Pmbr

Front 1

Lay Person Witness Opinion

Back 1

•Not admissible if witness’s opinion is regarding a matter which on which the jury is capable of forming their own opinion.

•Admissible if opinion is rationally based perception and is helpful to the jury.

-If jury is capable of understanding the facts, and forming their own opinion on those facts → no dice.

Front 2

Felony Murder

Back 2

•D is liable for a death that is a foreseeable result of his criminal activity.

-Agency Theory – D is only liable for deaths which were caused by co-defendants / perpetrators.
*Shield Exception: If a D takes a person as a human shield, and that person is killed by anyone (e.g. police, resisting victim) → felony murder

-Proximate Cause Theory – Ds are liable for ANY death for which their actions are the proximate cause (i.e. natural and probable consequence of their actions). This includes killing of co-Ds by police.

Front 3

Testimonial Statements

Back 3

•A statement given at a police investigation, a preliminary hearing, a grand jury, or former trial.

Front 4

6th Amendment Confrontation Clause

Back 4

•D has a 6th Amendment right to confront accuser.

-A Testimonial statements will only be admitted if the opposing party has a change to cross examine the declarant

- A testimonial statement may be admitted if the declarant is unavailable AND opposing party has had an opportunity to cross examine.

Front 5

Riparian Water Rights

Back 5

•The American Rule - All riparians have equal water rights. May only bring an action against another riparian if their use of water was unreasonable or polluting.

**NOTE: Domestic use of water takes priority over commercial use

Prior Appropriation Theory - first in time, first in right - don't even need to own the land, just get there first.

Front 6

Warranty Deed

Back 6

•Present Covenants (3)

Covenant of Seisin & Covenant of Right to Convey → Covenants that represent the seller's promise that he has title and possession and can validly claim both

Covenant Against Encumbrances → Seller promises that there are no encumbrances, other than those that have been previously disclosed


•Future Covenants (3)

Covenant of Warranty and Covenant of Quiet Enjoyment → Covenants that represent seller's promise to protect the buyer against anyone who comes along later and claims paramount title to the property

Covenant of Further Assurances → If seller omitted something required to pass valid title, seller promises to do whatever is necessary to pass title to buyer

**only future covenants run with the land.

Front 7

Imposition of Additional Sentence

Back 7

For a D to be subject to a sentence greater than the statutory maximum, based on prior acts the prosecutor must submit an indictment to the jury that must be proven beyond reasonable doubt. This excludes prior convictions.

This is a decision for a jury not a judge.

Front 8

Contract Reformation

Back 8

If a written contract does not accurately represent the true intent of both parties, do to mistake or fraud, the court will reform the contract rather then issue a superseding document.

Front 9

10th Amendment

Back 9

•Congress may not compel states to adopt or enforce federal laws.

-Generally applicable laws are okay (covering private and public entities).

-May not tell the state how to legislate or enforce.

Front 10

Private Nuisance

Back 10

•Actions by D that substantially and unreasonably interfere with P’s use and enjoyment of the property.

-Standard is reasonable person. If P is hypersensitive and reasonable person would not object to D’s actions → no dice

--If P is hypersensitive and reasonable person WOULD object to D’s actions → dice.

Front 11

Bilateral Contract Breach

Back 11

If a party to a bilateral contract materially breaches the other party is relieved of his obligation to perform.

→ A material breach is one that defeats the purpose of the contract (a material breaching party may not recover for substantial performance).

Front 12

Fixtures (Life estate, tenancy for years)

Back 12

When a life tenant or a tenant for years adds chattel (a piece of movable property) court will assumed the tenant did NOT intent to make that addition a permanent fixture of the property.

•Chattel may be removed anytime before or at the end of tenancy.
-If life tenant, courts allow a reasonable time (after death) for chattel to be removed by deceased life estate holder’s representative.

Front 13

Statute of Frauds (Land Sale)

Back 13

•Need parties, price, promise (mutual), specific description of the land to be sold.

**If selling smaller parcel from larger lot, that small parcel must specifically identify which parcel(s) are being conveyed.

Front 14

Taking (Inverse Condemnation)

Back 14

•Taking is determined by 3 elements – (i) economic impact of regulation, (ii) regulation’s interference with investment expectations, (iii) character of govt. action.

--If no viable economic value is left after govt. action → taking. Look for “valueless”

Front 15

Time to create Marketable Title

Back 15

•Seller has until closing to perfect title. Seller may use proceeds of closing to perfect title (e.g. pay off mortgages / liens)
•If installment contract → sell has until payment of last installment to perfect title

Front 16

Parties' Rights (in breach of employment contract)

Back 16

Employer may NOT seek specific performance

Employer may NOT impose fines or penalties

Employee is entitles to restitution for work performed.

Employer is entitled to restitution for any advance paid on the contract.

Employer may enforce a covenant to NOT compete if on exists.

Front 17

Self Defense & Mistaken Identity

Back 17

If A knows that B is about to attack him and this attack is inspired by a mistake as to A's identity A may not wait for B's attack and then use force to defend himself IF A had time to correct B's mistake and prevent the attack.

Front 18

State Law that affects existing contractual obligations

Back 18

The Contract's Clause prohibits states from enacting retroactive laws that impair existing contractual obligations.

Impairment is measured by:
1) the law is a substantial impairment of a contractual relationship.
2) the law promotes a significant and legitimate public purpose.
3) the law was reasonable and a narrowly tailored means of achieving that purpose.

Front 19

Criminal Solicitation

Back 19

D is guilty of solicitation if he recruits another's assistance in committing a crime,

It is necessary that the solicitor INTEND that the offense be committed.

Front 20

Attempted Battery/Murder & Mistaken Identity

Back 20

Attempted crimes do not apply to situations of mistaken identity.

Front 21

Are threats by D against a witness, either before or during trial, admissible?

Back 21

Yes. Such threats are admissible as an admission because they tend to show consciousness of guilt.

Front 22

Introduction at trial of valid confession of one defendant against co-conspirator defendants

Back 22

1. if the declaring D does NOT testify the confession may not be introduced because it violates the 6th Amendment Confrontation Clause Rights of the other D (i.e. they don't have an opportunity to cross examine their accuser)

2. If the declaring D does testify and co-D have opportunity to cross examine then the confession is admissible.

Front 23

Trespass

Back 23

Entering the property of another without permission or lawful authority AND causing damage (no matter how slight)

Front 24

Independent Contractor + Trespass

Back 24

An employer will be liable for an independent contractor's trespass unto the property of another if the employer knew or should have known that the work contracted is likely to involve such a trespass.

Front 25

Can a creditor circumvent traditional mortgage obligations by requiring conveyance of title in the event of a default?

Back 25

No. Conveyance of title to a creditor will always be considered a mortgage. Consequently, traditional mortgage law, including the law of redemption, will apply.

Front 26

Employer liability for independent contractors

Back 26

Generally, an employer is not liable for acts of independent contractors, there are two exceptions:

1) Where the independent contractor's duty is non-delegable (the employer is not permitted to transfer the duty to another. e.g. Doctors)

2) Where the contractor is engaged in abnormally dangerous activity (e.g. surgery).

Front 27

Mortgagee's right to enjoin mortgagors removal of fixtures

Back 27

Mortgagors may perform acts which are usual and proper in the course of good husbandry.

Mortgagee may only enjoin if acts would diminish the value of the property dangerously close to inadequacy.

Front 28

Doctrine of Part Performance as it relates to the Statute of Frauds.

Back 28

Doctrine of part performance permits enforcement of oral contract for the sale of land. 3 elements are considered -
1. Payment of all or part of the purchase price.
2. Taking possession of the property.
3. Making substantial improvements to the land.

These acts are considered to show that a contract has been formed (evidentiary theory) OR they show that the purchaser has relied to his detriment on the oral contract (estoppel theory).

NOTE: If performance by puchases may be considered equal to the type of performance expected to a tennant, the court may choose NOT to envoke the doctrine of Part Performance (the activities would not be consided evidence of a purchase contract).

Front 29

Merger (Real Property)

Back 29

Any covenants relating to title contained in a contract of sale "merge" with and are superseded by the covenants of title contained in the deed.

After merger, contract may no longer be enforced and purchaser must look to deed for remedies.

Note: Contracts carry an implied warranty of merchantability. No implied warranties in deeds. Once contract ends, no more implied warranty.