Monday, July 21, 2014

Good luck!

Good luck to all in this final week of preparation for the July exam!! Posting to resume shortly in preparation for February.

Sunday, July 20, 2014

MBE Essentials: 3rd Party Beneficiaries

Two questions and answers from my book, MBE Essentials, clarifying the rights of a 3rd party beneficiary once it's determined that the party is intended and the rights have vested:

Can the third party beneficiary sue the promisor?

A23: Yes, if the third party is intended and the rights have vested then the third party can sue the promisor. The promisor, however, may raise against the third party any defense that the promisor has against the promisee. The promisor may be able to use defenses that the promisee has against the third party, but that will depend upon whether the promisor has made an absolute promise to perform or has only promised to perform that which the promisee would have had to perform. If the latter, then the promisor can assert the promisee’s defenses.

Can the third-party beneficiary sue the promisee?

A24: This will depend on whether the third party is a creditor beneficiary or a donee beneficiary. If the third party is a creditor of the promisee, then he can sue the promisee on the existing obligation between them. But if merely a donee (one who was given a gift by the promisee) then he will have no right to sue the promisee, unless he can prove that he detrimentally relied on the promise made by the promisee.


**MBE Essentials contains 434 questions and answers spanning all subject areas tested on the MBE. It is available on amazon.com @ http://www.amazon.com/MBE-Essentials-Sean-Silverman/dp/1495948706/ref=sr_1_2?ie=UTF8&qid=1399472981&sr=8-2&keywords=sean+silverman

Or you can purchase and download it right here on the blog:
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Thursday, July 17, 2014

The Top Five: The Privilege Against Self-Incrimination

We're just a few weeks away from the July exam. Here are five things to know going into the exam about the privilege against self-incrimination:

(1): A person may assert the privilege against self incrimination in any proceeding in which an answer to a question might tend to incriminate him. Any answer choice which limits the privilege to criminal cases is incorrect.

(2): Though the privilege can be waived, it is not waived merely by taking the witness stand. The privilege, however, must be claimed in a civil proceeding to prevent the privilege from being waived in a later criminal prosecution.

(3): The privilege may only be claimed by natural persons. An answer choice on the exam that purports to allow the privilege for corporations or partnerships is incorrect.

(4): Only a criminal defendant can use the privilege to avoid taking the witness stand. For all others, the privilege does not permit a person to avoid taking the stand; instead, the person must take the stand, listen to the question, and then invoke the privilege.

(5): This privilege only applies to testimonial or communicative evidence rather than real or physical evidence. In other words, one cannot claim the privilege against self-incrimination to avoid producing documents (as part of discovery) that might tend to incriminate, as such documents are not considered to be testimonial, and are therefore not covered by the privilege.

Saturday, July 12, 2014

MBE Fast Fact: Dedication of Land

As we approach the July exam, ideally you'll begin to feel comfortable with the more commonly tested issues on the MBE, and you'll be able to dig deeper into the the areas that are less tested but do come up. One such issue involves a person (often a developer) dedicating land to a public body.

Land may be transferred to a public body (often a city or county) by dedication. The offer of dedication may be either written or oral, and both submission of a map or plat showing the dedication, or opening the land for public use will both suffice to satisfy an offer of dedication. The acceptance of such offer by the public agency is necessary, and may be accomplished by either a formal resolution, approval of the map or plat, or actual assumption of the maintenance or construction of improvements on the land by the public agency.

When you see a question implicating dedication, it's important to first note that such dedication (provided the requirements above are satisfied) is entirely valid. The property will pass to the public agency just as it would pass to any individual purchaser.

Sunday, July 6, 2014

MBE Fast Fact: Priority of Mortgages

Mortgage questions are some of the most difficult questions on the MBE. Some of them are just brutal. One issue that comes up often enough that it's worth knowing well involves a senior mortgagee who fails to include a junior mortgagee in a foreclosure sale.

As a general rule, the priority of a mortgage is determined by the time it was placed on the property (Exceptions do apply, such as purchase-money mortgages which can have priority over prior mortgages placed on the property.) Generally foreclosure will terminate interests junior to the mortgage being foreclosed, but will have no effect on mortgages senior to the mortgage being foreclosed.

Watch carefully, however, for situations where a senior mortgagee fails to include a junior mortgagee as a party to the foreclosure action. Such failure on the part of the senior mortgagee will preserve the rights of a junior mortgagee so that the general rule that the junior mortgagee's rights are extinguished will not apply.

The policy behind the above analysis is that the junior mortgagee has the option to pay off any liens senior to the junior mortgagee that are in default, and that right makes the junior mortgagee a necessary party to any foreclosure action on the part of a senior mortgagee. By not including a necessary party in the foreclosure action, the senior mortgagee effectively preserves the rights of the junior mortgagee. Anyone who then purchases the property at the foreclosure sale will purchase subject to the interests of the junior mortgagee.

Monday, June 30, 2014

Strategies for July

Students very often ask me whether they should be studying differently for the MBE in July than they were in the months leading up to the exam. Though it's difficult to generalize, the one piece of advice I do give to all students is that in July you should be focusing far more on practice questions than on reading substantive outlines. There is definitely a time for reading outlines, and doing so is an essential aspect of the bar-review process, but in the last month leading up to the exam, practicing applying the knowledge that you've already learned will often benefit you more than continuing to try to memorize the substantive law.

That isn't to say you should put the outlines away. As you work through questions you will often need to refer back to the outlines to clarify points made in the answer explanations to the questions you're working through. In other words, the outlines should become a reference rather than a primary studying tool.

It's still a balance, and throughout this final month you should continue to balance the two essential components of effective bar preparation: gaining a deep knowledge of the subject matter, and applying that knowledge to practice questions. But understand that just as it would be difficult to learn how to play a musical instrument by only memorizing the notes of a song, simply learning the law will not be enough to excel on the MBE.

Tuesday, June 24, 2014

MBE Fast Fact: Federal Police Power

If you've been working through Constitutional Law questions, it's likely you've come across answer choices that claim the constitutionality of a federal law on the basis of Congress's police power. It's important to note that only under very limited circumstances will such an answer be correct.

Though states are said to have police powers (giving them the right to enact laws for the health, welfare, and safety of their citizens), the same does not hold true for the federal government. Rather, Congress has no general police power. The only exception to keep in mind for purposes of the MBE is that Congress can constitutionally act as per their "police powers" over the District of Columbia, federal lands, military bases, and Indian Reservations.

Note that this narrow exception is based on the fact that Congress has a property power to make rules for territories and other properties of the United States.

Thursday, June 12, 2014

The Top Five: Permissive Waste by a Life Tenant

Permissive waste occurs when a life tenant either allows land to fall into disrepair, or fails to take reasonable measures to protect the land. This concept will nearly always be tested in the context of someone holding a remainder interest suing a life tenant for waste. As such, it's important to understand the obligations of a life tenant in determining whether such a lawsuit will be successful. Most importantly you should understand the following five rules in regards to obligations:

(1): A life tenant has an obligation to repair the property. The obligation, specifically, is to keep the property in a reasonable state of repair. The life tenant is under no obligation to make permanent repairs (as the tenant only holds the property for the duration of his life), but is under an obligation to make repairs to the extent of income or profits from renting the property, or if the tenant is not renting the property, to the extent of the reasonable rental value of the land.

(2): A life tenant is obligated to pay interest on any encumbrances on the land. A common encumbrance in this respect would be a mortgage. Note that the tenant, however, is not required to the pay the principal on the encumbrance; that obligation is on the future interest holder (most likely someone either holding a remainder or a reversion).

(3): A life tenant is obligated to pay all ordinary taxes on the land.

(4): If there is a public improvement on the land, and such improvement is shorter than the expected duration of the life estate, then the life tenant is obligated to pay all of the assessment for the public improvement. If, however, the improvement is likely to outlast the estate, then the analysis changes; namely, the taxes and assessment for such an improvement will be apportioned equitably between the life tenant and the holder(s) of any future interest.

(5): Importantly, note that a life tenant is not responsible for insuring the property for the benefit of any future interest holder, and is similarly not responsible to the future interest holder for any damages to the land caused by a third party.

Thursday, June 5, 2014

MBE Essentials: Character Evidence

Two questions from my book MBE Essentials clarifying the difficult issues involving the admissibility of character evidence:


When is character evidence admissible in a civil trial?

The rules regarding character evidence in a civil trial are quite a bit less complicated than in a criminal trial. In a civil trial, character evidence is admissible if a person’s character is an essential element of a cause of action, claim or defense. Some examples as to when this will be true are in cases of defamation, deceit, negligent entrustment, and claims of self-defense. Note that when this type of evidence is admissible, it is admissible in all three forms (reputation, opinion, and specific acts).

When is character evidence admissible in a criminal trial?

Here is where it gets more complicated. The accused can use evidence of his good character in presenting his defense. In doing so, the accused can offer reputation or opinion evidence of a pertinent character trait. The accused can also offer reputation and opinion evidence of a victim’s character when the asserted defense makes it relevant (for example, if the accused is claiming self-defense). If the accused offers evidence of his own good character, the prosecution can cross-examine that character witness and ask about specific instances of conduct. If the accused offers evidence of the victim’s bad character trait, the prosecution can cross-examine that character witness, or call its own witness to testify to the same bad character trait of the accused.

**MBE Essentials contains 434 questions and answers spanning all subject areas tested on the MBE. It is available on amazon.com @ http://www.amazon.com/MBE-Essentials-Sean-Silverman/dp/1495948706/ref=sr_1_2?ie=UTF8&qid=1399472981&sr=8-2&keywords=sean+silverman

Or you can purchase and download it right here on the blog:
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Wednesday, May 28, 2014

The Takings Clause: Takings vs. Regulations

If you're given a question on the Takings Clause, an issue you're likely to analyze is whether the government is required to compensate a landowner. This will depend entirely upon whether the act of the government is deemed to be a taking or merely a regulation. It should be noted that this analysis is the same for both the federal government (as per the 5th Amendment), and the state government (as per the 14th Amendment).

The key point here is that the government need not pay compensation for regulating property, but it must compensate an owner of property if the government takes the private property of the landowner for purposes of use by the public. The easy case is where an actual appropriation takes place. If there is an actual appropriation or a permanent physical invasion of another's property by the government, then there is a taking and compensation must be paid. The one exception to look out for here is if there is an emergency requiring the appropriation of property; in that case compensation will be less likely.

If the government permanently denies a landowner of all economic use of his land, that is equivalent to a physical appropriation of the land and as per the above should be deemed a taking. A classic example here is where the the state passes a zoning ordinance after a landowner has acquired the land and the ordinance effectively removes the landowner's ability to benefit monetarily from the property.

If, on the other hand, the government only temporarily denies the landowner of all economic use of his land, the case for a taking is far less certain. The Court will examine relevant factors (for example, the length of the delay, the degree of harm to the landowner, etc.) in order to determine whether fairness and justice require the landowner to compensate the landowner. It's a balance and the analysis should balance relevant factors.

One last potential angle is where an act by the government merely decreases the value of a landowner's property but does not either permanently or temporarily deny a landowner of all economic value of his land. This is nearly always deemed a regulation rather than a taking provided the landowner is left with an economically viable use of the property.

If you've determined that the government has acted in a way that qualifies as a taking, you must then determine the appropriate remedy for the landowner. There are two possibilities here: the government will either be required to pay the property owner compensation (measured by the reasonable value of the property at the time of the taking), or terminate the act immediately and pay the landowner for any damages that have occurred while the government was acting in a way that burdened the landowner.

Friday, May 23, 2014

MBE Essentials: Contract Defenses

A question about three important contract defenses from my book, MBE Essentials:

What are the differences between impossibility, impracticability, and frustration of purpose?

First, it’s important to note the similarity among these three concepts. Each discharges a duty to perform under a validly formed contract. Impossibility is measured by an objective standard; the impossibility must arise after the contract was entered into, and it must be such that it renders the contract impossible for anyone to perform. And note that if one party has partially performed prior to the impossibility, that party may recover in quasi-contract (measured by the benefit the non-performing party has received).

Impracticability is a subjective test rather than an objective test. It requires that a party encounter extreme and unreasonable difficulty or expense that was not anticipated when the parties entered into the contract. A mere change in the expense to one party (for example if the price of raw materials increases) will not suffice; in other words, such a change is not "extreme" or "unusual."

Finally, frustration of purpose requires a supervening event that was not reasonably foreseeable at the time of entering into the contract which completely (or almost completely) destroys the purpose of the contract, provided that the purpose of the contract was understood by both parties at the time the contract was entered into. Simply put, an unanticipated event occurs, and that event entirely destroys the reason why the parties entered into the contract. If so, then neither party will be required to fulfill their agreed upon promises.

**MBE Essentials contains 434 questions and answers spanning all subject areas tested on the MBE. It is available on amazon.com @ http://www.amazon.com/MBE-Essentials-Sean-Silverman/dp/1495948706/ref=sr_1_2?ie=UTF8&qid=1399472981&sr=8-2&keywords=sean+silverman

Or you can purchase and download it right here on the blog:
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Sunday, May 18, 2014

MBE Fast Fact: Warranty of Habitability

The warranty of habitability seems to pop up quite a lot in Real Property questions. It's easy enough to understand that the warranty places burdens on the landlord, and those burdens are imposed regardless of whether the landlord agrees to them in the contract between the landlord and tenant. But the questions will require that you understand specifically which obligations this warranty covers, as well as how it affects the other rights and obligations of both the landlord and tenant. Be sure to know the following:

The warranty generally only applies to residential tenancies (as opposed to commercial tenancies). Essentially, the warranty is an unstated guarantee that a rental property meets basic living and safety standards. So, when a tenant rents an apartment, for example, an implied warranty of habitability requires that the unit will have hot water, a working electrical system, heat in the winter, lockable doors and windows, etc. And what happens if the landlord breaches this warranty?

The tenant has a few options here. One option is to terminate the lease, but if termination is not desired, the tenant can make repairs and then offset the cost against future rent obligations. Another option is to forgo making the repairs and to abate the rent to an amount equal to the fair market value of the defective property. (Though this option is far less desirable depending upon the specific defects.) Finally, the tenant has the option to remain in possession, pay full rent, and then seek damages directly from the landlord.

Wednesday, May 14, 2014

MBE Essentials: The Statute of Frauds

A question from my book, MBE Essentials:

What are some situations in which the statute of frauds is deemed inapplicable even though the contract would normally fall within its reach?

The most commonly tested fact patterns in this respect deal with the sale of goods and the sale of land. Most statute of frauds questions on the MBE will involve these types of contracts. In regards to the sale of land (common law), the statute will not apply if there is performance that unequivocally indicates that a contract has been performed. The rationale here is that if we have this evidence available, then there is no need for a writing, and the need for a writing is the entire basis behind the statute. Two of the following are required to remove a contract for the sale of land from the statute: payment from one party to the other (either full or partial payment), possession by the buyer of the property that was the subject of the contract, or valuable improvements on the property by the buyer.

In regards to the sale of goods for over $500 (UCC), the statute will not be applicable if one merchant sends to another merchant a confirmation regarding their oral agreement, and the recipient does not object within 10 days of receipt (the “confirmatory memo rule”). In addition, the statute is inapplicable if the goods were specifically made for the buyer and not suitable for sale in the ordinary course of business. The statute will also not apply if the party claiming the defense admits in his pleading or court testimony that a contract was formed, or if the contract is in fact performed (fully or partially) by the party claiming the defense. The rationale behind these exceptions is identical to the rationale in regards to the sale of land. With adequate evidence of the contract at hand, we need not require that the original contract be in writing to enforce it.


**MBE Essentials contains 434 questions and answers spanning all subject areas tested on the MBE. It is available on amazon.com @ http://www.amazon.com/MBE-Essentials-Sean-Silverman/dp/1495948706/ref=sr_1_2?ie=UTF8&qid=1399472981&sr=8-2&keywords=sean+silverman

Or you can purchase and download it right here on the blog:
Buy Now

Considering Private Tutoring?

It's about that time that students are graduating from law school and beginning to prepare for the July Bar Exam. If you're considering private tutoring, e-mail me at silvermanbarprep@gmail.com. I provide a free session to all students where I provide my advice for preparing for the exam, and I also answer any questions regarding strategies and preparing effectively for the exam. For students who choose to then schedule lessons, we set up a schedule to start getting you ready to pass the exam.

I know this is a cliche line, but available times do fill up quickly. Contact me at your earliest convenience if you're interested in working with me to prepare for the test in July!

All Best,

Sean

Sunday, May 11, 2014

MBE Fast Fact: Symbolic Speech

The First Amendment is heavily tested within the subject of Constitutional Law. It's not limited to the protection of verbal communications; rather, conduct is also protected provided the conduct is undertaken with the intent to communicate an idea. The difficulty lies in determining whether conduct is intended to communicate an idea; if not then the conduct will not fall within the protection of the First Amendment. Assuming that the conduct is intended to communicate an idea (and is therefore deemed symbolic speech) the following test should be applied in determining whether an attempt to regulate that conduct will be upheld:

A regulation of conduct that is meant to an express an idea will be upheld if the regulation is within the constitutional power of the government provided that the regulation also furthers an important governmental interest. In addition, and this element is essential, the governmental interest must be unrelated to the suppression of speech. Finally, the incidental burden on speech (and there is sure to be one if the conduct was intended to express an idea), must be no greater than necessary.

A classic example would be the government regulating the burning of draft cards. Certainly, those who burn draft cards intend to make a statement regarding the right of the government to draft others into war, so the conduct falls within the purview of symbolic speech. But if the government is able to prove that a regulation against that act is intended to protect the government's interest in facilitating a smooth draft, and if the government can further prove that the interest is important and unrelated to the suppression of speech, then the regulation will be upheld provided the burden on speech is no greater than necessary.



Wednesday, May 7, 2014

MBE Essentials: Contract Assignments

A question from my book, MBE Essentials:


May an assignment be revoked or is it irrevocable?

Though consideration is not necessary for a valid assignment, if consideration is given in exchange for the assignment, the assignment is irrevocable; otherwise, the assignment is generally revocable. There are, however, situations in which an assignment is irrevocable even though consideration has not been provided in exchange for the assignment. Once the obligor has performed for the assignee, the assignor cannot revoke the assignment. In addition, even if no consideration has been provided, you should consider (always) whether there has been detrimental reliance. If the assignee has detrimentally relied on the assignor’s promise to assign his rights, then the assignor may be prevented from revoking that assignment.


**MBE Essentials contains 434 questions and answers spanning all subject areas tested on the MBE. It is available on amazon.com @ http://www.amazon.com/MBE-Essentials-Sean-Silverman/dp/1495948706/ref=sr_1_2?ie=UTF8&qid=1399472981&sr=8-2&keywords=sean+silverman

Or you can purchase and download it right here on the blog:
Buy Now