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603 Cards in this Set
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- Back
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what is equitable division |
Equitable division - involves division of marriage property and pre-marital property |
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John contributes 200,000 of premarital assets for home. Wife contributes 15,000 of premarital assets, how are assets divided if home is worth 280,000? |
15 and 200 are premarital so they go back to premarital state. 65 is divided equitably |
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John has affair but seeks counseling and wife condones. Will this impact distribution of marital assets? |
No. When there is condonation there is no longer a problem. |
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When should attorney's fees be awarded?
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when the financial challenges necessitate |
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Two spouses have fairly similar earning potential and retirement accounts. Are attorney fee award appropriate? |
No it would most likely not be appropriate |
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State governments are prohibited from interfering with the practice of religion. What are the two buzz rules?
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Don't pass law "respecting the establishment of religion"Prevent "excessive entanglement"
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Is a court prevented from enforcing a neutral law, such as gun use? |
No neutral application is ok - ie smoking weed |
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What contract rule should flash to mind when there is a contract which takes longer than a year?
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Statute of frauds
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Are liquidated damages enforceable in GA?
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Yes, provided the amount of damages are hard to calculate |
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What is duress?
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Duress is present when a party to a k has no reasonable alternative but to assent
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If it involves some sort of farming out of the work ---- what rules should you start thinking about?
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Delegation |
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If asked how to handle a situation as a lawyer, |
Play hardball
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What is substantive due process?
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Principle which allows federal courts to protect certain fundamental rights from gov intf under due process (5,14th), of depriving life liberty or property without due process
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Is a taxi cab reg going to fly under the substantive due process? |
Most likely yes, when, driving a taxi isn't a fundamental right, causing the test to be rationional basis
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principal becomes liable to 3p through acts of principal's agent if |
agent and principal both consent and agent is sbject to principal's control |
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does an agency assignment require a writing |
no, unless the agreement would otherwise need a writing ie to sell a home. or for more than a year etc |
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does an agency require consideration |
no |
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methods of creating authority in agency |
express and implied |
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four substitutes for actual authority |
apparent (looks like it) ratification agency by estoppel inherent agency power - inclemental to some of agents duty |
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if an agency situation exists, when is a principal liable to 3p |
alaways |
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is agent liable to 3p |
generally no, unless also party to k |
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considerations agency + tort |
indepedent contractor (principal generally not liable unlss ultrahazardous or principal hired someone incompetently) w/ scope of employment
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key issues in partnership |
formation property interests mangement relations w/ 3p dissociation and dissolution |
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to form a partnership look to what factors |
intent control sharing profits
(capital investment --- not required) |
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what is a joint venture |
a partnership for a specific purpose |
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if purchased with partnership assets --- whose property is it |
rebuttably partnership property |
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if purshased with seperate property with no mention of the partnership --- whose property is it |
rebuttably seperate property |
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in absence of a partnership ---- how are profits split |
equally |
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in absence of an agreement is someone that runs the day to day operations entitled to special compensation |
no --- in the absence of an agreement -- profits are split equally |
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in the absence of an agreement -- how are votes added up |
equally |
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what duties are owed to the other partners |
duty of care duty of loyalty |
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georgia uses what body of partnership law |
upa |
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does georgia use rupa |
no |
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does upa define the duty of loyalty or the duty of care |
no |
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as it relates to the books --- what does each partner have a right to?? |
formal accounting |
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absent an agreement - admitting a new partner requires _____________ agreement |
unanimous |
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to determine what duty is owed from a partner to a third party apply ______ principles |
agency |
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what sort of liability exists for partnership obligations |
partnership is liable the partners are jointly and severally liable |
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partnership conveyance of real property |
if name on title and conveyance match --- title passes |
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under upa dissolution is used to denote any change in the partnership caused by |
a partner ceasing to be associated in the carryin on of the business |
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causes of dissolution |
a partner's express will end of term or accoplishment of specific purpose partner's death a partner's expulsion |
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after dissolution --------- who is paid first |
creditors |
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LLP is what |
general partnership, but one in which the partners are not liable for partnership obligations --- whether arising in contract or in tort, simply by reason of beind "partners" |
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LLPs must do what to be legit |
must file have LLP or variation in their name |
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what are limited partnerships? |
a partnership having one or more general partners (limited for the entire partnership) and limited partners (only liable for investment) |
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llp profit distributions |
absent an agreement -- LLP profits are distributed on the value of capital contributions |
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what does Georgia's Profiessional negligence statue require |
t, Georgia's Professional Negligence Statute requires that in order |
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what does the expert statute require? |
The Expert Witness Statute requires that if it is an action for medical malpractice, the affiant mustbe licensed in the state where he practices, plus either 1) practiced the specialty as to which he is testifying for three of the last five years, or 2) taught at a duly accredited |
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does expert statute apply to ordinary negligence? |
no |
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state of limitations on a personal injury claim in ga is |
2 years |
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statute of limitations on med mal in ga is |
2 years |
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the statute of repose on med mal in ga is |
5 years |
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Georgia hasspecial statutes that allow a plaintiff to dismiss a defective complaint after the statute of limitations has run. When is this allowed? |
To do this, it must be dismissed before any order on the merits or the first witness is sworn in. Here, Mr. Smith dismissed the complaint before the court ruled on the issues. Plus, no counterclaim by the defendants had been filed that requires court approval for dismissal. |
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what is the impact of plaintiff dismissing and refiling |
According to Georgia's dismissal and renewal statutes, the earlier claims are dismissed without prejudice. Practically, the plaintiff has one dismissal as a matter of |
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statutory basis of pj in ga |
presence when served domicile when served consent ga long arm statute (bus or tort in ga)
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the federal pj test - use language |
Does D have such MINIMUM CONTACTS with the forum so that exercise of jurisdiction does not offend traditional notions of FAIR PLAY and SUBSTANTIAL JUSTICE |
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factors to consider in federal pj test |
purposeful availment foreseeability relatedness of claim convenience state's intrest |
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what does subject matter jurisdiction mean |
what is the proper court to bring this |
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two main ways for smj (fed) |
diversity (full +75,000) or federal law |
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when does eerie come up? |
only in diversity cases |
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what does the whole eerie situation involve? |
do we apply state or federal - apply substantive state and procedural state issue |
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what are substantive areas |
elements of the claim choice of law rules statutue of limitation |
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tolling rules in ga |
minority until 18 (unless me mal child under 5 tolls until 5) |
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sol in contracts |
6 for goods 4 oral contracts 8 improvements rp 4 rp 4 pp 1 rep |
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if diversity is one way to get a case into federal court --- what is the other way |
federal question cases |
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what is the well pleaded complaint rule |
if complaint well pleaded (ie w/out fluff) would it arise under federal law? |
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what is supplemental jurisdiction? |
claim that wouldn't necessarily make it in on its own (state claim) but involves "common nucleus of operative fact" |
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what does superior court have exclusive jurisdiction over |
felony criminal cases divorce affirmative equitable relief cases directly affecting title |
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venue for piece of land |
where the land sits |
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ga resident venue |
where d resides |
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non resident venue |
where service was made claim arose personal injury divorce where p resides |
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service of process in georgia |
sheriff civilian non party civilian appointed by court |
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methods of service |
personal or substituted - serve with affidavit if you cant find them (ga and fed) |
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rule 11 in georgia |
only applies to pleadings, sanctions not available - only requires an attorney to read it |
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professional malpractice in georgia |
must give affidavit of expert setting forth with affidavit at the time |
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what is intervention |
where absentee wants to join a pending suit and bring himself as a plaintiff |
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what is interpleader |
where one holding property forces all potential adverse claims into a single lawsuit |
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two different types of interpleader |
rule 22 (full diversity) rule 1335 (min diversity) |
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when in ga can you dismiss |
before first witness is born |
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after default to set aside how long to re-file |
six months |
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what type of collateral estoppel (issue preclusion) is allowed in georgia |
defensive, but not offensive |
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What is the standard under the dormant commerce clause?
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1- does it discriminate against out of stater |
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what is the governing authority for commercial paper? |
article 3 |
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commercial paper involves notes and drafts --- what is a a note |
a promise to pay: I promise to pay to the order of Peter Payee the sum of $100 |
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comercial paper invovles notes and drafts -- what is a draft? |
order to pay:
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how can you remember draft as an order |
when you get drafted into the military - you get ordered around
OR
if you are drafted it is an order not an option |
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a draft involves three parties --- what are they? |
a drawer drawee and payee |
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what is a drawer |
giving order |
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who is payee |
the person standing to receive |
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when drawee is a bank and it is payable on demand then the draft is a _________ |
check |
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what is initial delivery of an instrument |
issuance |
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is "non-issuance" a defense? |
yes |
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what is the main benefit of a negotiable instrument |
hidc takes free of many claims / defenses |
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if non-negotiable, what body of law takes over |
contract law |
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what are the requirement for a negotiable instrument |
writing signed by maker or drawer promise to pay or order to pay unconditional a fixed amount in money no other unauthorized promise or order on demand or at a definitie time to order or to bearer |
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does an undated instrument violate the (on demand or at a definite time) requirment? |
no - treated as on demand |
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is "I promise to pay Paul" negotiable? |
no does not contain order or bearer language |
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what's one key difference between the order and draft |
order - identifiable person (i'm going to order around a specific person) bearer - whoever is bearing |
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how does one negotiate an order / bearer |
order - delivery plus proper indorsement
bearer - delivery alone |
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what is a blank endorsement? |
just signing without specifying to who it should be given, i.e., Craig Lawrence Jr. |
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what impact does a blank endorsement have? |
converts paper into bearer paper |
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if peter piper signs a blank endorsement and then the check is stolen by theif -- is theif a holder |
yes - a holder is a person in possession of bearer paper |
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can theif negotiate it in turn |
yes, because one could be a hidc w/ out notice |
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same scenario except --- no blank endorsement -- can it be negotiated |
no - when order paper contains forged endorsement - none of the parties have good title |
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what is a holder in due course |
holder who gives value in good faith w/o notice of defenses or irregularities |
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to qualify as good faith under hidc requirements, what needs to be shown? |
subjective pluse reasonable standards of dealingw |
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when is a check deemed overdue |
90 days |
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what is the shelter rule |
take the same rights from transferror - so you can take "shelter" in transferror's hdic status even though you have notice |
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does a hdc take subject to real defenses |
yes |
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what are real defenses |
infancy null transactions (incapacity, duress or illegality) |
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what are two types of liabilty to distinguish between |
underlying obligation instrument liability |
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when is an indorser liable |
only when maker or drawer has dishonored agreement |
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an indorser is liable after an instrument has been _________ to the maker or drawee, that party has ______ and _____________ has been given |
presented dishonored notice of dishonor |
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is a signature by an agent effective |
if authorized |
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what is the properly payable rule? |
shifts risk away from customer to bank - bank can only charge if customer orders it |
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the risk of a forged signature generally is pushed back up the chain of collection to the |
first honest party to deal with the dishonest party |
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what are the transfer warranties? |
PETE (person entitled to enforce) signatures are authentic instrument has not been altered no defense or claim is good no knowledge of any insolvency |
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joe blow has a check from grocery store which is stolen fraudulently indorsed cashed at browns taken to first bank then second bank --- who bears loss |
browns - because they were last one to deal with mischevious party |
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if your duped by an imposter - is the imposters indorsement valid? |
yes - thus if e bunny shows up and endorses as e bunny then e bunny is in luck -- should have made more of an inquiry |
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what is the previous rule called |
imposter rule |
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john has bad credit and is considering putting together a deal with a seller trying to get out from under a mortgage. Mortgage requires consent if any portion is sold. If you set up the loan as taking "subject to", do you have to notify the mortgage bank? |
yes - this would be selling a portion of the interest |
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john has bad credit and is considering putting together a deal with a seller trying to get out from under a mortgage. Mortgage requires consent if any portion is sold. If you set up the loan as taking "bond for title", do you have to notify the mortgage bank?
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yes - this would be a sale of equitable title, and thus requiring notice under the mortage documents |
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how to set up a professional responsibility issue on the georgia bar |
the issue is whether an attorney can handle such matters under the Georgia Rules of Professional Conduct |
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in any "give advice" question --- think about what? |
step back and look broader than the question ---- what does that party need to understand for sure-- |
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someone is not following a court order --- what do you file? |
a contempt of court |
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what are the elements for equitable relief |
1) no adequate remedy at law 2) the injunctive relief is fasiable 3) there are no defenses |
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if a sheriff is bad mouthing a judge, what are the possible consequences |
civil defamation criminal contempt of court |
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if need something done --- ie someone removed from property or need enjoyment of property --- what should you be thinking about? |
equitable action |
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what is indirect contempt? |
a person who makesa statement out of court as to undermine the court's power is in indirect contempt. indrect contempt occurs when the person acts or speaks outside of the presence of the court that directly effects the court |
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can a georgia attorney have a client waive all future conflict of interests? |
no - for a conflict of interest waiver to be valid - it must put the clients on notice of all of the specific implications of the conlict - this is not possible with an overly broad all conflict waiver |
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in a conflict of interest situation --- does it matter that one of the companies is a subsidiary |
no!! for purposes of a conflict of interest --- roll everything up into the parent |
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if I am representing a sub and parent get's sued by plaintiff regarding business practices, can i represent plaintiff? |
if the subject matter involved something else, it could be be waived -- but when it involves business practices it cannot be waived --- this is an impermissible |
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what does it take to form a corporation? |
people (incorporators) paper (article of incorporation_ act (if secretary state accepts - conclusive proof) |
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what laws govern the internal afairs of a corporation |
state where incorporated --- make sure and look where it is incorporated |
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comapny is incorporated in georgia - which state governs the internal affairs |
georgia |
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what are requirements for an S-Corporation |
no more than 100 shareholders no foreign shareholders ONE CLASS OF STOCK |
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what is a de facto corporation |
parties made good faith attempt to comply with incorporation statute
acting like we have a corporation |
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what is corporation be estoppel |
if we acted like there is a corporation --- must be estopped from denying there was a corporation |
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what does estoppel mean |
court prevent litigant from taking action that they would normally be allowed to take to avoid injustice |
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who adopts the bylaws |
the board |
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if conflict between bylaws and articles --- which controls? |
articles |
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how do you know if corporation is liable for pre-incorporation contracts |
if they were adopted |
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how long does an agreement to buy stock (subscription) last |
six months |
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what is par mean |
minimum issuance price |
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is the board's valuation conclusive |
yes --- if made in good faith... |
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what are pre-emptive rights? |
right of an existing shareholder to maintain her percentage of ownership by buying stock whenever there is an issuance "for money" |
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initial directors are typically listed on the articles - afterwards directors are typically selected at the |
annual shareholders meeting |
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failure to have required _____________ voids what happened at the meeting |
notice |
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is notice required for special meetings is notice required for regular meetings |
just for special meetings |
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directors and shareholder voting arrangments - are they valid |
valid for shareholders not valid for directors |
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what is a quorum |
the minimum number of people present for a meeting to be valid |
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after quorum is met, there is a second issue --- what is it? |
whether a majority of those present passed it (5/9 present) |
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a director owes the corporation a duty of care standard ---- what is it? |
(church planter: goodie entrepreneur) must act in good faith and do what a prudent person would with regard to her own business |
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when will a director be liable for nonfeasance (doing nothing)? |
when nonfeasance actually caused damages (this is ususally very tough to show) |
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when will a director be liable for misfeasance? |
when someone does something stupid and causation is more clear |
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what is the business judgment rule (BJR) |
court will not second guess a good faith, informed and rational basis business decision
(essentially) -- you can't guarantee success |
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director is liable if he USURPS a corporate opportunity --- what can you do to avoid being USURPED???? |
1) tell the board about it 2) wait for board to reject it |
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list all different way to screw directors |
-violation of duty of standard of care (misfeasance; non-feasance) -ultra vires acts -improper distributions -improper loans
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who sets the officiers and officer compensation |
the board |
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what are default idemnification procedures
- not allowed - mandatory - permissive |
1) not allowed - where shown to screw biz 2) mandatory - if win a judgment 3) permissive - neither 1 or 2 |
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do shareholders manage the company |
no that's the role of the board of directors |
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can shareholders eliminate the board altogether and merge shareholders and board of directors |
yes --- IF NOT PUBLICLY TRADED |
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two elements of piercing the corporate veli and two scenarios for piercing the corporate veil |
elements: 1) abused the privelege of incorporating 2) unfair to not pierce
scenarios: 1) alter ego (intermingling) 2) undercapitalization |
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what is a derivative suit |
shareholder is bringing suit on behalf of the corporation -- ask yourself could the corporation brought this suit??? |
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which shareholders have the right to vote? |
record shareholder as of the record date |
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is treasury stock voted |
no |
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what are the two main types of voting proxies |
default proxy (11 months) proxy coupled with an interest (irrevocable) voting trust (10 year maximum) |
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if there is a problem with notice for a shareholder meeting --- what are the two ways of waiviing --- |
express (writing) implied (showing up) |
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if quorum is present, you need a majority of
1) number of stock determined by votes present OR 2) number of stock determined by those that actually vote |
2 |
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unless articles say so cumulative voting (casting your nine votes ofr a particular board member) is |
not allowed |
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generally any shareholder can request to inspect books --- what is the procedure for doing so |
make written demand stating documents desired |
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when are distributions to be sent out |
at the board's discretion |
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dividends of $400
100 common shares |
4/ share |
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dividends of $400
100 common
20 preferred ($2 preference) |
common $3.5
prefered $2 |
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dividends of $400
100 common
20 preferred participating ($2) |
common $3
preferred participating $5.5 |
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dividends of $400
100 common
20 prefrred cumulative ($2)
no dividends for 3 years |
8 x 20 = 160
240 left distributed to common at $2.4/share |
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what four things do we need for a fundamental corporate change |
board act adopting submit proposal to shareholders shareholder approval deliver document to secretary of state |
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a shareholder has a right of apprasial for a merger, transfer of all assets, transfer of shares (but not in public exchange corp); to perfect this right appraisal -- what must be done? |
file with corp written notice abstain or vote against make written demand to be bought out |
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is shareholder approval required for merger of a sub into a parent |
no --- this is called a short form merger |
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SECURITIES LAWS!!!
what is 10b-5 generally? |
prohibits fraud or misrepresentation in connection with pruchase or sale of any security |
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types of 10b-5 |
1) misrepresentation 2) insider trading 3) tipping
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10b-5 has a materiality requirement --- what does that mean? |
one a reasonable investor would consider importan in making an investment decision |
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16b covers |
selling within a six month period (have to give up profits) |
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husband dies in a tragic accident' does ex-wife have a claim |
no |
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husband dies in tragic accident does current wife have a claim?
if so, what is it? |
yes: wrongful death and loss of consortium |
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husband dies in a tragic accident what claim would the estate have? |
survival claims - those that would have existed if husband never died |
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husband dies in tragic accident what claim do kids have? |
most likely goes to the parent unless it goes to step parent |
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loss of consortium is only allowable for the time period that |
the spouse is alive |
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in secured transactions, the collateral's type is determined by |
its primary use by debtor at time secruty interest is attached |
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goods are ______________ at the time security interest attaches |
moveable |
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a type of goods is consumer goods. what are consumer goods |
goods used fr personal family or household purposes |
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what are other types of goods beside consumer goods |
equipment farm products inventory |
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account |
right to payment which is not evidenced by a writing |
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chattel paper |
a writing or writings which evidence both a monettary obligation and security interest in specific goods |
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what does pmsi mean |
it is either 1) retained by seller or 2) taken to enable the debtor to acquire collateral |
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attachment makes the security interest |
enforceable against the debtor |
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what are the requirements for attachment? |
signed agreement that describes the collateral
(signed description is attachable) |
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what might subsitute for typiccal rquirements for attachment |
control |
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the description of the collateral must state the types of collateral give a few examples |
1 CD 2 - goods 3 - farmhouse equip |
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if the security agrement is to cover after acquired property, it must |
so provide through an after acquired clause |
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in secured transactions --- after attachment --- what is the next step?? |
perfection |
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one of the ways to perfect is through a filing a financing statement, what are the other ways |
perfection under the certificate of title statute perfection by possession pmsi consumer good (automatically) |
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does the debtor have to authenticate the financing statement? |
no |
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what are the requirements for a filing statement? |
legal name of debtor individual versus organization name and address description of the collateral |
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where to file |
if fixture --- minerals or timber (land records) in the county where land is located
all other --- secretary of state |
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perfection for vehicle |
notation on the security interest on the certificate of title |
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how are pmsi consumer goods perfected? |
automatically |
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priority of interest - what is the most basic priority of interest rule |
perfected security interest has priority over unperfected security interest |
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between two perfected security interests, who has priortiy? |
the first to file or perfect has priority |
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collateral pmsi has super priority if |
perfected w/in 20 days after debtors receipt of possession |
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inventory pmsi has super priority |
perfects before creditor receives possession of collateral ( no 20 day grace period) notifies existing security interest |
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between security and collateral pmsi which one is more strict? |
inventory pmsi |
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between two pmsi first to file wins, except |
seller pmsi trumps enabling pmsi |
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if you offer an additional amount of money in addition to the original loan -- it relates back --- what does that mean |
it has the same security interest / priority as the original loan |
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what are lien creditors? |
creditors who attached indvidually levied attachement bankruptcy trustee debtor in possession |
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a security interesst that s perfected before lien holder's __________ is ahead of the lien creditor |
priority date sate by attachment or bankruptcy date |
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what are the basic rules on buyer versus security interested |
if secured buyer takes subject to w/o need to refile if unperfected can take w/o knowledge of the security interest (good faith standard) |
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special buyer rules |
bioc - buyer in ordinary course takes free of security interest that they know garable sale exemption - can take free of a security interest |
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what is a weird issue that comes up in a secured interest situation? |
fixtures |
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what are the factors for determinging whether the collateral is a fixture |
parties intent degree to which goods were affixed whether can be removed w/ o injury |
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where is a fixture filed |
in real estate records where a mortgage would be filed |
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the landlord or morgagee has priority on fixtures UNLESS |
file before landlord or mortagee be a pmsi and file w/ 20 days |
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default is a critical concept w/in secured transactions - the secured party can take w/ out self helf if it can be done w/o breach of the peace - what is breach of the peace? |
enter building w/o consent breaking lock police officer that doesn't have writ abusive threats or abusive language |
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following act do not constiute a breach of the peace |
rep of car on curb entry through unlocked gate repo in dreway w/no protest |
|
|
sale of the property can be public or private - debtor needs |
notice |
|
|
the big issue in disposition of the collateral is |
was the notice sufficient |
|
|
a typical notice statement has a description of the property, how it is being disposed, time and place of sale etc., but a consumer notice must also include |
description of recipient liability telephone number (amount to redeem) telephone number (obtain additional info) |
|
|
the second big issue as it relates to the disposition of the property is whether it is __________ |
commercially reasonable |
|
|
what does commercially reasonable mean? |
as t method manner time place and terms |
|
|
cosingments are covered by |
article 9 |
|
|
to be protected, consigner must |
file a financing statement - unless it is super small transaction |
|
|
if a transaction is in subtance a grant of a security interest -- it will be treated as a _____ |
security interest |
|
|
what is the time period length restriction for a georgia non-compete clause |
2 years |
|
|
what might a judge do if a non-compete is unreasonable |
blue pencil it |
|
|
how does georgia's anti - lapse statute work |
Georgia's anti lapse statute provides that a |
|
|
what is a pre-termitted child? |
A pretermitted child is one born after a will is executed. |
|
|
what is the special request a minor child may request if their parent passed away? |
Georgia law provides that a minor child may request, within 2 years of the decedent's death, |
|
|
is georgia's anti-lapse statute broad? |
Georgia has a very broad anti-lapse statute |
|
|
john is a non-biological child ---- does john have the ability to inherit from stepdad where stepmom was listed in the will and stepmom predeceased |
generally a non-biological child would not inherit ---- but there is anti lapse statute where an issue steps in the place of the deceased person so that it does not lapse |
|
|
Will says: I give, devise and bequeath the rest, residue and remainder of my estate, including my collection
Afterwards, a son is born, does he collect?
|
Most likely so. The term daughters is likely to be considered an ambiguous term under the will which the court will need to hear parol evidence to determine whether it was a class gift. A court would likely find this to be a class gift to Abe's children as his children were daughters at the time |
|
|
What is the rule on implied partial revocation. |
Under Georgia law, certain
|
|
|
what is a trust? |
an arrangement under which the trustee holds legal title to property for the benefit of the beneficiaries |
|
|
what are the requirements for a trust? |
1) creator 2) delivers 3) legal title of trust assets (the res) 4) to trustee 5) for benefit of beneficiaries |
|
|
if someone says --- it is my wish and desire to use it for a certain purpose --- is this a trust? |
most likely no - can't be willy nilly |
|
|
what is the "res" in trust law |
the principal / subject matter of a trust -- can't have a trust w/ out a res |
|
|
can an expectancy be a res -- qualifying for a trust? |
no --- can't make a trust out of a mere expectancy |
|
|
can a trust fail for want of a trustee |
no |
|
|
if someone has passed away and the will spells out beneficiary, but no assets have been distributed... can a trust be set up? |
yes - more than a mere expectancy at this point |
|
|
a private trust must have ____________________ beneficiaries |
ascertainable |
|
|
if it says for my friends --- is this ascertainable? |
no |
|
|
if it says for my descendants -- is this ascertainable? |
most likely yes |
|
|
what is an honory trust |
paying someone to take care of dog --- is valid |
|
|
if the will gives a gift to a trust ---- is this ok? |
yes |
|
|
What is a totten trust? |
A Totten trust (also referred to as a "Payable on Death" account) is a form of trust in the United States in which one party (the settlor of the trust) places money in a bank account or security with instructions that upon the settlor's death, whatever is in that account will pass to a named beneficiary. For example, a Totten trust arises when a bank account is titled in the form "[depositor], in trust for [beneficiary]". |
|
|
is a totten trust revocable? |
yes |
|
|
are oral trusts valid |
if they are regarding non-land (SOF) and can be proved by clear and convincing evidence |
|
|
charitable trust must be in favor of ________________ |
reasonable large number of unidetnifiable beneficiaries |
|
|
if a charity no longer exists, courts will use |
cy pres (which means as near as possible) |
|
|
if trustee stops distributing, what can be done --- |
court can order it |
|
|
when trustee is given "absolute" or "uncontrolled" discretion, courts do/don't screw with them |
don't |
|
|
spendthrift clauses enforceable unless it is |
set up by me and they are my creditors |
|
|
main duties of a trustee |
duty of loyalty duty to invest prudently duty to proetect trust property duty of imparitality duty to account and inform |
|
|
options for beneficiary if there is a breach |
ratify sue for resulting loss |
|
|
beneficiareies can (early) terminate the trust if |
all beneficiaries consent and there is no further trust purpose |
|
|
core requirements for a will |
T must be 14 or over must sign will two attesting witnessess
|
|
|
are holographic wills valid in ga |
hell no |
|
|
what is the witness requirement in ga |
* your will must be attested and signed in your presence by at least two competent witnesses
|
|
|
is a will from another state valid in ga? |
if it meets ga requirements |
|
|
must the witnesses be disinterested |
yes |
|
|
what two elements must be satisfied to cancel a will? |
intent to revoke physical act |
|
|
if you order will to be destroyed and it never is is the will stil going to control? |
yes because there an act |
|
|
for revocation by another person to be valid it must be at |
their direction and in their presence |
|
|
if there is a codicil and it is slightly inconsistent what are the ramifications |
to the extent possible - it will be read together, but where not possible, the codicil will control |
|
|
divorce has what impact |
removes all provisions in favor of ex spouse |
|
|
what is depedendant relative revocation |
allows us to disregard a revocaton based upon or induced by premised on a mistake of law -- that but for mistake --- would have never done revocation |
|
|
what is a drr example |
crossing out 10,000 and putting 15,000 w/out following formailities of a wil |
|
|
what if you have 2 wills and destroy will 2 --- do you revive will 1? |
no you would need some formailities met |
|
|
can you reference another document |
yes if 1) in existance at time of reference 2) manifest intent to incorporate 3) must desribe with enough specificity |
|
|
what is a lapse? |
when beneficiary moved |
|
|
if estate is insolvent -- where do you start? |
start at the bottom and work up --- instestate, residuary, general legacy, demonstrative, specific devise |
|
|
what is georgia's rule on ademption |
a specific testamentary gift is adeemed or destroyed, wholly or in part, when the testator for any reason does not own the subject of such gift at death. |
|
|
what about stock that goes up |
stock splits get all dividends (get principal) |
|
|
what about acquired stock |
adeemed under common law |
|
|
what do you do in the case of latent ambiguity? |
extrensic evidence allowed to clear up latent ambiguity, if unsuccesful --- then it fails |
|
|
if you die and you are survived by a spouse and all children are from that spouse |
spouse gets 100% |
|
|
per stirpes with reprsentation means what |
a b c
d e
if a dies, d and e split 1/6 |
|
|
father walks out before being born and step dad never adopts -- can you inherit from either |
no unless adjudicated/ legitmatized for real father and/or
stepdad adopts |
|
|
apply simultaneous death act in georgia |
yes |
|
|
what about an advancement during the lifetime |
does not count unless contemporaneous writing and acknowledged by the heir |
|
|
what happens if will was written before marraige |
has no effect |
|
|
what is elective share |
1/3 netted out of expenses |
|
|
what about a child born after will |
gets intestate share |
|
|
can you renounce your share |
yes |
|
|
undue influence |
existence and exertion of the influence effect is to overpower the mind and will of the testator will would not have been executed by influence |
|
|
if a person keeps a residence in georgia, works in california and had their will drawn up in georgia --- what is the proper venue for the will |
In this case, the court will likely determine |
|
|
what is the status of a legal bequest to wife when wife has since been divorced and when wife is an interested party |
regardless gets jack |
|
|
what about son when will is questionable and it says to give money to ex-wife |
doesn't matter either get rid of will or help son through intestate |
|
|
what must one do to qualify as an executor |
A
|
|
|
what is an in terrorem clause |
basically if you contest the will - you're screwed |
|
|
attorney negotiates an employment agreement for company then is called by employee wanting to sue company -- can you get invovled?
VERY ADVERSE |
no |
|
|
does the situation regarding
attorney negotiates an employment agreement for company then is called by employee wanting to sue company -- can you get invovled?
change if attorney is at new firm? |
no |
|
|
attorney talks about prospecting limiting malpractice or holding onto files. allowable? |
no on either case |
|
|
prof rules of responsibility - how do you start essay |
ga rules of prof conduct govern investigated by state bar of ga and ga supreme court has final authroity |
|
|
can you sell a firm? |
yes if you cease private practice in that area sold in entirety written notice |
|
|
what is the rule regarding conflict of interest for former client |
can represent former client where interests are materially adverse unless former consents |
|
|
can't settle malpractice claim w/o first |
mentioning having indepedent counsel is appropriate |
|
|
imputation rule - generally firm is assumed to be imputed UNLESS |
screened and written notice |
|
|
can an attorney take an interest in litigation that would involve a piece of land? |
Larry may accept notes from John, even those secured by a security deed on John's undivided interest in Whiteacre, as payment for current and future fees arising out of the litigation. The notes, unlike the fractional share of John's interest in Whiteacre, represent sums certain (the first one $15,000 with the later ones to be determined as fees arise). |
|
|
can an attorney continue representing one of the two parties where there was initially joint representation? |
yes IF THERE IS A WAIVER |
|
|
Under the Georgia Civil Procedure Act (CPA) it |
. |
|
|
If you fail to respond under the Georgia Civil Procedure Act, do you waive your privilege? |
no - if it is privileged you need a court order |
|
|
Georgia recognizes what type of confidentiality not recognized by the FRE |
between psychiatrist |
|
|
to prove mental damages can you require that psychiatry records be produced? |
no - you can prove general damages instead |
|
|
does georgia recoginze confidentiality between a physician and a patient -- non psychiatrist |
no |
|
|
if you submit a discovery request --- do you have to send it to the other sidey |
yes |
|
|
what does the superior court have jurisdiction over |
felony crim divorce equitable relief title to land |
|
|
ga venue -- if the case is about land what is the proper venue |
where the land is |
|
|
service of process in ga |
shaeriff civilian non party (over 18/ appointed) appointed by court as permenant process |
|
|
voluntary dismissal by plaintiff |
in ga before first witness sworn |
|
|
what is an automatic dismisal in ga |
no order in five years |
|
|
time period for motion as a matter of law ga |
30 days |
|
|
if a forum question comes up mention |
forum non convenis |
|
|
suppose a developer gets shut down by a regulation limiting height of new development... developer brings claim under due process clause --- will he be succesful? |
no corporation does not have fundamental rights no final resolution |
|
|
suppose a developer gets shut down by a regulation limiting height of new development... developer brings claim arguing this is a taking? will this be a good claim (PRODCEDURAL)? |
no no final resolution |
|
|
suppose a developer gets shut down by a regulation limiting height of new development... developer brings claim arguing THIS IS A TAKING? is this a good claim (substantive)? |
But if the govt’s action leaves at least one economically viable use then the court will |
|
|
suppose a developer gets shut down by a regulation limiting height of new development... developer brings claim arguing that it's equal protection rights have been violated when another previous building is allowed to be higher? valid claim? |
most likely not - equal protection protects those traditionally discriminated against. if equal protection is applicable then it is most likely |
|
|
standing means what |
whether the P is the proper party to bring a matter to the court for adjudication |
|
|
what is ripenss |
question of whether a federal court may grant pre-enforcement review |
|
|
federal courts won't adjudicate political questions --- what does that mean |
avoid republican form of government challlenges to president's conduct of foreign policy impeachment partisan gerrymandering |
|
|
can supreme court make decisions as it relates to state law |
no |
|
|
the two biggest sources of congress' power are |
taxing and spending power |
|
|
treaty conflicts with federal statute which controls |
last in time |
|
|
executive agreements generally fail, but prevail over |
state laws |
|
|
is senate approval required for treaties |
yes |
|
|
ambassadors, federal judges and officers are appointed by _____ and confirmed by _____ |
executive
senate |
|
|
dormant commerce clause |
if state and local interfere by placing undue burden - unconstitutional |
|
|
privleges and immunities clause |
can't deprive citizens of other states of what you give your own state |
|
|
p&I /dcc analysis |
does it discriminate agains out of staters if so, is it burdensome to ic if so, is it necesary to achieve if no, violates dcc
if discriminates against out of staters ability to make a livelihood - |
|
|
full faith and credit - other states must give merit to judgements if |
final on the merits jurisdiction was proper |
|
|
is there state action when the NCAA orders the suspension of a baseball coach |
no |
|
|
bill of rights applies to states through |
14th amendment |
|
|
standards: rational basis test intermediate scrutiny strict |
ratinoally related to legitimate substantially related to important necessary to compelling gov. purpose |
|
|
which of the 3 involves also looking at least restrictive |
strict |
|
|
what are the three categories of individual rights |
procedural due process substantive due process equal protection |
|
|
what is procedural due process |
procedures to follow when taking away life liberty or property |
|
|
what is substantive due process |
adquate (SUBSTANTIVE RATIONAL) for taking life liberty or property |
|
|
what procedures are required under procedural due process |
balance importance of individual, accuracy and fact finding and goverments interest in efficiency |
|
|
there is a taking when either |
no economicly viable user OR it is literally taken |
|
|
privacy includes |
right to marry right to procreate custody of one's children right to keep family control upbringing of one's children purchase and use contraceptive abortion private consensual homo refuse medical treatment to vote |
|
|
which situation involves the undue burden test |
abortion |
|
|
not a fundamental right |
practice a trade physician assisted death right to education
|
|
|
equal protection approach |
what is the classification what is the approach for this classification law meet the level of scrutiny |
|
|
what standard for alienage |
generally strict unless deals with self government or congress' actions - intermediate for undocumented alien children |
|
|
scrutiny for disability discriimination |
rational basis |
|
|
content based restrictions must meet |
strict scrutiny |
|
|
certain types of speech are not protected what are they? |
incitement of illegal activity obsencity and sexually oriented speech (must appeal to the prurient interest, be patently offensive) commercial speech defamation
|
|
|
for a public figure or public official to be a plaintiff in defamation they must show ______________ |
actual malice falsity |
|
|
if a defamation case involves a private figure and a matter of public concern must show |
damages falsity |
|
|
the five categories of places available for speech in order of most open |
public forums designated public forums limited public forums non-public forums private property |
|
|
establishment clause (sex) |
Secular purpose Effect - must be neither to advance nor inhibit religion X - excessive entanglement |
|
|
contracts - which law applies |
if it involves goods --- ucc
if mxed - use predomint purpose test |
|
|
at common law an offer needs all terms to be definite whereas ucc only requires |
quantity |
|
|
advertisements are |
not offers, invitation to make an offer |
|
|
common law follows the mirror image rule --- what does that mean? |
has to match exactly |
|
|
battle of the forms --- short version |
yes there is a k; terms will include all of the terms of the first writing sent; any additional or different terms in the 2nd writing become part of the k nless they re objected to or they |
|
|
prexisting duty rule common law vs ucc |
common law - not consideration modifiying k does not need consideration |
|
|
statute of frauds (mylegs) |
marriage year land executor goods suretyship |
|
|
UNILATERAL VS MUTUAL MISTAKE |
unilateral not grounds mutual is if material |
|
|
what is novation |
substitution of one party in a contract by another who was not a party |
|
|
vesting rules (incidental vs creditor vs donee) |
donee immediate creditors --- bring suit or detrimentally relies incidental -- never any enforceable rights |
|
|
the theory of contract damages |
benefit of the bargain |
|
|
successive assignment of the same right (who has priority) |
common law - first in time ucc - first to file (simliar to article 9) |
|
|
damages must be reasonably foreseeable at the time of the contracting ---- what about punitive damagesn |
not allowed |
|
|
mitigation rule in employment setting |
duty to mitigate |
|
|
builder damages |
contract price less the cost of completion |
|
|
what is the similarity between the ucc remedies cover and damages? |
cover is substitute transaction and damages is market price
both isolate the impact |
|
|
what is perfect tender? |
ucc rule saying that the seller is obligated to deliver exactly the right goods |
|
|
if the goods are less than perfect buyer may rject the goods within ____ priod |
reasonable (sound fancy by saying seasonable) |
|
|
two possibilities on shipmenet |
destination and shipment; if shipment must deliver to common carrier |
|
|
risk of loss determined by |
contract |
|
|
what are the two crimes that merge? |
solicitation and attempt |
|
|
specific crimes mnemonic |
students can always fake a laugh even for ridiculous bar facts |
|
|
students can always fake a laugh even for ridiculous bar facts |
solicitation conspiracy attempt first degree murder assault larceny embezzlement false pretenses robbery burglary forgery |
|
|
two malice crimes |
murder and arson |
|
|
strict liabilty means ___________ intent |
no |
|
|
an accomplice is one who |
aids advises or encourages |
|
|
accomplice is liable for crime itself and _____________ |
all other foreseeable crimes |
|
|
solicitation |
asking someone to commit a crime |
|
|
what is conspiracy |
an intent to agree and an intent to pursue an unlawful objective |
|
|
does georgia require an overt act by one of the parties to a conspiracy |
yes |
|
|
attempt is |
specific intent overt act (substantial step > mere prep) |
|
|
m'naghten rule |
em' NOT know wrongfulness of actions |
|
|
irrestible impulse |
if it's irresistible it's hard to control
lacked capacity for self control |
|
|
durham |
little durham was a product of his parents
conduct was a PRODUCT of mental illness |
|
|
mpc |
can't conform your penal code
inability to conform conduct |
|
|
voluntary intoxication is a defense to ________ |
specific intent crimes |
|
|
you may use deadly force in defense when |
you reasonably believe that deadly frce is about to be used on him |
|
|
can deadly force be used to defend property? |
hell to the no |
|
|
mistake of facts negates what |
unreasonable negates specifc reasonable negates malice or general intent never defense to strict liability |
|
|
difference between battery and assault |
battery is unlawful aplication of force resulting in either bodily injury and aassualt is an attempt to |
|
|
murder is the unlawful killing of another human being with ____________________________ |
malice aforethought |
|
|
first degree murder is _____________ killing |
premeditated |
|
|
after you have reached a place of ________________________________ you can no longer be guilty of felony murder |
temporary safety |
|
|
murders that are not premeditated |
second degree murder |
|
|
manslaughter |
killing in the heat of the passion (and not cooled down) |
|
|
common law larceny requires |
carrying away and intent to deprive at initial moment |
|
|
embezzlement is normally someone |
higher up in the company |
|
|
if someone convinces someone to convey title by false pretenses it is a crime of |
false pretenses |
|
|
robbery |
stealing with force or threat intent to permanently deprive |
|
|
burglary |
breaking and entering of a dwelling of another at night with intent to commit a felony therin |
|
|
arson |
malicious burning of the dwelling of another |
|
|
4th amendment |
prohibition against unreasonable search & seizure |
|
|
5th amendment |
self incrim double jeopardy |
|
|
6th |
speedy trial trial by jury confront witnesses right to assitance of counsel |
|
|
8th amendment |
cruel and unusual punishment |
|
|
exclusionary rule |
product of unconstitutional search is excluded |
|
|
exclusionary rule exceptions |
grand jury civil procedings parole revocation impeachment purposes knock and announce rule miranda break the chain |
|
|
if exclusionary evidence comes in apply |
harmless error test |
|
|
arrest must be based upon |
probable cause |
|
|
terry stop |
can stop someone w/ reasonable suspicion supported by articuable facts of crim activity |
|
|
auto stop |
reasonable suspicion a law has been broken |
|
|
search and seizure analysis steps |
govermental conduct? reasonable expectation of privacy? valid search warrant? if not valid warrant, good faith defense? warrant exception? |
|
|
rules for whether there is governmental conduct under the 4th amendment |
publicly paid police (government) mall cop (private) |
|
|
reasonable expectation of privacy under 4th amendment |
own premises or overnight guest have expectation
stuff you hold out to the public (voice, handwriting) - no expectation |
|
|
valid search warrant (two ke elements) |
probable cause and particularity |
|
|
exceptions to warrant list |
search incident to arrest automobile exception plain view consent stop and frisk evanescent evidence/ hot pursuit special needs (schools) |
|
|
the trigger for required miranda warnings is |
custodial interrogation |
|
|
right to remain silent or requests for counsel must be |
unambiguous |
|
|
pretrial identification - you have the right to counsel present for |
post charge lineups and showsups (one on one) |
|
|
exclusion application to grand jury |
it doesn't apply |
|
|
a prosecurtures failure to disclose evidence whether willful or inadvertent violates the |
due process clause |
|
|
length of time for a charge for a right to jury trial attach |
exceed 6 months |
|
|
four good bases for withdrawing a guilty plea after sentence |
involuntary lack of jurisdiction ineffective assistance of counsel failure to keep a bargain |
|
|
evidence --- always ask yourself -- |
for what purpose is the evidence being offerred |
|
|
plaintiffs accident history is |
inadmissiblle (just character evidence) |
|
|
similar accidents caused by same event or condition are generally inadmissible unless it is for one of the following purposes |
existence of dangerous conditions causation of accident prior notice to D |
|
|
whats the difference between character and habit |
habit is automatic |
|
|
evidence of liability insurance |
is inadmissible to show fault but allowed to show ownership |
|
|
subsequent rememdial measures |
inadmissible for purpose of providng culpable conduct, admissible to show feasibility |
|
|
settlements of disputed civiil claims are inadmissible except |
impeachment government regulatory agency |
|
|
offer to pay hospital or medical expenses is |
inadmissible |
|
|
criminal case - character rule |
prosecutor can't touch it, unless D opens the door |
|
|
proper method for prosecutor countering someone who says D is peaceful |
have you heard, but not approaching |
|
|
character evidence in civil cases |
generally inadmissible unless it is literally an element of the crim |
|
|
defendant's other crimes can be introduced for non-character purposes such as |
motive intent mistake identity common scheme or plan |
|
|
MIMIC evidence can be entered by _______ or _______ |
conviction evidence that proved the crime occurred |
|
|
proof of handwriting |
layperson opinion expert comparison jury comparision |
|
|
what are examples of self authenticating documents? |
official publications certified copies of public or private records newspapers trade inscriptions and labels commercial paper |
|
|
what is the best evidence rule? |
if one wants to prove contests of the writing they either need to produce original writing or an acceptable excuse for its absence |
|
|
what is an acceptable excuse that would qualify under the best evidence rule? |
lost or cannot be found w/ due diligence destroyed without bad faith cannot be obtained w/ legal process |
|
|
if a witness' memory fails him, what can be done? |
show a memo to jog memory |
|
|
safeguards against jogging the memory ---- |
adversary has right 1) inspect the memory refresher 2) to use it on cross 3) introduce it into evidence |
|
|
opinion testimony (lay person) is admissible on what type of topics |
drunk/sober speed of vehicle sane/insane emotions handwriting |
|
|
court serves as a gatekeeper under daubert *TRAP* considerations |
testing of principles rate of error acceptance by other experts peer review and publication |
|
|
objection that an expert is talkign about the "ultimate issue" is only an objection if |
it is a criminal case and inovlves the mental state |
|
|
the impeaching fact may be proven w/ extrinsic evidence as to the following impeachment methods all methods except |
bad acts and contradictory facts that are collateral |
|
|
the prior inconsistent statement can only be admissible as impeachment --- unless |
under oath as part of a formal hearing
|
|
|
if you want to bring up a bias, interest or motive to misrepresent - must you confront first? |
yes |
|
|
if confrontation is met for presenting bias, interest or motive to misrepresent - may bias be presented by extrinsic evidence? |
yes |
|
|
sensory defincies
confrontation? extrinsic allowed? |
no yes |
|
|
bad reputation or opinion about witness's character for truthfulness
confrontation? extrinsic? |
no yes |
|
|
criminal conviction - what comes in for impeachment |
conviction of any crime where untruthfulness was an element or felony after 10 years - reverse 403 |
|
|
inquiry about bad acts if they reflect adversely on character can come in through |
confrontation |
|
|
what is the rationale for atty client privlege |
encourage client to speak openly with counsel |
|
|
husband wife privleges |
spousal immunity - holder witness spouse (crim only)
confidential communication (holder - not just crim) |
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what is hearsay? |
out of cour statement made by a person offered for the truth of the matter asserted |
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principal types of non-hearsay |
verbal act show effect on person who hear or read statement evidence of speaker's state of mind prior statements of trial witness party admissions |
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name as many hearsay exceptions as you can |
forfeiture by wrongdoing former testimony statement against interest dying declaration excited utterance present sense imprssion present state of mind declaration of intent present physical condition statement for purpose of medical treatment or diagnosis business records pbulic records |
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forfeiture exception - |
if you killed someone you can't complain about them not being there |
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former testimony is admissible if |
given at a former proceeding and opposing party had an opportunity and motive to cross-ex |
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statement against interest is admissible because |
not likely to lie when making a damaging statement |
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dying delcaration has to conern the cause of death and is only admissible in certain types of cases |
crim - homicide only civil - any
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excited utterance is allowed in because |
excitement suspends one's capacity to fabricate |
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present sense impression is allowed because |
declarant has no time to fabricate |
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what are the PRESENT exceptions to hearsay |
present sense impression present state of mind declaration of intent present physical condition
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for business records exception to hearsay - must be in the ______________ course of business |
regular |
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what is unique about the fee simple absolute? |
it is absolute and infinite |
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what is the language to create a fee simple determine able? |
to a FOR SO LONG AS To a DURING To a UNTIL |
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the accompanying future interest going along with a fee simple determinable |
possibility of reverter |
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fee simple subject to a condition subsequent language ---- |
starts off sounds like a FSA
To A, but if X event occurs, grantor reserves right to reenter and retake |
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what is unique about the subject to defeasible fees-- |
not automatically cut short -- but has an option |
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language creating
fee simple subject to executory limitation? |
to a but if x event to b |
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two defeasible fee rules |
need more than words of mere hope
absolute restraints are void |
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distinguishing characteristics of the life estate |
life tenant can get all ordinary uses and profits
life tenant should not commit waste |
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three possible future interests capable of creation in the grantor |
possibility of reverter right of reentry the reversion |
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what is a remainder |
future interest created ina grantee cvapable of becoming possessory upon the expiration |
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remainder always comes after a something of fixed duration - give an example |
life estate
term of years |
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remainders are either vested or contingent - what is a vested remainder |
created in an ascertained person and is not subject to any condition precedent |
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remainders are contingent for 1 of 2 reasons |
created in unascertained person subject to condition precedent |
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what is condition precedent |
it appears before the language creating the remainder or is woven into the grant |
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to a for life then if b graduates from college, to b
a is alive b is now in high school |
a life estate b has continegent remainder o has a reversion
if b graduates (indefeasibly vested remainder) |
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what are the three types of remainders? |
vested subject to complete defeasance vested subject to open |
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to a for life remainder to b, provided that b doesn't screw up
b has a |
vested remainder subject to complete defeasance |
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what is an executory interest |
future interst created in a transferee which is not a remander - cuts short some interest
"dr evel future interest" |
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shifting executory interest |
shifty interest
cuts short someone beside grantor |
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springing |
take from the spring of the grantor |
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rap brightline regarding a gift to an open class |
if it is conditioned on the members surving to an age beyond 21 violates rap |
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many shifting executory interests violate the rap why |
no time limit, could be 21 after a life in being |
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one critical rap exception |
charity to charity |
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joint tenancy |
2 or more w/ right of survivorship
"those that smoke a joint together survive together" |
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tenancy by the entirety |
marital interest between married partners |
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tenancy in common |
2 or more w/ no right of survivorship
"it's more common to not to want to pass survivorship" |
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to create a four unities
t tip |
time title identical interest right to possess the whole |
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if joint tenancy sells a portion what does the buyer get |
common |
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georgia has title theory - what are the implications for the joint tenancy |
makes entering into a mortgage forces joint into common |
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a co-tenant must not commit waste -- what are the three types |
voluntary permissive ameliorative |
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four leashold estates |
tenancy for years periodic tenancy tenancy will tenancy at sufferance |
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elements of constructive eviction |
substantial interference notice gooodbye - get out |
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whats the difference between the assignment and sublease |
assignment - transfer all of it (assignee is privity of estate)
sublease (sublessee is not in any type of privity) |
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landlord is responsible for the CLAP |
common areas latent defect (L's responsibility) assumption of repairs public use short term lease |
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easement is what |
gran of nonpossessory porperty interes that entitles holder to some form of enjoyment |
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creation of affirmative easement PING |
prescription implication necessity grant |
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for a affirmative easement you need to show |
previous use was apparent expected that it would continue reasonably necessary to enjoyment of dominant land |
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terminantion of an easement
END CRAMP |
estoppel - reasonable reliance necessity - need has ended destruction - servient land condemnation -by emminent domain release - written release abandonment - merger prescription (coah)
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what is a license |
mere privilege to enter anothers land for some delineated purpose |
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classic license cases |
tickets neighbors talking by the fence |
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convenants are different from other property interests in that |
they are contract based |
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the elements for a burden to run WITHN |
writing intent touch and concern the land horizonal and vertical privity notice |
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the elements for a benefit to run WITV
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WRITING intent touch and concern vertical privity |
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what is an equitabl servitude |
a promise that equity will enforce aginst succesors |
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adverse possession |
coah
continuous open and notorious actual hostile |
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after signing of the contract |
buyer owns property in equity |
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quitclaim |
contains no covenents |
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general warranty deed |
warrants against all defects |
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recording acts exits to protect two key parties |
bona fide parties creditors |
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a bona fide purchaser is one who |
buys for value without notice |
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three types of notice (AIR) |
actual inquiry record |
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two types of rceording statues |
notice statutue and race ntoice statute |
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mortgage is the union of two elements |
debt and voluntary lien |
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a mortgage can be pushed around under the same rules as ____ _____ |
commercial paper |
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difference bween assuming the mortgage and subject to the mortgage |
asumme it - buyer personally liable subject to - b not personally liable
either way it sticks w/ the land |
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foreclosure does or does not affect senior interests |
does not |
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zoning government may enact stuatues to |
reasonably control land use |
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exactions are tantamount to |
exstortion |
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regarding intentional torts super sensitivities are generall (taken into account/ not taken) |
not taken into accoutn unlss we knew of it |
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battery |
harmful or offensive contact w/ p's persona |
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assualt |
aprehension of immediate contract |
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false imprisionment |
sfficent act of restraint to a bounded area |
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intentnional infliction of emotional distress involves two key elements |
outrageous conduct damage |
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outrageous conduct invovles |
a certain type of plaintiff (children, elderly) or someone worth screwing (common carrier; inn keepers) |
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trespass to land |
act of physical invasion to land |
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trespass to chattels and conversion |
act of invasion to personal property |
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defenses to intentional torts |
consent self defense defense of otherse defense of property -- no deadly force necessity (public, private) discipline |
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defamation |
defamatory false statement of and concerning the p publication resulting in damages to p |
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defamation damages -- what the difference between slander and libel |
when spoken (slander) must prove special damages
when written or broadcast (libel) may presume damages |
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common law defenses to defamation |
truth absolute privllege (judicial, legislative, between spouses) |
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what are the elements of fraud? |
affirmative misrepresen tation fault intention to induce reliance justifiable reliance damages comparison w/ negligent misrepresentaton |
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types of interference with business relations? |
inducing breach of contract interference with contractual relations interference with prospective economic advantage |
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elements of negligence |
duty breach causation damages |
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what standard is a professional held to |
a professional is required to possess and exercise the knowledge and skill of an ordinary member |
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duty to an undiscovered trespasor |
no duty |
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negligence per se |
class of person class of risk |
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affirmative duty to act situations |
defendant put the P in peril relationships duty to control third persons |
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negligent infliction of emotional distress
generally no duty exceptions: |
1) zone of danger rule 2) bystander recovery |
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res isap loquitor example |
hot on the head by a falling flour barrel |
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cause in fact tests |
but for
ALTERNATIVE substantial facors (many d's comingled causeA) burden shifting (multiple D's & unknwn cause) |
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foreseeable events |
subsequent medical malpractice negligent rescue' reaction forces subsequent diseases or accidents |
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not foreseable events |
3p negligence criminal conduct acts of god |
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defenses to negligence |
modified comparative negligence assumption of the risk |
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animals |
domestic - must see a warning of it before wild - always liable |
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abnormally dangerous - always liable true or fallse? |
harm must be within the risk |
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product related injury? |
defendant must be a merchant product must be defective foreseeable use of the product |
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will assumption of the risk bar a product related case? what about contrib? |
assumption will bar contrib won't |
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difference bween a detour and a frolic |
a frolic is more fun and it involves going to vegas |
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joint and several liability |
each d can be liable to p for the entire amount |
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what's the difference between wrongful death and survival? |
wrongful death is for loss of support
survival is brought on behalf of the deceased |
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if something is not actualled transferred to the trust at the time of death
is it part of the trust |
no |
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trustee can make distributions however he ssees fit then can he give all the cash to the beneficiaries |
yes |
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Under Georgia's Intestacy Statute, since Mary did not have a surviving spouse, who are next in line to take? |
spouse children parents or siblings |
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send me a written contract is most likely an an |
invitation to recieve an offer |
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limitations on who may marry: |
1. minimum age 2. too closely related 3. opposite sex 4. capacity to consent 5. not have a prior undissolved marirage to a living spouse |
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common law marriage requirements |
a exhange of consents cohabitation holding out publicly of living together |
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what is an annulment |
declaration that the mearriage is invalid because there was an impediment at the the time of the marriage |
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annulment of a marriage - what is the void / voidable distinction |
void is a complete nullity
voidable is that one could bring a an action to have the marriage declared invalid |
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grounds for a void marriage are |
bigamy (another living spouse) consanguinity (too closely related) nonage (one was underage & didn't get proper approval) |
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grounds for a voidable marriage |
NONAGE (most states) incurable physical impotence lack of capacity |
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there are two types of divorce what are they? |
no fault divorce
fault based divorce |
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the two types of no fault divorce |
irretrievable breakdown living seperate and apart for statutory period |
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defense to no-fault divorce |
denial of grounds |
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fault based divorce grounds |
adultery desertion extreme cruelty voluntary drug addition habitual drnkenness insanity |
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defense to fault base divorce grounds |
denial of grounds collusion connivance condonation recrimination |
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georgia divides property through equitable divison of marital property - factors considered |
age, education, background and earning capacities of both parties duration of marriage standard of living present income source of money health of the parties assets child custody provisions |
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what is alimony |
the amount to pay the other spouse |
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tax consequences of alimony (spousal support) and child support |
alimony - treated as income/ expense
child - treated as neither |
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amoutn of child suport |
based upon monetary need and ability to pay -- generally based upon statute |
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enforcement of spousal support or child support |
contempt judgment against noncomplying party real estate seizure attachment of wages attorney fees wage withholding (child support only) other methods under the UIFSA |
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modification of spousal or child support |
a substantial change in circumstance affecting needs of the children |
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initial custody determination is made by looking at home state jurisdiction - how is that defined |
state where child lived for at least six consecutive month --- or if was home state and parent still lives there |
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the main child custody standard |
best interest of the child |
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constitutional limititations on personal jurisdictions - three concepts |
contact fairness notice |
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fed civ ---- corporation is deemed a citizen of which states |
every us state incorporate and state with its principal place of business |
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if one plaintff and one defendant are co-citizens, there is not |
complete diversity |
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eerie 5th grade version |
if there is a dviersity action where state and federal procedural rules crash - federal procedural rules apply |
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removal is to the federal district court |
whose territory encompasses the state court |
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only ________ can remove |
defendants |
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notice of the removal must be file within ____ days of the date defendant receives a copy of the intial pleading |
30 |
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a federal complaint must state |
grounds for federal jurisdiction short statement of the claim demand for judgment for relief |
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rule 12(b) |
lack of smj lack of personal jurisdiction improper venue insufficency of process insufficiency of service failure to state state a claim upon which relief can be granted failure to join an indispensable party |
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the _____ fed civ defense can be raised anytime |
subject matter jurisdictiont |
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the ________________ and
_______________________________ fed civ defenses can be raised prior to trial or at trial |
failure to state a claim upon relief can be granted failure to join an indispensable party |
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compulsory joinder has three questions |
should the absentte be joined (no chance at full relief w/o the party)
can the absentee be joined? (PJ)
should it proceed w/o absentee (fairness to all parties) |
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what is interpleader |
is civil procedure that allows a plaintiff to initiate a lawsuit in order to compel two or more other parties tolitigate a dispute. |
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ways to terminate a case |
pre-answer motion (12b) voluntary dismissal by plaintiff (41a) involuntary dismissal (41b) motion for judgment on pleadings (12c) summary judgement (56) judgment on partial finding (52) motion as a matter of law (50a) jnov (50b) |
