Outlines

Outlines for each major topic of the Universal Bar Exam

Business Associations Outline

Agency Relationships

I. Formation

II. Termination

Power of Agent to Bind Principal

I. Actual Authority

II. Apparent Authority

III. Inherent Agency Power

Vicarious Liability of Principal for Acts of Agent

I. Contractual Liability

II. Liability of Third Party to Undisclosed P

III. Tort Liability

Fiduciary Duties Between Principal and Agent

I. Duties of Agent

II. Duties of Principal

Creation of Partnerships

I. Types of Partnerships

II. Formation

Power and Liability of Partners

I. General Partners (in GP and LP)

II. Limited Partners

III. Transfer of Titled Partnership Property

Rights of Partners Among Themselves

Dissolution

I. Dissociation

II. Dissolution

Special Rules Concerning Limited Partnerships

Formation of Organizations

I. Corporations

Pre-Organization Transactions

I. Promoter Liability

Piercing the Corporate Veil

I. General Principles

II. Application to Specific Entities

III. Consequences of Piercing the Veil

Financing the Organization

I. Sources of Finance

Management and Control

I. Board of Directors

II. Officers

III. Shareholders

Fiduciary Duties

I. Duty of Care

II. Duty of Loyalty

III. Duties in LLCs

IV. Remedies for Breach of Fiduciary Duties

Close Corporations and Special Control Devices

I. Characteristics of Close Corporations

II. Special Control Devices

Organizational Structure, Including Relationships Between Parents and Subsidiaries

I. Parent-Subsidiary Relationships

II. Mergers and Acquisitions

Shareholder and Member Litigation: Direct, Derivative, and Class Litigation

I. Direct Actions

II. Derivative Actions

III. Class Actions

IV. Shareholder Litigation in LLCs

Civil Procedure

I. Jurisdiction and Venue

II. Law Applied By Federal Courts

III. Pretrial Procedures

IV. Jury Trials

V. Motions

VI. Verdicts and Judgments

VII. Appealability and Review

Additional Considerations for the UBE:


Conflicts of Law Outline

I. CHOICE OF LAW

II. SPECIFIC AREAS OF LAW

III. IMPORTANT CONCEPTS TO KNOW FOR THE UBE

Application: Used to enforce judgments from foreign countries that are not subject to the Full Faith and Credit Clause.

Constitutional Law Outline

I. Organization of the Courts in the Federal System

A. The United States Supreme Court

  1. Jurisdiction
  2. Judicial Review in Operation
  3. Political Questions and Justiciability
  4. Abstention
  5. Adequate and Independent State Grounds

The Separation of Powers

I. The Powers of Congress

A. Legislative Power

  1. Source and Scope:
  2. Enumerated Powers:
  3. Congressional Limits on the Executive:

II. The Powers of the President

A. Executive Power

  1. Source and Scope:
  2. Express Powers:
  3. Implied Powers:

III. The Powers of the Judiciary

A. Judicial Power

  1. Source and Scope:
  2. Limitations:

IV. Interbranch Checks and Balances

The Constitution establishes a system of checks and balances to ensure no single branch of government becomes too powerful.

  1. Examples:
  2. Purpose:

V. Delegation Doctrine

  1. General Rule:
  2. Exception:
  3. Purpose:

The Relation of Nation and States in a Federal System

  1. Intergovernmental Immunities: The extent to which each government is immune from regulation and taxation by the other.
  2. Authority Reserved to the States: The powers that remain with the states, including the Tenth Amendment and the Dormant Commerce Clause.
  3. National Power to Override State Authority: Situations where federal law preempts state law, focusing on the Supremacy Clause and express and implied preemption.
  4. Relations Among States: The obligations states owe to each other, including the Full Faith and Credit Clause and the Privileges and Immunities Clause.

I. Intergovernmental Immunities

A. Immunity of the Federal Government

  1. Source: The Supremacy Clause (Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties are the "supreme Law of the Land," binding on state judges.
  2. Scope:

B. Immunity of State Governments

  1. Source: The Tenth Amendment reserves powers not delegated to the federal government to the states. The Eleventh Amendment prohibits federal courts from hearing lawsuits against states brought by citizens of another state or foreign country.
  2. Scope:

II. The Authority Reserved to the States

A. The Tenth Amendment

  1. Text: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
  2. Scope: The Tenth Amendment reserves to the states all powers not expressly delegated to the federal government by the Constitution. This reservation of power is the foundation of state police power, which allows states to regulate for the health, safety, welfare, and morals of their citizens.
  3. Limitations:

B. The Dormant Commerce Clause

  1. Concept: Even in the absence of federal legislation, the Commerce Clause (Article I, Section 8) implicitly restricts state and local laws that burden interstate commerce. This restriction is known as the "dormant" or "negative" Commerce Clause.
  2. Purpose: The Dormant Commerce Clause ensures that states do not erect barriers to the free flow of goods and services across state lines. It prevents states from engaging in economic protectionism that favors their own citizens or businesses at the expense of those from other states.
  3. Analysis:
  4. Exceptions:

III. National Power to Override or Extend State Authority

A. The Supremacy Clause

  1. Source: Article VI, Clause 2 establishes that the Constitution, federal laws made pursuant to it, and treaties are the "supreme Law of the Land." This clause forms the basis for the doctrine of preemption, which dictates that federal law supersedes conflicting state law.

B. Express Preemption

  1. Definition: Occurs when a federal law explicitly states that it preempts state or local law in a particular area.
  2. Scope: Express preemption clauses must be narrowly construed. Federal law preempts state law only to the extent specified in the preemption clause.

C. Implied Preemption

  1. Definition: Occurs when federal law implicitly preempts state or local law, even if the federal law does not expressly address preemption.
  2. Types:

D. Authorization of Otherwise Invalid State Action

  1. Concept: Congress has the power to authorize states to enact laws that would otherwise be unconstitutional under the Dormant Commerce Clause or other constitutional provisions.
  2. Scope: Congressional authorization must be clear and unambiguous.

IV. Relations Among States

A. Full Faith and Credit Clause

  1. Source: Article IV, Section 1 requires states to give full faith and credit to the public acts, records, and judicial proceedings of every other state.
  2. Scope: This clause requires states to:
  3. Limitations:

B. Privileges and Immunities Clause

  1. Source: Article IV, Section 2 guarantees that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
  2. Scope: This clause prohibits states from discriminating against citizens of other states with respect to fundamental rights and essential activities. This clause aims to prevent states from treating their own residents more favorably than out-of-state residents.
  3. Protected Rights and Activities: The Privileges and Immunities Clause protects a range of rights, including:
  4. Analysis: To determine whether a state law violates the Privileges and Immunities Clause, courts consider:
  5. Exceptions: The Privileges and Immunities Clause does not prohibit discrimination against out-of-state residents:

C. Interstate Compacts

  1. Source: Article I, Section 10 permits states to enter into agreements or compacts with each other, but requires congressional consent if the compact increases state power in a way that could interfere with federal supremacy.
  2. Purpose: Interstate compacts allow states to cooperate on matters of mutual concern, such as environmental protection, resource management, and law enforcement.

Individual Rights

I. Due Process

A. General Constitutional Basis

  1. Fifth Amendment (Federal): No person shall be deprived of life, liberty, or property, without due process of law.
  2. Fourteenth Amendment (State): Nor shall any State deprive any person of life, liberty, or property, without due process of law.
  3. Selective Incorporation: Most provisions of the Bill of Rights apply to the states through the Fourteenth Amendment.

B. Procedural Due Process

  1. Definition: The government must follow fair procedures before depriving a person of life, liberty, or property. This includes notice of the charges or proceedings and the opportunity to be heard.
  2. Property: This includes interests that a person has a legitimate claim to, like public education or government employment (but not at-will employment).
  3. What process is due? The amount of process due depends on the balancing test established in Matthews v. Eldridge:
  4. Examples:
  5. Waiver: Due process rights can be waived if done voluntarily and knowingly.

C. Substantive Due Process

  1. Definition: Protects fundamental rights that are not explicitly listed in the Constitution.
  2. Standards of Review:

D. Fundamental Rights under Substantive Due Process

  1. Right to Privacy: Although not explicitly mentioned in the Constitution, this right encompasses various personal choices.
  2. Right to Vote: Citizens over 18 have the right to vote in all federal, state, and local elections. Restrictions on this right face strict scrutiny.
  3. Right to Interstate Travel: Citizens can move between states without undue burdens. Restrictions on this right are subject to strict scrutiny.
  4. Right to Refuse Medical Treatment: Individuals have a right to refuse unwanted medical treatment, but this right is not absolute and may be balanced against state interests.
  5. Right to Bear Arms: The Second Amendment protects the right to keep and bear arms for self-defense in the home. This right applies to both federal and state governments [McDonald v. City of Chicago].

II. Equal Protection

A. Constitutional Basis

  1. Fourteenth Amendment: No State shall deny to any person within its jurisdiction the equal protection of the laws.
  2. Applies to the Federal Government: The Court has read equal protection principles into the Fifth Amendment's Due Process Clause, making it applicable to the federal government.

B. Standards of Review

  1. Strict Scrutiny: Applied to laws classifying individuals based on suspect classifications (race, national origin, alienage) or affecting fundamental rights. The burden is on the government to show the law is necessary to achieve a compelling government interest.
  2. Intermediate Scrutiny: Applied to classifications based on quasi-suspect classifications (gender, non-marital children). The burden is on the government to show the law is substantially related to an important government interest.
  3. Rational Basis: Applied to all other classifications. The burden is on the plaintiff to show the law is not rationally related to a legitimate government interest.

C. Suspect Classifications

  1. Race: Laws that discriminate based on race are subject to strict scrutiny.
  2. National Origin: Discrimination based on national origin also triggers strict scrutiny.
  3. Alienage: Laws that discriminate against non-citizens are generally subject to strict scrutiny.

D. Quasi-Suspect Classifications

  1. Gender: Gender classifications are subject to intermediate scrutiny. The government must show an "exceedingly persuasive justification" for the discrimination [United States v. Virginia].
  2. Non-Marital Children: Classifications based on legitimacy (birth status) receive intermediate scrutiny. Laws that discriminate against non-marital children are generally unconstitutional.

E. Other Classifications

  1. Wealth: Classifications based on wealth are subject to rational basis review.
  2. Age: Age classifications also receive rational basis review.
  3. Mental Disability: Classifications based on mental disability are subject to rational basis review.
  4. Sexual Orientation: The Supreme Court has not designated sexual orientation as a suspect or quasi-suspect class, so these classifications are reviewed under rational basis. However, the Court has struck down laws that discriminate against LGBTQ individuals, even while applying this lower standard.

III. Individual Rights and State Action

A. State Action Doctrine

  1. Generally: The Constitution's individual rights provisions only apply to actions by the government (state action). Private conduct is generally not subject to constitutional constraints.

B. Types of State Action

  1. Traditional Government Function: When a private entity performs a function traditionally and exclusively reserved to the government (e.g., running an election).
  2. Public Function: When a private entity exercises powers traditionally performed by the government and is significantly involved in public affairs.
  3. Entanglement: When the government is significantly involved in private conduct, either through encouragement, endorsement, or entwinement.

C. Private Conduct and the Thirteenth Amendment

  1. Exception: The Thirteenth Amendment, which prohibits slavery and involuntary servitude, can be used to reach private conduct that constitutes a "badge or incident of slavery".

IV. First Amendment Freedoms

A. Freedom of Speech and Expression

  1. General Principles: The First Amendment protects individuals from government restrictions on speech and other forms of expression. It applies to the states through the Fourteenth Amendment.
  2. Types of Restrictions:

B. Unprotected Speech

  1. Incitement to Imminent Lawless Action: Speech that is directed to inciting or producing imminent lawless action and is likely to incite such action [Brandenburg v. Ohio].
  2. Fighting Words: Words that by their very utterance inflict injury or tend to incite an immediate breach of the peace.
  3. True Threats: Statements meant to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals.
  4. Obscenity:
  5. Defamation: False statements of fact that harm someone's reputation. Public figures and officials must prove actual malice (knowledge that the statement was false or reckless disregard for the truth) to recover damages.
  6. Commercial Speech: Speech that proposes a commercial transaction. Receives less protection than other forms of speech.

C. Content-Neutral Restrictions: Time, Place, and Manner

  1. Public Forums: Streets, sidewalks, parks, and other public places traditionally open to expressive activity. Content-neutral restrictions in these forums must meet intermediate scrutiny.
  2. Limited Public Forums: Places not traditionally open to public expression but opened by the government for a specific purpose (e.g., a school auditorium open for a debate).
  3. Non-Public Forums: Government property not historically open to expressive activity (e.g., military bases, prisons). The government can regulate speech in these forums as long as the restrictions are reasonable and viewpoint neutral.
  4. Permit Requirements: Can be imposed for activities like parades or protests as long as the criteria for issuance are content-neutral and there are clear standards to prevent arbitrary denials.

D. Prior Restraint

  1. Definition: A government action that prevents speech from occurring. Generally presumed to be unconstitutional.
  2. Examples:

E. Overbreadth

  1. Definition: A law that prohibits a substantial amount of protected speech along with unprotected speech.
  2. Substantial Overbreadth: The overbreadth must be substantial in relation to the law's legitimate sweep to be unconstitutional.
  3. Standing: A person whose speech would be constitutionally protected can challenge an overbroad law, even if their own speech could be regulated.

F. Vagueness

  1. Definition: A law that is so unclear that a reasonable person cannot tell what speech is prohibited and what is permitted.
  2. Due Process Violation: Vague laws violate due process because they fail to provide fair notice of what conduct is forbidden.

G. Freedom of Association

  1. Expressive Association: The right to join with others to express ideas and advocate for change. Subject to strict scrutiny if the government interferes with this right.
  2. Intimate Association: The right to form close personal relationships with others (e.g., family, friends). This right is protected under the Fourteenth Amendment's Due Process Clause.

H. Freedom of the Press

  1. No Prior Restraint: The government cannot prevent the press from publishing information, except in very limited circumstances.
  2. Libel and Privacy: The press can be held liable for publishing false information that harms someone's reputation (libel) or invades their privacy. Public figures have a higher burden to prove libel.

I. Freedom of Religion

  1. Free Exercise Clause: Prohibits the government from interfering with the free exercise of religion.
  2. Establishment Clause: Prohibits the government from establishing a religion or favoring one religion over another.
  3. Examples:

Contracts Outline

I. Formation of Contracts

II. Defenses to Enforceability

III. Contract Content and Meaning

IV. Performance, Breach, and Discharge

V. Remedies

VI. Third-Party Rights

 

Criminal Law & Procedure Outline

I. HOMICIDE

A. INTENDED KILLINGS

1. Premeditation, Deliberation

2. Provocation

B. UNINTENDED KILLINGS

1. Intent to Injure

2. Reckless and Negligent Killings

3. Felony Murder

4. Misdemeanor Manslaughter

II. OTHER CRIMES

A. THEFT AND RECEIVING STOLEN GOODS

B. ROBBERY

C. BURGLARY

D. ASSAULT AND BATTERY

E. RAPE; STATUTORY RAPE

F. KIDNAPPING

G. ARSON

H. POSSESSION OFFENSES

III. INCHOATE CRIMES; PARTIES

A. INCHOATE OFFENSES

1. Attempts

2. Conspiracy

3. Solicitation

B. PARTIES TO CRIME

IV. General Principles

A. Acts and Omissions

  1. Actus Reus - A voluntary act or omission that causes a social harm.

B. State of Mind (Mens Rea)

  1. Required Mental State - The mental state the defendant must have had at the time of the crime to be guilty of the offense.
  2. Strict Liability - Crimes where no mens rea is required. The act itself is enough for guilt.
  3. Mistake of Fact or Law - A mistake that negates the required mens rea.

C. Responsibility

  1. Mental Disorder (Insanity) - A legal defense based on the defendant's mental state at the time of the crime. The defendant has the burden of raising this defense.
  2. Intoxication - Can negate the mens rea for some crimes.

D. Causation

  1. Actual Cause ("But-For" Causation): The defendant's conduct must be the cause-in-fact of the harm. The harm would not have occurred but for the defendant's conduct.
  2. Proximate Cause (Legal Cause): The harm must be a foreseeable result of the defendant's conduct.
  3. Intervening Actions: Can break the chain of causation if they are unforeseeable and supersede the defendant's conduct as the cause of the harm.

E. Justification and Excuse

F. Jurisdiction

V. Constitutional Protection of Accused Persons

A. Arrest, Search and Seizure

  1. Fourth Amendment Protection: Protects against unreasonable searches and seizures. Evidence obtained in violation of the Fourth Amendment is excluded from trial.
  2. Warrant Requirement: Generally, a warrant is required for a search or seizure to be reasonable.
  3. Exceptions to the Warrant Requirement:

B. Confessions and the Privilege Against Self-Incrimination

  1. Fifth Amendment Privilege: Protects against compelled self-incrimination.

C. Lineups and Other Forms of Identification

  1. Sixth Amendment Right to Counsel: Applies to post-indictment lineups and show-ups.
  2. Due Process: Applies to all identification procedures.

D. Right to Counsel

  1. Sixth Amendment Right to Counsel: Guarantees the right to counsel at all critical stages of a criminal proceeding.
  2. Effective Assistance of Counsel: The Sixth Amendment guarantees the right to effective assistance of counsel.

E. Fair Trial and Guilty Pleas

  1. Fair Trial: The Sixth Amendment guarantees the right to a fair trial.
  2. Guilty Pleas: A defendant can waive their right to a trial and plead guilty.

F. Double Jeopardy

  1. Fifth Amendment Protection: Protects against being tried twice for the same offense.

G. Cruel and Unusual Punishment

  1. Eighth Amendment Protection: Prohibits cruel and unusual punishment.

H. Burdens of Proof and Persuasion

  1. Burden of Proof: The obligation to prove a fact.
  2. Burden of Persuasion: The obligation to convince the fact finder.

I. Appeal and Error

  1. Preservation of Error: To appeal an issue, the defendant must have preserved the error by objecting at trial.
  2. Plain Error: An error that affects the defendant's substantial rights may be reviewed even if not preserved.
  3. Harmless Error: An error that does not affect the outcome of the trial will not result in reversal.
  4. Standards of Review: Appellate courts apply different standards of review depending on the type of error.

Evidence Outline

I. Presentation of Evidence

A. Applicability of the Federal Rules of Evidence (FRE)

B. Introduction of Evidence

  1. Personal Knowledge: Witnesses must have personal knowledge of the subject matter.
  2. Refreshing Recollection: If a witness's memory fails, a document can be used to refresh it. The witness cannot read from the document while testifying. The opposing party has the right to inspect the document, cross-examine the witness about it, and introduce relevant portions into evidence. Pretrial review of documents to refresh recollection is generally not discoverable, but the judge has discretion to order production.
  3. Objections and Offers of Proof:
  4. Lay Opinions: Lay witnesses can offer opinions based on their perceptions that are helpful to the jury and not based on scientific, technical, or specialized knowledge. This differs from the stricter common law rule.
  5. Competency of Witnesses: Everyone is presumed competent. Grounds for impeachment, not competency, address witness credibility. State law governs competency in diversity cases. Judges and jurors are generally incompetent to testify in the same trial.
  6. Judicial Notice: A court may take judicial notice of indisputable facts that are generally known or readily verifiable. The judge decides admissibility. The jury determines authentication and credibility.
  7. Mode and Order: Cross-examination is limited to the scope of direct examination and credibility. Leading questions are generally allowed on cross and limited on direct. Courts control the mode and order of presenting evidence.
  8. Exclusion of Witnesses: Upon request, the court must exclude witnesses so they cannot hear other testimony. Exceptions include natural person parties, representatives of non-natural persons, essential persons, and those statutorily permitted (e.g., victims).
  9. Impeachment: Any party can impeach a witness, even their own. Impeachment can be through bias, prior inconsistent statements, or character for truthfulness (reputation or opinion). Specific instances of conduct are generally only allowed on cross-examination. Prior convictions involving dishonesty are always admissible, while felonies not involving dishonesty are subject to balancing and a 10-year limit.
  10. Burdens of Proof: The plaintiff in civil cases and the prosecution in criminal cases have the burden of proof (persuasion). This involves burdens of production (establishing a prima facie case) and persuasion (convincing the trier of fact). Civil cases generally use a preponderance of the evidence standard, while criminal cases require proof beyond a reasonable doubt. Presumptions shift the burden of production.

II. Relevancy and Reasons for Excluding Relevant Evidence

A. General Considerations

  1. Definition: Evidence is relevant if it makes a fact of consequence more or less probable. It must be both probative (tending to prove something) and material (related to a fact of consequence).
  2. Direct vs. Circumstantial Evidence: Direct evidence proves a fact directly, while circumstantial evidence requires an inference. Both are admissible.
  3. FRE 403 Balancing Test: Relevant evidence can be excluded if its probative value is substantially outweighed by:
  4. Conditional Relevance: Evidence whose relevance depends on another fact can be admitted conditionally, subject to later proof of the other fact.
  5. Curative Admission: Inadmissible evidence can sometimes be admitted to rebut other inadmissible evidence, preventing unfair prejudice.
  6. Rule of Completeness: If part of a writing or recorded statement is introduced, the adverse party can require the introduction of any other part that should be considered at the same time.

B. Specific Applications of Relevance Rules

  1. Character Evidence:
  2. Habit Evidence: Evidence of a person's habit or an organization's routine practice is admissible to prove conduct in conformity with the habit. Look for words like "always," "automatically," "regularly," not "usually," "often," "frequently."
  3. Prior Bad Acts (Other Crimes, Wrongs, or Acts): Generally inadmissible to prove character. Admissible for other purposes (MIMIC), such as motive, intent, absence of mistake, identity, or common plan. In sexual assault cases, evidence of prior sexual assaults is admissible.
  4. Subsequent Remedial Measures: Inadmissible to prove negligence, culpable conduct, product defect, or need for warning. Admissible for other purposes, such as proving ownership, control, or feasibility of precaution if disputed.
  5. Compromise Offers and Negotiations: Evidence of offers to compromise or statements made during negotiations is inadmissible to prove or disprove a disputed claim or impeach by prior inconsistent statement. May be admissible to show bias, prejudice, or other relevant facts not dealing with liability.
  6. Payment of Medical and Similar Expenses: Offers to pay medical, hospital, or similar expenses are inadmissible to prove liability. Accompanying admissions of fact are admissible.
  7. Plea Discussions and Related Statements: Inadmissible against the defendant who made the plea or participated in discussions.
  8. Liability Insurance: Inadmissible to prove negligence or wrongful conduct. Admissible to show agency, ownership, control, or witness bias/prejudice.
  9. Authentication and Identification: Evidence must be authenticated, meaning the proponent must show it is what they claim. Methods include testimony, distinctive characteristics, chain of custody, and self-authentication. Certain documents are self-authenticating. The jury decides ultimate authenticity.
  10. Best Evidence Rule: Original documents must be used to prove content when content is at issue. Duplicates usually admissible, but not handwritten copies. Exceptions include when the original is unavailable through no fault of the proponent. Summaries allowed for voluminous records if originals made available.

III. Privileges

A. General Principles

B. Attorney-Client Privilege

  1. Elements:
  2. Exceptions:

C. Spousal Privileges

  1. Spousal Immunity (Testimonial Privilege):
  2. Confidential Marital Communications Privilege:

D. Psychotherapist-Patient Privilege

E. Clergy-Penitent Privilege

F. Work Product Doctrine

  1. Definition: Protects materials prepared by an attorney (or their representatives) in anticipation of litigation from discovery.
  2. Types:

G. Waiver of Privilege

IV. Other Policy Exclusions

These rules exclude certain types of evidence for policy reasons, even if relevant.

A. Subsequent Remedial Measures

B. Compromise Offers and Negotiations

C. Payment of Medical and Similar Expenses

D. Plea Discussions and Related Statements

E. Liability Insurance

V. Writings, Recordings, and Photographs

This section addresses the rules governing the admissibility of writings, recordings, and photographs.

A. Best Evidence Rule (Original Document Rule)

  1. Purpose: To ensure the accuracy and reliability of evidence presented to prove the contents of a writing, recording, or photograph.
  2. Rule: When seeking to prove the content of a writing, recording, or photograph, the original must be produced unless it is unavailable through no fault of the proponent.
  3. Applicability: The rule applies when the content of the writing, recording, or photograph is at issue. Examples include contracts, wills, deeds, or when a witness relies on the content of a document to testify.
  4. Duplicates: Duplicates are generally admissible to the same extent as originals, unless there is a question about the authenticity of the original or fairness requires the original. This includes photocopies, but not handwritten copies.
  5. Exceptions (When Originals Are Not Required):

B. Summaries

C. Authentication

  1. Requirement: All evidence must be authenticated, meaning the proponent must establish that it is what it is claimed to be.
  2. Methods:
  3. Photographs: Anyone with personal knowledge of the scene can authenticate a photograph.

D. Public Records

E. Learned Treatises

F. Refreshing Recollection vs. Past Recollection Recorded

  1. Refreshing Recollection: When a witness's memory fails, a document can be used to refresh it. The document is not evidence; the witness's refreshed testimony is.
  2. Past Recollection Recorded: A record of a witness's past knowledge can be read into evidence if the witness has insufficient memory to testify, and the record meets specific requirements. The record itself is not admitted as an exhibit unless offered by the adverse party.

I. Hearsay: Definition and Rationale

A. Definition

Hearsay is defined as: (1) an out-of-court statement; (2) offered for the truth of the matter asserted. This seemingly simple definition is deceptively complex.

B. Rationale for Exclusion

The hearsay rule seeks to ensure the reliability and trustworthiness of evidence admitted at trial. Hearsay statements lack traditional safeguards:

Because of these concerns, hearsay is generally inadmissible unless an exception or exemption applies.

II. Statements Not Considered Hearsay (Exemptions)

These statements fit the technical definition of hearsay but are specifically excluded from the rule.

A. Prior Statements by a Witness (FRE 801(d)(1))

A prior statement by a testifying witness who is subject to cross-examination is not considered hearsay if it falls into these categories:

  1. Prior Inconsistent Statement Under Oath: A prior statement made under oath at a trial, hearing, or deposition that is inconsistent with the witness's current testimony is admissible for both impeachment and as substantive evidence.
  2. Prior Consistent Statement Offered to Rebut: Admissible to rehabilitate a witness whose credibility has been attacked. This statement must have been made before the motive to fabricate arose.
  3. Prior Statement of Identification: A statement identifying a person the witness perceived earlier is admissible.

B. Statements Attributable to a Party Opponent (FRE 801(d)(2))

These statements are offered against a party and are considered admissions:

  1. Party's Own Statement: Any statement made by the party is admissible against them.
  2. Adoptive Admission: A statement made by another that the party expressly or impliedly adopts as their own. Silence can be an adoptive admission if a reasonable person would have responded.
  3. Statement by Authorized Person: A statement made by a person authorized by the party to speak on the subject is admissible.
  4. Statement by Agent or Employee: A statement made within the scope of the agency or employment relationship is admissible.
  5. Statement by Co-Conspirator: A statement made by a co-conspirator during and in furtherance of the conspiracy is admissible.

III. Exceptions to the Hearsay Rule

These statements are considered hearsay but are admissible because they fall under specific exceptions. There are two categories: exceptions where the declarant's availability is immaterial (FRE 803) and exceptions that require the declarant to be unavailable (FRE 804).

A. Exceptions Where Declarant's Availability Is Immaterial (FRE 803)

  1. Present Sense Impression: A statement describing or explaining an event or condition made while or immediately after the declarant perceived it.
  2. Excited Utterance: A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event. Look for exclamation points!
  3. Statement of Then-Existing Mental, Emotional, or Physical Condition: Admissible to prove the declarant's state of mind at the time, but not to prove the truth of the matter asserted. Includes statements of intent, plan, motive, design, mental state (e.g., "I'm scared") or physical sensation (e.g., "My back hurts").
  4. Statements for Medical Diagnosis or Treatment: Statements made for, and reasonably pertinent to, medical diagnosis or treatment are admissible. This includes statements about medical history, symptoms, pain, or the cause of the injury, even if made to a physician consulted solely for litigation purposes. Statements about fault are generally inadmissible.
  5. Recorded Recollection: A record about a matter the witness once knew but now cannot recall well enough to testify fully and accurately. Requirements include: witness had firsthand knowledge, the record was made or adopted when the matter was fresh, the record accurately reflects the witness's knowledge, and the witness testifies to the record's accuracy.
  6. Business Records: Records made at or near the time by a person with knowledge, if kept in the regular course of business, and it was the regular practice of the business to make the record.
  7. Public Records and Reports: Similar to business records, but covers records and reports of public agencies or officials. Police reports are generally inadmissible in criminal cases.
  8. Ancient Documents: Statements in documents at least 20 years old whose authenticity is established are admissible.
  9. Learned Treatises: Statements from reliable treatises, periodicals, or pamphlets used in conjunction with expert testimony. They can be read into evidence but not admitted as exhibits.
  10. Reputation Evidence: Admissible to prove reputation about character, familial relations, land boundaries, or community history, if reputation is directly at issue.
  11. Judgment of Previous Conviction: Admissible to prove any fact essential to the judgment.
  12. Other Exceptions: Various other specific exceptions exist for things like vital statistics records, records of religious organizations, family records, market reports, and commercial publications.

B. Exceptions Requiring Declarant Unavailability (FRE 804)

  1. Definition of Unavailability: A declarant is unavailable if they are exempt from testifying due to privilege, refuse to testify despite a court order, testify to lack of memory, are dead or too ill, or are absent and the proponent cannot procure their attendance.
  2. Former Testimony: Testimony given under oath at a prior trial, hearing, or deposition, offered against a party who had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In civil cases, the party against whom the testimony is offered need not be identical, just a predecessor in interest.
  3. Dying Declaration: A statement made under the belief of imminent death, concerning the cause or circumstances of what the declarant believed to be impending death. Admissible only in homicide prosecutions and civil actions.
  4. Statement Against Interest: A statement so contrary to the declarant's pecuniary or proprietary interest, or subject them to civil or criminal liability, that a reasonable person would not have made it unless they believed it true.
  5. Statement of Personal or Family History: A statement concerning the declarant's own birth, adoption, legitimacy, ancestry, marriage, etc., even if the declarant had no personal knowledge.
  6. Forfeiture by Wrongdoing: If a party wrongfully caused the declarant's unavailability with the intent to prevent them from testifying, the hearsay rule does not apply to statements offered against that party.

C. Residual Exception (Catch-All Exception) (FRE 807)

Hearsay statements not covered by a specific exception may be admitted if:

  1. The statement has equivalent circumstantial guarantees of trustworthiness.
  2. It is offered as evidence of a material fact.
  3. It is more probative on the point than any other evidence the proponent can reasonably obtain.
  4. Admitting it will best serve the purposes of the rules and the interests of justice.

The proponent must give the opponent reasonable notice of their intent to offer the statement.

IV. Hearsay Within Hearsay (Multiple Hearsay)

When a hearsay statement contains another hearsay statement, each level of hearsay must have an exception or exemption for the entire statement to be admissible. For example, a business record containing an employee's statement about an accident would need both a business records exception for the record itself and another exception for the employee's statement.

V. Confrontation Clause Considerations

The Sixth Amendment Confrontation Clause gives criminal defendants the right to confront witnesses against them.

VI. Additional Considerations

Family Law Outline

Getting Married

A. Requirements for Marriage

  1. Age: Both parties must be of a minimum age, usually 18, though often younger with parental or judicial approval.
  2. Consanguinity and Affinity: The parties must not be too closely related.
  3. Mental Capacity: Both parties must have the capacity to consent, meaning the ability to comprehend and voluntarily agree.
  4. Prior Undissolved Marriage: Both parties must not have a prior undissolved marriage to a living spouse.

B. Procedural Requirements

  1. License: Most states require a marriage license obtained from the designated licensing officer before solemnization.
  2. Solemnization: A ceremony conducted by clergy, judges, or other authorized individuals.

C. State of Mind Requirements

  1. Capacity to Consent: Each party must possess the ability to comprehend and voluntarily agree to the marriage.
  2. Intent: Both parties must have the present intent to enter into a permanent, exclusive relationship with the expectation of children.
  3. Marriage for a Limited Purpose: "Sham marriages" entered for a limited purpose (e.g., immigration) may be considered valid if they meet procedural requirements and the parties intended to assume usual marital obligations.

D. Common Law Marriage

  1. Consent: Mutual consent to a permanent, exclusive relationship with the expectation of children, not merely cohabitation.
  2. Capacity: Both parties must meet the capacity requirements for marriage.
  3. Cohabitation: The parties must live together as spouses.
  4. Holding Out Publicly as Married: The parties must present themselves to the public as married.
  5. Abolished in Most States: While abolished in most states, valid common law marriages formed in permitting states are generally recognized in others.
  6. Exceptions to Recognition: A state may not recognize a common law marriage if it violates a strong public policy of that state.
  7. Residency Requirement: Some states require parties to reside in the permitting state for a certain period for the marriage to be recognized.

E. Premarital Contracts (Prenuptial Agreements)

  1. Purpose: To alter the default legal distribution of assets upon divorce or death.
  2. Consideration: Entering into the marriage is sufficient consideration for the contract.
  3. Statute of Frauds: Must be in writing and signed by both parties.
  4. Content: Can cover property rights, spousal support, estate planning, and other matters not violating public policy.
  5. Enforceability: Generally enforceable if they meet certain requirements.
  6. Uniform Premarital Agreement Act (UPAA): Adopted by a majority of states, it focuses on voluntariness and unconscionability for enforcement.
  7. Choice of Law: Courts typically apply the law of the state with the most significant relationship to the agreement and marriage.
  8. Limitations:
  9. Invalidity: Must be proven by clear and convincing evidence.
  10. Void Marriages: Enforceable only to the extent necessary to avoid an inequitable result.
  11. Limitation of Actions: Tolled during the marriage, but equitable defenses like laches and estoppel apply.

Being Married

A. Rights and Responsibilities of Spouses

  1. Property: Each spouse owns and controls their separate property, but agency principles and tenancy by the entirety may apply.
  2. Support: Spouses have a mutual obligation of support.
  3. Evidentiary Privileges:
  4. Family Privacy:
  5. Torts and the Family:

B. Marital Agreements (Postnuptial Agreements)

  1. Purpose: To alter or confirm marital rights or obligations during the marriage or upon separation, dissolution, or death.
  2. Uniform Premarital and Marital Agreements Act (UPMAA): Adopted in a few states, it governs premarital and marital agreements under similar principles.
  3. Enforceability: Similar requirements to premarital agreements, including full disclosure, fairness, voluntariness, and writing.

Separation, Divorce, Dissolution, and Annulment

A. Annulment

B. Divorce and Separation

I. Child Custody

A. Jurisdiction

  1. Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA): The UCCJEA, adopted in all states, aims to minimize jurisdictional disputes between states regarding child custody and visitation, promoting interstate cooperation, and facilitating the enforcement of custody and visitation orders across state lines.

a. Initial Custody Determination: * The home state holds jurisdiction, meaning where the child has lived with a parent for at least six months before the custody proceeding, or from birth if the child is younger than six months old. * If no home state exists, a state with significant connections to the child and at least one parent, and substantial evidence concerning the child's care, protection, training, and personal relationships can exercise jurisdiction. * A court can assert jurisdiction if all states with potential jurisdiction under the home state or significant connection tests decline, deeming the current state a more suitable forum. * In situations where no state meets the criteria above, a court can exercise default jurisdiction.

b. Exclusive Continuing Jurisdiction: * The court that initially determined custody maintains exclusive jurisdiction until it decides that: (i) neither the child nor their parents reside in the state; or (ii) the child lacks a significant connection with the state, and substantial evidence concerning their care, protection, etc. is unavailable.

c. Temporary Emergency Jurisdiction: * A court can exercise temporary emergency jurisdiction if: (i) the child is in danger; and (ii) the child requires immediate protection. * If an existing custody order exists, the court must allow time for parties to return to the original court to argue. If no prior order exists, the emergency order remains until the home state court modifies it.

d. Enforcement of Another State's Order: * A court can enforce another state’s custody or visitation order using any remedy available to enforce its own orders. The UCCJEA offers additional remedies: * Registration of Order: A custody or visitation order can be registered in a new state. Once registered and unchallenged, the court can grant any relief for enforcement. * Expedited Enforcement: The UCCJEA provides a process similar to habeas corpus. If a petition is filed, the court orders the respondent to appear at a hearing on the next judicial day after service. The petitioner will be granted immediate physical possession of the child unless the respondent demonstrates specific conditions outlined in the UCCJEA. * Warrant to Take Physical Custody: Upon petitioning for enforcement, the petitioner can request a warrant for physical custody. The court will grant it if there's imminent likelihood of serious harm to the child or their removal from the state.

  1. Parental Kidnapping Prevention Act (PKPA):
  2. Enforcement:

B. Standards for Decision

  1. Best Interest and Welfare of the Child:
  2. Tender Years Presumption:
  3. Primary Caretaker:
  4. Third-Party Rights:

C. Types of Custody

D. Visitation (Parenting Time)

  1. Noncustodial Parent Rights:
  2. Third-Party Visitation:
  3. Limitations and Restrictions:

E. Modification

  1. Standard:
  2. Jurisdiction:
  3. Relocation:
  4. Nonmarital Cohabitation:

F. Child’s Representation

  1. Counsel for the Child:
  2. Approaches to Representation:

II. Rights of Unmarried Cohabitants

A. Contracts Between Unmarried Cohabitants

  1. Enforceability:
  2. Types of Contracts:

B. Division of Property

  1. Equitable Distribution:
  2. Factors Considered:
  3. Distinction from Marital Property:

III. Parent, Child, and State

A. Parental Rights and Responsibilities

  1. Fundamental Right to Raise Children:
  2. Limitations:

B. Parental Liability for Child’s Actions

  1. Common Law:
  2. Statutory Liability:

C. Children's Rights

  1. Right to Support:
  2. Right to Education:

D. Termination of Parental Rights

  1. Grounds:
  2. Due Process:

E. Emancipation

  1. Definition:
  2. Grounds:
  3. Procedure:

IV. Adoption

A. Definition and Types

B. Jurisdiction and Venue

  1. Jurisdiction:
  2. Venue:

C. Procedural Considerations

  1. Consent:
  2. Unmarried Fathers:
  3. Withdrawal of Consent:
  4. Investigation and Court Approval:
  5. Payment Prohibition:
  6. Confidentiality:
  1. New Parent-Child Relationship:
  2. Termination of Biological Parents’ Rights:
  3. Visitation:
  4. Dissolution:

V. Alternatives to Adoption

A. Assisted Reproduction

  1. Uniform Parentage Act (UPA):
  2. Types:
  3. Maternity:
  4. Paternity:
  5. Gestational Agreements:

B. Ownership of Fertilized Ovum

C. Child Support

  1. Assisted Conception Cases:

D. Other Alternatives

  1. Co-Parenting Agreements:

Key Considerations for UBE

Real Property Outline

Ownership of Real Property

I. Present Possessory Estates

A present possessory estate gives the holder a present right of possession and right to use and enjoy the property.

A. Freehold Estates

A freehold estate gives the owner title to or a right to hold the property.

1. Fee Simple Absolute

This is the largest possible estate, giving the holder all possible rights, including the right to sell or convey all or part of the property and the right to devise the property. A fee simple absolute may last in perpetuity. If the owner dies intestate, the property passes to the owner’s heirs.

a. Creation

The traditional words used to create a fee simple absolute are “to A and his heirs.” Modern law assumes a fee simple absolute if the language is ambiguous, so a conveyance of "to B" would be sufficient.

b. Rights of Possession and Use

The grantee of a fee simple absolute has the exclusive rights of possession and use.

2. Defeasible Fees

Defeasible fees are estates that may be cut short upon the occurrence of a specified event. They are alienable, devisable, and descendible.

a. Fee Simple Determinable

A fee simple determinable is an estate that ends automatically when a certain event or condition occurs, specified in the conveyance. The interest will automatically revert back to the grantor or the grantor's heirs.

i. Creation

A fee simple determinable is created using durational language such as "so long as," "during," "while," and "until." The grantor holds the possibility of reverter.

b. Fee Simple Subject to a Condition Subsequent

A fee simple subject to a condition subsequent is a defeasible fee estate that does not end automatically upon the occurrence of the condition specified in the conveyance. The grantor must expressly provide language containing a right of reentry upon the happening of the specified event. The language must expressly state that if the grantee does not use the parcel as designated, the grantor may reenter and occupy the parcel.

i. Creation

The language used to create this interest would include: "to Grantee, but if Grantee sells alcohol, Grantor has the right of reentry."

3. Life Estates

A life estate is an interest in real property that lasts for the duration of a person’s lifetime. The holder has the right to possess the property during their lifetime, but the ownership interest terminates upon their death.

a. Creation

A life estate is created by language such as “To A for life” or “To A for the life of B.”

b. Rights and Duties

The life tenant is entitled to all the ordinary uses and profits of the land. A life tenant must not commit waste. The future interest following a life estate can be a reversion in the grantor or a remainder in a third party.

B. Non-Freehold Estates

A non-freehold estate gives mere possession, such as in the case of a leasehold.

1. Leasehold Estates

In a leasehold estate, the tenant enjoys all rights attendant with possession for the term of the lease.

a. Types of Leasehold Estates

i. Estate for Years

An estate for years (also known as a tenancy for years) is an estate that lasts for a fixed period of time. It has a definite beginning and end date and automatically expires at the end of the term.

ii. Periodic Tenancy

A periodic tenancy (also known as a tenancy from period to period) is a leasehold estate that is automatically renewed for successive periods until one of the parties gives proper notice to terminate it. Examples include month-to-month or year-to-year tenancies.

iii. Tenancy at Will

A tenancy at will is a leasehold estate that has no fixed duration and can be terminated by either the landlord or the tenant at any time. However, reasonable notice is typically required to terminate a tenancy at will.

iv. Tenancy at Sufferance

A tenancy at sufferance occurs when a tenant wrongfully remains in possession of the property after the lease has expired. It arises by operation of law and is not a true leasehold estate.

II. Future Interests

A future interest is a present non-possessory estate or interest in real property that may become a possessory interest at some time in the future. A future interest follows a qualified estate and may be created in a grantee or in a grantor.

A. Reversions

A reversion is a future interest that arises when a grantor conveys a lesser estate than the grantor possesses and does not specify a third party to receive the remaining interest upon the termination of the lesser estate. In this situation, the interest automatically reverts back to the grantor.

B. Remainders

A remainder is a future interest that is created in a third party and becomes possessory upon the natural termination of the prior estate. Remainders typically follow life estates or estates for a term of years.

1. Vested Remainders

A vested remainder is a remainder that is: (1) given to an ascertained grantee; and (2) not subject to a condition precedent.

a. Indefeasibly Vested Remainder

An indefeasibly vested remainder is a remainder that is certain to become possessory in the future and cannot be divested or defeated by any condition subsequent.

b. Vested Remainder Subject to Complete Defeasance/Divestment

A vested remainder subject to complete defeasance (or divestment) is a remainder that may be completely divested or defeated upon the occurrence of a condition subsequent.

c. Vested Remainder Subject to Open

A vested remainder subject to open is a remainder that is given to a class of persons, but the class is still open to the possibility of additional members being added in the future. For example, a grant "to A for life, then to A's children" would create a vested remainder subject to open if A already has children, as the class of A's children is not closed.

2. Contingent Remainders

A contingent remainder is a remainder that is either given to an unascertained person or subject to a condition precedent.

C. Executory Interests

An executory interest is a future interest created in a third party (transferee) that divests or cuts short a prior estate.

1. Shifting Executory Interest

A shifting executory interest divests a prior estate created in a third party.

2. Springing Executory Interest

A springing executory interest divests the grantor’s interest.

D. Rules that Limit Future Interests

1. Rule Against Perpetuities

The Rule Against Perpetuities prevents remote vesting of property interests. The traditional rule states that "no interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest." In simpler terms, it means that a future interest must become certain to vest or fail to vest within a specific time frame (21 years after the death of someone alive when the interest was created).

a. Interests Subject to the Rule

The Rule Against Perpetuities applies to a broad array of contingent interests in real property, such as contingent remainders, executory interests, vested remainders that are subject to open, and, in many states, options to purchase or repurchase property. The rule also applies to powers of appointment under a will.

b. Interests NOT Subject to the Rule

The rule does not apply to reversions, possibilities of reverter, and rights of entry.

III. Co-tenancy

Co-tenancy exists when two or more people hold an interest in the same property.

A. Tenancy in Common

Each co-tenant owns an undivided interest in the whole of the property. Each tenant has a right to possess the whole.

1. Creation

Unity of possession is required; each tenant has the right to possess the whole.

2. No Right of Survivorship

There is no right of survivorship in a tenancy in common. If one co-tenant dies, their interest passes to their heirs or devisees.

B. Joint Tenancy

Each joint tenant owns an undivided interest in the whole of the property, but there is a right of survivorship. If one joint tenant dies, the surviving joint tenant(s) automatically inherit the deceased tenant’s interest.

1. Creation

Requires four unities: (1) possession, (2) interest, (3) title, and (4) time. All joint tenants must acquire their interests at the same time, from the same instrument, with identical interests, and with equal rights of possession.

2. Right of Survivorship

The surviving joint tenant(s) automatically inherit the deceased tenant’s interest.

C. Tenancy by the Entirety

Tenancy by the entirety is a form of joint tenancy available only to married couples. It provides special protections for the couple’s ownership interests.

1. Creation

Requires the four unities of a joint tenancy, plus marriage.

2. Rights of Possession and Use

Both spouses have an equal right to possess and use the entire property.

3. Right of Survivorship

If one spouse dies, the surviving spouse automatically inherits the entire interest.

Rights in Real Property

This section covers non-possessory interests in land, which are rights to use the land of another in a manner that would otherwise be a trespass.

I. Covenants at Law and Equity

Covenants are agreements or promises that concern the use of land and benefit and burden both the original parties to the promise and their successors. They can be affirmative (requiring the burdened party to do something) or negative (restricting how land may be used).

A. Real Covenants

Real covenants are enforced by an action at law for money damages.

1. Requirements for the Burden to Run with the Land

a. Written Document

There must be a writing that complies with the Statute of Frauds.

b. Intent

The original parties must have intended for the covenant to run with the land.

c. Horizontal Privity

Horizontal privity exists when there is a shared interest in the property at the time the covenant is created (e.g., grantor-grantee, landlord-tenant, mortgagor-mortgagee).

d. Vertical Privity

Vertical privity exists if the original party transferred their entire interest to the subsequent owner.

e. Touches and Concerns the Land

The covenant must relate to the use and enjoyment of the land.

2. Requirements for the Benefit to Run with the Land

a. Written Document

There must be a writing that complies with the Statute of Frauds.

b. Intent

The original parties must have intended for the covenant to run with the land.

c. Vertical Privity

Vertical privity exists if the original party transferred the entire estate or any lesser estate to the subsequent owner.

d. Touches and Concerns the Land

The covenant must relate to the use and enjoyment of the land.

B. Equitable Servitudes

Equitable servitudes are identical to real covenants, except that they are enforced in equity by an injunction. No privity is required.

1. Requirements for an Equitable Servitude

a. Written Document

A writing is generally required, but there is an exception for implied reciprocal servitudes.

b. Intent

The original parties must have intended for the restriction to run to future landowners.

c. Notice

The current owner of the servient estate took with notice of the servitude.

d. Touches and Concerns the Land

The covenant must relate to the use and enjoyment of the land.

2. Implied Reciprocal Servitudes

Implied reciprocal servitudes (also called reciprocal negative easements) may be enforced even if they do not appear in the chain of title. They arise when a common grantor develops land and intends to create a common scheme or plan of development. For example, if a developer sells lots with a restriction requiring single-family dwellings, even if the restriction is not explicitly included in subsequent deeds, the restriction may be implied.

a. Elements

i. Common Scheme or Plan

The restriction is part of a common scheme or plan for development.

ii. Notice

The current owner of the servient estate took with notice of the restriction.

b. Factors to Show Common Scheme

3. Terminating a Covenant or Equitable Servitude

a. Written Release

The parties may agree to terminate the covenant in writing.

b. Merger of the Dominant and Servient Estates

If the owner of the benefited property acquires the burdened property, the covenant or servitude terminates.

c. Abandonment

If the benefited party abandons the covenant or servitude, it terminates.

d. Estoppel

If the benefited party acts in a way that leads the burdened party to believe that the covenant is no longer in effect, the benefited party may be estopped from enforcing it.

e. Changed Circumstances

If the circumstances surrounding the covenant have changed so much that the reason for the restriction is no longer valid, the covenant may be terminated.

II. Easements

An easement is a non-possessory property interest that confers a right to use another’s land.

A. Easement Appurtenant

An easement appurtenant benefits a specific parcel of land (the dominant estate) and burdens another parcel of land (the servient estate).

1. Creation

a. Express Grant

Created by a written agreement between the landowners that satisfies the Statute of Frauds.

b. Implied by Prior Use

Arises when a landowner subdivides land, and there was a common apparent use that existed prior to the subdivision.

c. Implied by Necessity

Arises when a parcel of land becomes landlocked and the easement is necessary to access a public road. An easement by necessity ends when the necessity ends.

d. Prescription

Created when someone uses the land of another openly, notoriously, continuously, and without permission for the statutory period of time (typically 20 years).

2. Transfer

The burden of the easement passes automatically with the servient land, unless the new owner is a bona fide purchaser with no notice of the easement. The benefit of the easement passes automatically with the dominant estate.

3. Scope

Reasonable development of the easement is permitted, but the easement must be used for its original purpose.

4. Termination

a. Release

The holder of the easement releases the easement in writing.

b. Merger

The dominant and servient estates come under common ownership.

c. Abandonment

The holder of the easement demonstrates by physical action an intent to abandon the easement.

d. Estoppel

The servient estate owner detrimentally relies on the holder's conduct indicating an intent to abandon the easement.

e. Prescription

The servient estate owner interferes with the easement for the statutory period.

f. End of Necessity

An easement by necessity terminates when the necessity ends.

B. Easement in Gross

An easement in gross benefits a person or entity rather than a specific parcel of land. There is no dominant estate. For example, utility easements are typically easements in gross.

1. Creation

Easements in gross may be created by operation of law or by an express written or verbal agreement.

2. Transfer

Easements in gross are not transferable unless the parties intend for them to be.

III. Profits

A profit is a non-possessory interest in land that allows the holder to enter the land of another and remove something from it (e.g., minerals, timber, oil, gas). Profits are similar to easements, but they involve the right to take something from the land. Profits are created and terminated in the same way as easements.

IV. Licenses

A license is a revocable privilege to enter the land of another for a specific purpose. It is not an interest in land, and it does not run with the land.

A. Creation

Licenses can be created orally or in writing.

B. Revocation

Generally, a license is revocable at will by the licensor. However, a license coupled with an interest is not revocable. Additionally, if a licensee spends money or labor in reliance on the license, the license is irrevocable until the person gets value out of the expenditure.

C. Transferability

Licenses are not transferable unless the licensor so intends.

D. Termination

A license terminates on the death of the licensor or the conveyance of the servient estate.

V. Fixtures

Fixtures are items of personal property that have been attached to real property in such a way that they are considered part of the real property. Whether an item is a fixture depends on the intent of the person who attached it.

A. Elements of a Fixture

B. Trade Fixtures

Trade fixtures are items of personal property that are attached to real property for the purpose of carrying on a trade or business. They are generally considered to be personal property of the tenant and can be removed at the end of the lease, as long as the tenant restores the premises to their original condition.

VI. Zoning

Zoning is the government’s power to regulate the use of land for the health, safety, and welfare of the public.

A. Types of Zoning

B. Nonconforming Uses

A nonconforming use is a use of land that was lawful when it began but is now prohibited by zoning regulations. A grandfather provision may allow the pre-existing, nonconforming use to continue.

C. Variances

A variance is an exception to zoning regulations that allows a property owner to use their land in a way that is otherwise prohibited.

D. Special Use Permits

A special use permit allows a property owner to use their land for a specific purpose that is not otherwise permitted in the zoning district, but that is considered beneficial to the community.

VII. Support Rights

A. Lateral Support

Lateral support refers to the support that a parcel of land receives from the adjacent land. Landowners have a right to lateral support for their land in its natural state.

1. Strict Liability

If a landowner’s excavation causes adjacent land to subside in its natural state, the excavating landowner is strictly liable for damages.

2. Negligence

If the adjacent land has been improved, the excavating landowner is liable only if they acted negligently.

B. Subjacent Support

Subjacent support refers to the support that the surface of land receives from the underlying strata. If a landowner removes minerals or other substances from beneath the surface, they may be liable for damages if the surface subsides.

VIII. Water Rights

A. Riparian Rights

Riparian rights are the rights of landowners who border a watercourse (e.g., river, stream, lake). They have the right to reasonable use of the water for domestic purposes and other beneficial uses.

B. Prior Appropriation

The prior appropriation doctrine gives the right to use water to the first person to divert it for a beneficial use. This doctrine is often used in arid western states.

IX. Other Important Real Property Concepts

A. Marketable Title

Marketable title is a title that is free from reasonable doubt as to its validity and that a reasonable purchaser would accept. It is a title that is free from encumbrances (e.g., mortgages, liens, easements) unless they are explicitly identified in the contract. In a contract for the sale of real property, the seller has an implied obligation to convey marketable title to the buyer.

B. Equitable Conversion

The doctrine of equitable conversion states that once a valid and enforceable contract for the sale of real property has been executed, the buyer is treated as the equitable owner of the property and the seller is treated as the equitable owner of the purchase price. This doctrine has significant implications for risk of loss during the executory period of the contract.

C. Recording Acts

Recording acts are state statutes that establish a system for recording documents affecting real property, such as deeds, mortgages, and easements. These acts are designed to protect purchasers of real property from unrecorded interests.

1. Types of Recording Acts

a. Race Statute

Under a race statute, the first person to record their interest prevails, regardless of whether they had notice of prior unrecorded interests.

b. Notice Statute

Under a notice statute, a subsequent bona fide purchaser (BFP) without notice of prior unrecorded interests prevails over a prior unrecorded interest, even if the prior interest is recorded later.

c. Race-Notice Statute

Under a race-notice statute, a subsequent BFP who records first and has no notice of prior unrecorded interests prevails.

2. Types of Notice

a. Actual Notice

Actual notice exists when a party has direct knowledge of a prior interest.

b. Constructive Notice

Constructive notice exists when a document is properly recorded and appears in the chain of title, meaning that a reasonable title search would reveal it.

c. Inquiry Notice

Inquiry notice exists when a party has knowledge of facts that would lead a reasonable person to investigate further and would reveal a prior interest.

D. Deeds

A deed is a written instrument that conveys title to real property.

1. Requirements for a Valid Deed

a. Writing

The deed must be in writing and signed by the grantor.

b. Description of the Property

The deed must contain an adequate legal description of the property being conveyed. The deed must be definite enough to allow a court to fashion a remedy in the case of a dispute.

c. Identification of the Parties

The deed must clearly identify the grantor and the grantee.

d. Words of Conveyance

The deed must contain words indicating the grantor’s intent to transfer the property.

e. Delivery

The deed must be delivered to the grantee with the present intent to transfer ownership.

2. Types of Deeds

a. General Warranty Deed

A general warranty deed provides the greatest protection to the grantee because the grantor makes several covenants or promises regarding the title. These covenants include present covenants (covenant of seisin, right to convey, covenant against encumbrances) and future covenants (covenant of warranty, quiet enjoyment, further assurances).

b. Special Warranty Deed

A special warranty deed limits the grantor’s warranties to defects that arose during the grantor’s ownership of the property.

c. Quitclaim Deed

A quitclaim deed contains no warranties of title whatsoever. The grantee receives whatever interest the grantor has, which may be nothing.

E. Mortgages

A mortgage is a security interest in real property that is given by a borrower (mortgagor) to a lender (mortgagee) to secure the repayment of a loan.

1. Creation

A mortgage is created by a written instrument that meets the requirements of the Statute of Frauds.

2. Types of Mortgages

a. Purchase-Money Mortgage

A purchase-money mortgage is a mortgage that is given to a lender to secure a loan used to purchase the property.

b. Future Advance Mortgage

A future advance mortgage secures future loans that the lender may make to the borrower.

3. Rights and Obligations of the Parties

a. Mortgagor's Rights

The mortgagor (borrower) has the right to possess and use the property, subject to the terms of the mortgage.

b. Mortgagee's Rights

The mortgagee (lender) has the right to foreclose on the property if the mortgagor defaults on the loan.

4. Foreclosure

Foreclosure is a legal process by which a mortgagee can sell the mortgaged property to satisfy the debt owed by the mortgagor.

5. Redemption

Redemption is the mortgagor’s right to reclaim the property after default but before foreclosure by paying the outstanding debt and any associated costs.

6. Priority of Mortgages

Multiple mortgages on the same property are prioritized based on the time of recording. The first mortgage to be recorded (senior mortgage) has priority over subsequent mortgages (junior mortgages). However, there are exceptions to this general rule, such as purchase-money mortgages.

Real Estate Contracts

I. Contracts to Sell and Buy

A. Statute of Frauds

1. Part Performance Exception

B. Essential Terms

C. Marketable Title

1. When Title is Not Marketable

2. Curing Title Defects

3. Insurable Title

D. Remedies for Breach

1. Seller’s Remedies

2. Buyer’s Remedies

E. Equitable Conversion

F. Time is of the Essence

G. Fitness and Suitability

Mortgages/Security Devices

I. Types of Security Devices

A. Mortgages

1. Parties

2. Creation

3. Types of Mortgages

4. Mortgage Theories

5. Transfers

a. By Mortgagor

b. By Mortgagee

6. Discharge of Mortgage

a. Foreclosure Process

b. Equity of Redemption

c. Statutory Right of Redemption

B. Installment Land Contracts

C. Absolute Deeds as Security

Titles

I. Deeds

A. Requirements

B. Types of Deeds

1. Covenants of Title

a. Present Covenants

b. Future Covenants

C. Merger

II. Title Assurance System

A. Recording Acts

1. Types of Recording Acts

2. Types of Notice

3. Bona Fide Purchaser

B. Title Insurance

2. Title Insurance Policy

3. Title Insurance Premium

III. Special Problems

 

Secured Transactions Outline

I. General UCC Principles

A. Rules of Construction and Application (UCC § 1-101 et seq.)

B. General Definitions and Principles of Interpretation (UCC § 1-201 et seq.)

C. General Rules (UCC § 1-301 et seq.)

II. Applicability and Definitions (UCC § 9-101 et seq.)

A. Subject Matter of Article 9 (UCC § 9-109)

B. Perfection of Security Interests in Multiple State Transactions (UCC § 9-301)

C. Excluded Transactions (UCC § 9-109)

D. Definitions (UCC §§ 9-102 through 9-107)

E. Classification of Goods (UCC § 9-102)

F. Sufficiency of Description (UCC § 9-108)

G. Security Interests Arising Under Article 2 (UCC § 9-110)

H. Priority of Consignments (UCC §§ 9-103, 9-324)

III. Validity of Security Agreements and Rights of Parties (UCC § 9-201 et seq.)

A. Title to Collateral Immaterial (UCC § 9-202)

B. Enforceability of a Security Interest (UCC § 9-203)

C. After-Acquired Property and Future Advances (UCC § 9-204)

D. Use or Disposition of Collateral by Debtor (UCC § 9-205)

E. Collateral in Secured Party's Possession (UCC §§ 9-207, 9-208)

F. Request for Accounting (UCC § 9-210)

IV. Rights of Third Parties; Perfected and Unperfected Security Interests; Rules of Priority (UCC § 9-301 et seq.)

A. Priority over Unperfected Security Interests (UCC § 9-317)

B. Requirement of Filing and Steps for Perfection (UCC §§ 9-308 through 9-316, 9-501 et seq.)

C. Protection of Buyers of Goods and Chattel Paper (UCC §§ 9-320, 9-330)

D. Priority of Liens Arising by Law (UCC § 9-333)

E. Alienability of Debtor's Rights (UCC § 9-401)

F. Priority among Conflicting Security Interests (UCC §§ 9-322 through 9-329)

G. Fixtures (UCC § 9-334)

H. Accessions and Commingling (UCC §§ 9-335, 9-336)

I. Subordination (UCC § 9-339)

J. Defenses against Assignee; Modification of Contract (UCC §§ 9-404 through 9-406)

K. Termination Statement (UCC § 9-513); Release of Collateral (UCC § 9-512)

V. Default (UCC § 9-601 et seq.)

A. Rights and Remedies on Default (UCC §§ 9-601 through 9-606)

B. Debtor's Rights (UCC §§ 9-625 through 9-628)

 

Torts Outline

Intentional Torts

I. General Requirements

To prove an intentional tort, the plaintiff must prove three elements:

  1. Voluntary act: A conscious or willed act as opposed to a purely reflexive one.
  2. Intent: Can be shown in one of two ways: a. The actor acts with the purpose of causing the consequence; or b. The actor acts knowing that the consequence is substantially certain to follow. c. Note that the tortfeasor does not have to intend to harm or injure, only to bring about the tortious result.
  3. Causation: Defendant's conduct must have actually caused the harm.

II. Damages

  1. General Damages: Except as noted, proof of actual damages is not required to succeed in an action for most intentional torts. Plaintiff may recover at least nominal damages.
  2. Punitive Damages: If the plaintiff can demonstrate that the defendant acted maliciously, the plaintiff may seek punitive damages.
  3. Injunctive Relief: The plaintiff may seek an injunction to prevent a repetitive trespass.

III. Transferred Intent

If the defendant acts with the necessary intent to inflict certain intentional torts, but causes injury to a different victim than intended, then the defendant's intent is transferred to the actual victim. This doctrine applies to:

  1. Battery
  2. Assault
  3. False Imprisonment
  4. Trespass to Land
  5. Trespass to Chattels

IV. Types of Intentional Torts

  1. Battery: a. Elements: i. The defendant acts with the intent to cause contact with the plaintiff's body. ii. The contact is offensive or harmful to an ordinary reasonable person. iii. Contact is offensive if the plaintiff did not permit it. iv. The defendant's contact with the plaintiff results in injury or harm. b. "Single-intent rule" (majority rule): Defendant may be liable if the defendant (i) intends to bring about the contact; the defendant need not intend (ii) that the contact is harmful or offensive.
  2. Assault: a. Elements: i. The defendant intentionally places a person in reasonable apprehension of. ii. An imminent. iii. Harmful or offensive contact. b. Apprehension must be reasonable. c. Words alone are not enough, but words coupled with conduct can be sufficient.
  3. False Imprisonment: a. Elements: i. The defendant intends to confine or restrain another within fixed boundaries. ii. The actions directly or indirectly result in confinement. iii. The plaintiff is conscious of the confinement or harmed by it. b. Shopkeeper's privilege: A shopkeeper is not liable for false imprisonment if the shopkeeper has a reasonable belief that the plaintiff has shoplifted and detains the plaintiff in a reasonable manner for a reasonable time to investigate. c. The plaintiff must be aware of the confinement or be harmed by it.
  4. Intentional Infliction of Emotional Distress (IIED): a. Elements: i. The defendant intentionally or recklessly engages in. ii. Extreme and outrageous conduct. iii. That causes the plaintiff severe emotional distress. b. Intent: The defendant must intend to cause severe emotional distress or act with recklessness as to the risk of causing severe emotional distress. c. Extreme and outrageous conduct: Conduct that exceeds all bounds of decency tolerated in a civilized society.
  5. Trespass to Land: a. Elements: i. Defendant intentionally causes a physical invasion of the land of another. ii. The defendant need not intend to trespass, only to enter the land. Mistake is not a defense. b. Trespass may be direct or indirect. i. Direct trespass: With the accused’s body. ii. Indirect trespass: When the accused causes an item or another person to enter upon the property. c. Trespass usually is considered a tort under civil law, but it may be a criminal offense under statutory law. However, it is not a crime in all jurisdictions.
  6. Trespass to Chattels: a. Elements: i. The defendant intentionally interferes with the plaintiff’s right of possession of personal property. ii. The interference may be by dispossession (depriving the plaintiff of his lawful right of possession of the chattel) or by damage to the chattel. iii. The plaintiff must prove actual damages. b. Dispossession: A defendant is liable if he: i. Takes a chattel from the possession of another without the other's consent or ii. Otherwise interferes with the chattel for a substantial time. c. Damage: A defendant is liable if he: i. Harms a chattel while it is in the possession of another or ii. Interferes with another’s use or enjoyment of a chattel.
  7. Conversion: a. Elements: i. The defendant intentionally exercises dominion or control over a chattel and ii. So seriously interferes with the right of another to control it that the defendant may justly be required to pay the other the full value of the chattel. iii. It is a serious and substantial interference with or destruction of another’s personal property. The substantial interference justifies the defendant paying the full value of the personal property. b. Factors considered when determining the seriousness of interference: i. The extent and duration of the defendant's exercise of dominion or control ii. The defendant's intent to assert a right in relation to the chattel iii. The defendant's good faith iv. The extent and duration of the resulting interference with the other’s right to control the chattel v. The harm done to the chattel vi. The inconvenience and expense caused to the other c. Remedies: The plaintiff may recover damages for the fair market value of the chattel at the time and place of the conversion or replevin.

Negligence

I. General Considerations

Negligence is conduct which falls below the standard of care established by law for the protection of others from an unreasonable risk of harm. Unlike intentional torts, negligence does not require a mental state. Negligence focuses on what the defendant should have known and done under the circumstances rather than what they actually knew or intended.

II. Elements

The elements of a negligence cause of action are:

III. Affirmative Duty to Act

Generally, a person does not have an affirmative duty to act to prevent harm to another.

Exceptions:

  1. Special relationship: A duty to rescue or to control a third party's conduct exists if the defendant has a special relationship with either: a. The third party who committed the harm, or b. The injured party. c. Examples of special relationships: parent/child, employer/employee, custodial, property owner, psychotherapist/patient.
  2. Defendant created the peril: If the defendant caused the danger, they have a duty to try to help.
  3. Statutory duty: Some statutes impose a duty to act.
  4. Contractual duty: A duty may arise from a contract.
  5. Voluntary Undertaking: A defendant who voluntarily undertakes to aid or rescue another owes a duty of reasonable care in performing the rescue.
  6. Good Samaritan Laws: These laws protect rescuers from liability for ordinary negligence.

IV. Standards of Care

  1. Reasonable Prudent Person Standard: The defendant's conduct is measured against the conduct of a reasonably prudent person under the same or similar circumstances. a. Objective standard: Not based on the defendant's subjective mental state or capabilities, but what a reasonable person would have known and done in the same situation. b. Physical disabilities: The standard is adjusted for physical disabilities. The defendant is held to the standard of a reasonably prudent person with the same disability. c. Mental disabilities: Generally, the standard is not adjusted for mental disabilities. However, a sudden and unforeseeable incapacity can be a defense. d. Children: Children are held to a lower standard of care, that of a reasonable child of the same age, intelligence, maturity, training, and experience. This is a subjective standard. e. Professionals: Professionals are held to the standard of care of an ordinary member of the profession in good standing. i. Specialists: Specialists are held to a higher standard of care. f. Common carriers: Common carriers are held to a higher standard of care, that of the utmost care and vigilance.
  2. Statutory Standard of Care (Negligence Per Se) a. Definition: A method of establishing negligence (i.e., that a defendant breached a duty of care) by showing that the defendant violated the law in some manner. b. Elements: i. A criminal or regulatory statute imposes a specific duty for the protection of others. ii. The defendant neglected to perform the duty. iii. The defendant is liable to anyone in the class of people intended to be protected by the statute. iv. The harm suffered is of the type the statute was intended to protect against. c. Causation: Once the elements of negligence per se are established, the defendant is liable for injuries that were proximately caused by the defendant's violation. d. Defenses: i. Compliance with the statute was impossible or more dangerous than noncompliance. ii. The violation was reasonable under the circumstances. iii. The defendant was unaware of the factual circumstances that made the statute applicable. e. In most jurisdictions, negligence per se allows the case to go to the jury and avoids a directed verdict in favor of the defendant (allows the plaintiff to make a prima facie case of negligence without direct evidence of negligence). The jury can infer negligence, but they need not.
  3. Custom: Custom is evidence of the standard of care, but it is not conclusive. a. In professional malpractice cases, custom is generally conclusive evidence of the standard of care.
  4. Res Ipsa Loquitur a. Definition: A doctrine that allows the factfinder to infer negligence based on circumstantial evidence when the plaintiff cannot prove the specific act of negligence that caused the injury. b. Traditional elements: i. The accident was of a kind that does not ordinarily occur in the absence of negligence. ii. It was caused by an agent or instrumentality within the exclusive control of the defendant. iii. The plaintiff did not contribute to the injury. c. Third Restatement approach: i. The accident is a type of accident that ordinarily happens as a result of negligence of a class of actors; and ii. The defendant is a member of that class. d. Procedural effect: Res ipsa loquitur allows the plaintiff to survive a motion for directed verdict and get the case to the jury. The jury can infer negligence but they are not required to.

V. Duty of Land Possessors

A land possessor's duty of care to people on their property depends on the status of the entrant.

  1. Trespassers: A person who enters or remains on land without permission. a. Duty owed: Landowners have a duty to refrain from willful or wanton misconduct that would injure a trespasser. b. Unknown trespasser: No duty is owed except to refrain from intentional harm. c. Known trespasser (discovered or anticipated trespasser): Landowners have a duty to warn of or make safe known conditions if they are: i. Artificial ii. Highly dangerous iii. Concealed, and iv. The landowner knew of the condition. d. Attractive nuisance doctrine: Landowners owe a higher duty to child trespassers. If a landowner knows or has reason to know that children are likely to trespass and there is an artificial condition on the land that poses an unreasonable risk of death or serious bodily injury to children, the landowner must exercise reasonable care to eliminate the danger or otherwise protect the children.
  2. Licensees: A person who enters land with the express or implied permission of the land possessor, but not for a business purpose. This includes social guests and those who enter for their own purposes. a. Duty owed: A duty to warn of known dangerous conditions that are concealed and not likely to be discovered by the licensee. No duty to inspect or repair.
  3. Invitees: A person who enters land with the express or implied permission of the land possessor for a purpose connected with the business of the land possessor or as a member of the public for a purpose for which the land is held open to the public. a. Duty owed: A duty to exercise reasonable care in the maintenance of the property. This includes a duty to inspect the property, discover unreasonably dangerous conditions, and warn of or repair those conditions. The duty extends to conditions that the landowner should have discovered through reasonable inspection.

VI. Damages

  1. Actual Damages: The plaintiff must prove actual injury (personal injury or property damage), not just economic loss. a. Nominal damages and attorney's fees are not permitted in negligence actions. b. The extent of damages need not be foreseeable.
  2. Compensatory Damages: Damages intended to make the victim whole. This includes economic damages (e.g., medical expenses, lost wages) and noneconomic damages (e.g., pain and suffering, loss of consortium).
  3. Parasitic damages: If a tort caused physical harm, emotional distress damages can be added (e.g., NIED claims).
  4. Punitive Damages: Punitive damages are rarely awarded in negligence cases. To recover punitive damages, the plaintiff must prove that the defendant acted willfully, wantonly, recklessly, or with malice.
  5. Duty to mitigate: The plaintiff has a duty to take reasonable steps to mitigate their damages, such as seeking medical treatment. a. This is not a duty owed to the defendant, but a failure to mitigate can reduce the plaintiff's recovery.
  6. Collateral Source Rule: Total damages are not reduced by benefits received from other sources, such as insurance. However, other defendants can reduce their liability by the amounts paid by other sources.

VII. Defenses

  1. Contributory Negligence: a. A complete bar to recovery in a minority of jurisdictions. If the plaintiff's negligence contributed to their injury, even slightly, they cannot recover damages from the defendant. b. Last clear chance doctrine: Allows the plaintiff to recover even if they were contributorily negligent if the defendant had the last clear chance to avoid the accident but failed to do so.
  2. Comparative Negligence: a. The plaintiff's negligence reduces their recovery, but it does not bar recovery entirely unless their fault exceeds a certain threshold. b. Pure comparative negligence: The plaintiff's recovery is reduced by the percentage of their own fault. This is the majority rule on the MBE unless otherwise stated. c. Modified comparative negligence: The plaintiff can recover only if their fault is less than the defendant's fault (or in some jurisdictions, no more than the defendant's fault). If the plaintiff's fault meets or exceeds the threshold, they are barred from recovery.
  3. Assumption of the Risk: a. Express assumption of risk: The plaintiff expressly agrees to assume the risk of harm from the defendant's negligence, usually in a contract. To be valid, the agreement must be: i. Clear and unambiguous ii. Voluntary, and iii. Not against public policy. b. Implied assumption of risk: The plaintiff's conduct implies that they knew of the risk and voluntarily proceeded in the face of the risk.
  4. Superseding Cause a. An unforeseeable intervening cause that breaks the chain of causation between the defendant's negligent act and the plaintiff's injury, relieving the original tortfeasor of liability for lack of proximate cause. b. Examples: "Acts of God," criminal acts of third parties, intentional torts of third parties.

Strict Liability and Products Liability

I. Strict Liability

A. General

B. Categories of Strict Liability

C. Defenses to Strict Liability

Other Torts

I. Defamation

A. Generally

B. Defenses to Defamation

II. Intentional Infliction of Emotional Distress (IIED)

A. Definition

B. Elements

III. Nuisance

A. Types of Nuisance

B. Defenses to Nuisance

IV. Trespass

A. Types of Trespass

V. Misrepresentation

A. Intentional Misrepresentation (Fraud)

B. Negligent Misrepresentation

C. Defenses to Misrepresentation

VI. Invasion of Privacy

A. Types of Invasion of Privacy Claims:

B. Defenses to Invasion of Privacy

VII. Interference with Business Relations

A. Intentional Interference with a Contract

B. Intentional Interference with Prospective Contractual Relations

 

Trust, Wills, & Estates Outline

I. Intestate Succession

A. General Principles

B. Share of the Surviving Spouse

  1. Decedent Not Survived by Descendants or Parents
  2. Decedent Survived by Descendants
  3. Decedent Survived by Parents

C. Share of Children and Remote Descendants

  1. Surviving Spouse
  2. No Surviving Spouse
  3. Child Predeceases Intestate Decedent
  4. Adopted Children
  5. Children Born Out of Wedlock
  6. Half-Blood Children

D. Share of Ancestors and Collaterals

  1. Surviving Descendants or Spouse
  2. Surviving Parents, Siblings, or Descendants of Siblings
  3. Descendants of Grandparents
  4. Descendants of Great-Grandparents
  5. Escheat

E. Advancements

F. Simultaneous Death

II. Wills

A. General Principles

B. Execution Requirements

  1. Governing Law
  2. Compliance with Law
  3. Formal Requirements
  4. Testamentary Capacity
  5. Testamentary Intent

C. Types of Wills

  1. Attested Will
  2. Holographic Will
  3. Nuncupative (Oral) Will
  4. Conditional Will

D. Components of a Will

  1. Integration
  2. Codicil
  3. Incorporation by Reference
  4. Acts of Independent Significance
  5. Personal Property List (UPC)
  6. Dispositions to an Inter Vivos Trust

E. Revocation

  1. Methods of Revocation
  2. Dependent Relative Revocation
  3. Revival
  4. Lost Wills

F. Contractual Wills

  1. Requirements
  2. Joint Wills
  3. Reciprocal Wills
  4. Enforceability

G. Will Contests

  1. Grounds for Contest
  2. Standing to Contest
  3. No-Contest Clauses

H. Construction Problems

  1. Lapsed Legacies
  2. Ademption by Extinction
  3. Ademption by Satisfaction
  4. Abatement
  5. Ambiguities and Mistakes
  6. Exoneration of Liens
  7. Gifts to Classes

I. Non-Probate Transfers

  1. Will Substitutes
  2. Revocable Trusts
  3. Pour-Over Wills
  4. Other Will Substitutes

III. Family Protection

A. Spouse's Forced or Elective Share

  1. Purpose
  2. Elective Share
  3. Waiver
  4. Augmented Estate

B. Share of After-Born or Pretermitted Child

  1. Omitted Child
  2. Intestate Share

C. Homestead Allowance and Exempt Property

  1. Homestead Allowance
  2. Exempt Property

D. Limitations on Charitable Bequests

IV. Living Wills and Durable Health Care Powers

A. Purpose

B. Living Will

  1. Instructions for Medical Treatment
  2. Requirements

C. Durable Health Care Power of Attorney

  1. Appointment of Agent
  2. Scope of Authority
  3. Requirements

D. Revocation

E. Agent's Authority

  1. Executed Power of Attorney
  2. Family Consent Laws
  3. Effective Period

F. General Considerations

Trusts & Estates Outline

I. Trusts

A. What is a Trust?

B. Types of Trusts

1. Express Trusts

2. Inter Vivos Trusts

3. Testamentary Trusts

4. Pour-Over Trusts

5. Remedial Trusts

6. Other Types of Trusts

C. Trustee Powers and Duties

1. Duty of Loyalty and Good Faith

2. Duty of Care (Prudence)

3. Other Duties

D. Modification and Termination

1. Termination

2. Modification

E. Beneficiary Rights and Creditor Claims

F. Principal and Income

G. Powers of Appointment

II. Future Interests

A. Introduction

B. Fee Simple Interests

C. Future Interests of the Grantor

D. Future Interests of Transferees

1. Remainders

2. Executory Interests

E. Rule Against Perpetuities

III. Construction Problems

A. Gifts to Classes

B. Gifts to Heirs

C. Ademption

D. Abatement

E. Lapsed Legacies

F. Ambiguities and Mistakes

G. Will Contests

H. Non-Probate Transfers