stopped paying for it. so if it IS a fixture, does the landlord get to keep it? or does best buy get it back?

Bestbuy gets it back if: (1) It was the PMSI creditor; and (2) it recorded within 20 days after the stove was affixed to the land.

[harmonep07]

i'm being dumb. i think i meant that i got the stove from like a best buy or something. but i stopped paying for it. so if it IS a fixture, does the landlord get to keep it? or does best buy get it back?

Bestbuy gets it back if: (1) It was the PMSI creditor; and (2) it recorded within 20 days after the stove was affixed to the land.

Does best buy sell stoves?

[thetashster]

i'm being dumb. i think i meant that i got the stove from like a best buy or something. but i stopped paying for it. so if it IS a fixture, does the landlord get to keep it? or does best buy get it back?

Bestbuy gets it back if: (1) It was the PMSI creditor; and (2) it recorded within 20 days after the stove was affixed to the land.

Does best buy sell stoves?

umm i got my dishwasher there. i think they do!

[harmonep07]

Is anyone bothering to remember the different names in NY for future interests? I know NY abolished the distinction between contingent remainders and executors interests and just calls them remainders subject to condition precedent and a FSSCS is a "fee on condition" in NY.

[harmonep07]

i'm being dumb. i think i meant that i got the stove from like a best buy or something. but i stopped paying for it. so if it IS a fixture, does the landlord get to keep it? or does best buy get it back?

Bestbuy gets it back if: (1) It was the PMSI creditor; and (2) it recorded within 20 days after the stove was affixed to the land.

Does best buy sell stoves?

umm i got my dishwasher there. i think they do!

Dishwasher? You fancy.

[Guchster]

umm i got my dishwasher there. i think they do!

You bought a dishwasher? That's like serious adulthood. Did you design your kitchen or something?

[harmonep07]

Also, strangest NY minutiae that I've seen on NYMC: a tenant who holds a lease of indefinite duration and notifies LL of intention to quit premises is liable for double rent if he fails to deliver possession.

[thetashster]

umm i got my dishwasher there. i think they do!

You bought a dishwasher? That's like serious adulthood. Did you design your kitchen or something?

i got a house when i moved to MA. it's yellow with green trim (cuz i'm a packer fan). anyway, the dishwasher was a gift from my dad.

don't worry. i'm nowhere near adulthood. i rarely wear pants, and i watch the Jersey Shore whenever I'm having a life crisis.

[thetashster]

Also, strangest NY minutiae that I've seen on NYMC: a tenant who holds a lease of indefinite duration and notifies LL of intention to quit premises is liable for double rent if he fails to deliver possession.

--ImageRemoved--

[turquoiseturtle]

Can someone help me out with multiple issues in essay question 75?

Even after reading both answers and seeing them both say "NY case law created a presumption of negligence in situations where a stopped vehicle is rear-ended by another motorist" I just have no idea where they're getting that from. I don't have it in my torts notes and I can't find it in the CMR. I can commit that random presumption to memory, but it makes me worried I'm missing other things.

Same with all the info on DWIs. I see in the CMR distinctions part info about vehicular manslaughter, but just nothing about the general offense of DWI. Again, from life, I know what a DWI is, but are those essays just making stuff up or did I miss it somewhere?

Is anyone bothering to remember the different names in NY for future interests? I know NY abolished the distinction between contingent remainders and executors interests and just calls them remainders subject to condition precedent and a FSSCS is a "fee on condition" in NY.

hahahahahaha. Absolutely not.

[harmonep07]

Can someone help me out with multiple issues in essay question 75?

Even after reading both answers and seeing them both say "NY case law created a presumption of negligence in situations where a stopped vehicle is rear-ended by another motorist" I just have no idea where they're getting that from. I don't have it in my torts notes and I can't find it in the CMR. I can commit that random presumption to memory, but it makes me worried I'm missing other things.

Same with all the info on DWIs. I see in the CMR distinctions part info about vehicular manslaughter, but just nothing about the general offense of DWI. Again, from life, I know what a DWI is, but are those essays just making stuff up or did I miss it somewhere?

For some reason I remember this from somewhere but I don't have it in my notes either.

[thetashster]

Can someone help me out with multiple issues in essay question 75?

Even after reading both answers and seeing them both say "NY case law created a presumption of negligence in situations where a stopped vehicle is rear-ended by another motorist" I just have no idea where they're getting that from. I don't have it in my torts notes and I can't find it in the CMR. I can commit that random presumption to memory, but it makes me worried I'm missing other things.

Same with all the info on DWIs. I see in the CMR distinctions part info about vehicular manslaughter, but just nothing about the general offense of DWI. Again, from life, I know what a DWI is, but are those essays just making stuff up or did I miss it somewhere?

Is anyone bothering to remember the different names in NY for future interests? I know NY abolished the distinction between contingent remainders and executors interests and just calls them remainders subject to condition precedent and a FSSCS is a "fee on condition" in NY.

hahahahahaha. Absolutely not.

gonna second the absolutely not. but also, that's res ipsa. that's probably how they're getting to that.

it's the type of thing that doesn't happen unless you're being negligent and also you haven't been able to eliminate any other causes.
res ipsa can be rebutted though. so unless you can say "i had a heart attack unexpectedly with no history of them ever" etc. also if you rear-ended you were probably following too closely and/or going too fast to stop in time.

[harmonep07]

Can someone help me out with multiple issues in essay question 75?

Even after reading both answers and seeing them both say "NY case law created a presumption of negligence in situations where a stopped vehicle is rear-ended by another motorist" I just have no idea where they're getting that from. I don't have it in my torts notes and I can't find it in the CMR. I can commit that random presumption to memory, but it makes me worried I'm missing other things.

Same with all the info on DWIs. I see in the CMR distinctions part info about vehicular manslaughter, but just nothing about the general offense of DWI. Again, from life, I know what a DWI is, but are those essays just making stuff up or did I miss it somewhere?

Is anyone bothering to remember the different names in NY for future interests? I know NY abolished the distinction between contingent remainders and executors interests and just calls them remainders subject to condition precedent and a FSSCS is a "fee on condition" in NY.

hahahahahaha. Absolutely not.

gonna second the absolutely not. but also, that's res ipsa. that's probably how they're getting to that.

it's the type of thing that doesn't happen unless you're being negligent and also you haven't been able to eliminate any other causes.
res ipsa can be rebutted though. so unless you can say "i had a heart attack unexpectedly with no history of them ever" etc. also if you rear-ended you were probably following too closely and/or going too fast to stop in time.

I thought res ipsa also, but res ipsa is not a presumption. It's a permissible inference for the jury to make but doesn't have to, whereas a presumption, if not rebutted, requires judgement for the party it favors.

[turquoiseturtle]

Can someone help me out with multiple issues in essay question 75?

Even after reading both answers and seeing them both say "NY case law created a presumption of negligence in situations where a stopped vehicle is rear-ended by another motorist" I just have no idea where they're getting that from. I don't have it in my torts notes and I can't find it in the CMR. I can commit that random presumption to memory, but it makes me worried I'm missing other things.

Same with all the info on DWIs. I see in the CMR distinctions part info about vehicular manslaughter, but just nothing about the general offense of DWI. Again, from life, I know what a DWI is, but are those essays just making stuff up or did I miss it somewhere?

Is anyone bothering to remember the different names in NY for future interests? I know NY abolished the distinction between contingent remainders and executors interests and just calls them remainders subject to condition precedent and a FSSCS is a "fee on condition" in NY.

hahahahahaha. Absolutely not.

gonna second the absolutely not. but also, that's res ipsa. that's probably how they're getting to that.

it's the type of thing that doesn't happen unless you're being negligent and also you haven't been able to eliminate any other causes.
res ipsa can be rebutted though. so unless you can say "i had a heart attack unexpectedly with no history of them ever" etc. also if you rear-ended you were probably following too closely and/or going too fast to stop in time.

So the specific facts in the essay mean that res ipsa isn't necessary. Driver #1 is stopped at a red-light. Driver #2 rear-ends him. #2 straight up tells the cop he wasn't looking at the road and was fiddling with the radio. So, since I didn't know about the presumption, it would've been easy to write a negligence essay without the presumption with those facts. Really it just worried me that both those essays mentioned it, and I have no mention of it in my notes at all.

[encore1101]

i'm being dumb. i think i meant that i got the stove from like a best buy or something. but i stopped paying for it. so if it IS a fixture, does the landlord get to keep it? or does best buy get it back?

If it was a fixture, then the landlord will be able to keep it. So determining whether its a fixture or a chattel is the initial determination that would then dictate the outcome.

I remember this question. The answer was the bank that provided you the loan to purchase the stove. The reason being is that there's nothing to indicate that it was intended to be a permanent fixture. If it wasn't intended to be a fixture, its a chattel.

In order to determine if it was intended to be a permanent fixture, look at primarily, was there anything in writing (there probably will never be on the bar), whether the item can be removed from the property without permanently damaging the property. Since there's nothing in the facts to indicate either, as long the tenant isn't a holdover tenant, then he would be able to remove the chattel. However, since the bank holds a security interest in the stove, they can repossess it.

Also, tenants are "favored" (not as strong as "presumed," but a finger on the scale, to use a law professor idiom) that anything they add to the premises is meant to be a chattel and not a fixture. Of course, obvious exceptions would be things like new countertops.

[sarahh]

Is anyone bothering to remember the different names in NY for future interests? I know NY abolished the distinction between contingent remainders and executors interests and just calls them remainders subject to condition precedent and a FSSCS is a "fee on condition" in NY.

I wrote it down, but I do not think it is going to happen. I can barely remember the MBE names. The only thing I remember is that NY feels very strongly about calling alimony "maintenance."

[PennBull]

Me with Real Property Minutiae:



I know general tenancy shit and what creditors and mortgagees can get to. I know easements and covenants like yeah. I know recording statutes and priority.

but if you wanna come at me with RAP and executory interests and random as fuck mortage law, you can fuck right off

[sarahh]

i'm being dumb. i think i meant that i got the stove from like a best buy or something. but i stopped paying for it. so if it IS a fixture, does the landlord get to keep it? or does best buy get it back?

Bestbuy gets it back if: (1) It was the PMSI creditor; and (2) it recorded within 20 days after the stove was affixed to the land.

Is this rule applicable here? I thought that was the rule when there was a floating lien vs. PMSI, and the security interest was in equipment. A landlord would not have a floating lien.

[Guchster]

i'm being dumb. i think i meant that i got the stove from like a best buy or something. but i stopped paying for it. so if it IS a fixture, does the landlord get to keep it? or does best buy get it back?

If it was a fixture, then the landlord will be able to keep it. So determining whether its a fixture or a chattel is the initial determination that would then dictate the outcome.

I don't think that's correct (although it could be in certain cases).

This is the right answer is it was: (1) a non-PMSI loan and (2) if the mortgage was recorded before the security interest.

But even fixtures are given priority to the creditor (even a third party creditor) when it is a PMSI--as long as recordation happens in 20 days. UCC § 9-334.

[Guchster]

i'm being dumb. i think i meant that i got the stove from like a best buy or something. but i stopped paying for it. so if it IS a fixture, does the landlord get to keep it? or does best buy get it back?

Bestbuy gets it back if: (1) It was the PMSI creditor; and (2) it recorded within 20 days after the stove was affixed to the land.

Is this rule applicable here? I thought that was the rule when there was a floating lien vs. PMSI, and the security interest was in equipment. A landlord would not have a floating lien.

Not just floating liens--any kind of liens (including mortgages). Page 68-69 of the Contracts MBE outline.

ETA:

Here is the portion of the outline so you can read it yourself: (shit posted wrong one)

Suppose Landowner purchases a furnace from Seller and installs it in her house. She owes a balance on the purchase price of the furnace, and therefore grants Seller a security interest in the furnace (in accordance with Article 9 of the Uniform Commercial Code (“U.C.C.”)). Suppose further that Landowner also executes a mortgage on her house, to Mortgagee.

If Landowner subsequently defaults on her payments, both on the furnace and the house, is Seller or Mortgagee entitled to priority? (Same issue where Landowner sells the house without mentioning the security interest.)

Normally, the rule is that whichever interest is first recorded in the local real estate records wins. (Thus, if the chattel security interest was recorded first, it constitutes “constructive notice” to all subsequent lenders or purchasers.) However, an exception allows a “purchase money security interest” in an affixed chattel (here, the interest given Seller to secure payment on the furnace) to prevail even over a prior recorded mortgage on the land, as long as the chattel interest is recorded within 20 days after the chattel is affixed to the land. [U.C.C. §9-334]
The document used to record the chattel security interest is known as a “fixture filing.” (This is a separate instrument from the “financing statement,” which is required to be filed to perfect the chattel security interest in the first place.)

[PennBull]

Properly recorded PMSIs always have priority over landlords. /discussion

[turquoiseturtle]

Properly recorded PMSIs always have priority over landlords. /discussion

Arguable whether you even need to record, because of the automatic perfection of consumer goods in the hands of consumers. In my secured transactions class the prof emphasized always always making a fixture filing regardless of the type of asset though.

Also, same advice as was given to me yesterday, think this is probably getting too complicated. All the secured transactions problems I've encountered on the essays have been verrrryyy simple. Like extremely simple. Mostly "first in time, first in right" and testing that you know there has to be attachment and perfection. I haven't seen a single fixture filing question (but admittedly haven't read all the essays).

[PennBull]

Properly recorded PMSIs always have priority over landlords. /discussion

Also, same advice as was given to me yesterday, think this is probably getting too complicated. All the secured transactions problems I've encountered on the essays have been verrrryyy simple. Like extremely simple. Mostly "first in time, first in right" and testing that you know there has to be attachment and perfection. I haven't seen a single fixture filing question (but admittedly haven't read all the essays).

Exactly. And on the MBE, if it's super complicated, you're going to narrow it down to two possible answer choices. You're going to get 50% of those right. There will be like, 10 super complicated property/contracts questions.