November 30th Notes

Legal Research & Writing
November 30th


Outline for Memo
-Statement of Facts
    -This is where the facts of Orca go here
-Issue Statement
-Discussion
-Conclusion

-Work on the Discussion section first.  This reduces the time to write the memo.

Rules Section Review
-No cases, No facts

General Rules
    1.-where did the doctrine originate (cite WA Practice) Stoebuck's
    2.-explanation or definition ("occurs when"... in the cases)(needs citation w/pin point from Washington Official Reporter)
    3.-list of the elements of constructive eviction (4 of them)
        -each is rule and requires citation to authority w/pinpoint
        -no single case with all 4, use several
        -list all 4 elements, then list cases with ;

Transition (Undisputed Elements)
    -Undisputed elements
    -Landlord's Act (from previous class notes)
Landlord's Case
The first element, landlord's act, is likely undisputed. 

For a constructive eviction to occur, it must be the act of the landlord or someone acting on the behalf of the landlord that is the cause of the interference to the the tenant, (no Pacific Reporter)

In Orca's case, this element is satisfied because it was Amber, the landlord, who gave permission to Aloha to begin the second shift operation that was caused the paint problems for Orca.

        -identify the element and tell that it is undisputed
        -provide explanation of the element with citation (pinpoint )
            -From case law "Needs to be the landlord or someone acting for the landlord.  And that's what caused the interference."
        -apply the explanation to the facts of Orca's case

    -Notice
        -identify the element and tell that it is undisputed
        -provide explanation of the element with citation (pinpoint )
            -Notice of the interference (tenant required to talk to landlord about interference so landlord has time to remedy)
            -NOT about vacating
        -apply the explanation to the facts of Orca's case

    -Vacate
        -identify the element and tell that it is undisputed
        -provide explanation of the element with citation (pinpoint )
            -Tenant to vacate property within a reasonable time
        -apply the explanation to the facts of Orca's case
        -Last sentence: Consequently, the only element that Amber can likely dispute is whether the premises are untenantable. 
            -Amber has the burden of proof, they will raise the issue

Specific Rules for Untenantability (Disputed)
    -Discussed 3 in class, write sentence for each one, follow each with a sentence with citation to authority, include pinpoint.
    -"... they focused on the severity of the interference, the degree of the landlord's control over the leased space, and the degree of specificity about the interference in the lease."(string cite here)(See signal)
   
Mottman Mercantile Co v. Western Union Telegraph (1940) 3 Wash. 2nd. 62
----Has definition of untenantable
----Must be used in specific rules
    -"...'untenantable and unfit for occupancy,' as used in leases, mean simply a condition which renders the premises unsatisfactory for the normal conduct of the tenant's business;..."

Analogous Case Presentation
-Orca's cases
-Amber's cases
Develop principle based topic sentence to introduce the case based cases
    -Better to write a nice intro sentence for each case to show immediately why we are using them
    -Explain why the case is important, explain central principle and explain what you have learned

"For instance in Aro Glass, the tenant leased space to use for a used car lot and in the lease, the landlord agreed to correct the deep puddles that occurred on the lot because the tenant knew that this would drive potential customers away.  The landlord failed in several attempts to correct the puddles and the tenant moved out. Aro Glass, 12 Wn. App. 6

Arguments
-Orca's Arguments
    -Plain
    -Analogous
    -Policy
-Amber's Arguments
    -Plain
    -Analogous
    -Policy

General Argument Sequence
Plain - gets the argument started
Analogous - most important arguments
Policy - helpful, but think broadly

Plain
-begins with an assertion
-uses the words of the statute or doctrine
-supports assertion using facts of the client's case


-begins with an assertion
Orca will argue that its situation is untenantable... because the Westlake Building is not fit for properly painting yachts, the purpose for which it leased the premises. 

-uses the words of the statute or doctrine
 to claim constructive eviction the interference must cause the premises to be unfit for their intended purposes John B. Stevens & Co v. Pratt, 119 Wash. 232, 234, 205 P. 10 (1922).

-supports assertion using facts of the client's case
Orca will argue that its situation is untenantable... because the Westlake Building is not fit for properly painting yachts, the purpose for which it leased the premises.  Orca told Amber about its specific painting requirements; Amber permitted Aloha to use the chemicals that are causing the poor quality paint finish on the yachts and did nothing to bring the building's air handling system into compliance.  As a result, Orca cannot use the premise for painting yachts, the purpose for which it leased the building. 

Analogous Arguments
1. Assertion
2. Comparison of Facts

Comparison
-Aro
--tenant identified need to correct puddles
--tenant knew the puddles would drive customers away
--landlord tried to correct puddles

-Orca
--Orca gave specifications to Amber for paint before lease signed and wanted paragraph 9 provision
--Orca knew problems with air, debris, would cause problems
--Amber ignored repeated requests for correction

Assertion
-Orca's situation is more untenantable than the one in Aro Glass.  There before signing the lease, the tenant told the landlord that the puddles needed to be eliminated just like Orca gave the paint specifications to Amber and negotiated the clause in the lease about its needs.  In Aro Glass, the landlord at least attempted to remedy the problem, but Amber never even attempted to correct the problem with the air handling system. 

Comparison
-WA Chocolate
--tenant leased for chocolate storage
--rats came from landlord space to tenant and invaded space ruining beans
--landlord tried to correct and failed

-Orca
--Orca leased the premises for painting yachts
--Amber retained obligation to maintain air handling system in buildings chemicals from aloha ruined paint
--Amber ignored repeated requests for correction

-Assertion
Orca's situation is more untenantable than the situation in WA Chocolate.  In the case of WA chocolate, the tenant obtained the lease for a specific use just like Orca leased the space from Amber to paint yachts.  In WA Chocolate, the interference of rats from the landlord was so severe that the tenant's property was seized, but Amber's lack of interference caused the paint to ruin on the yachts. 

Comparison
-Lindblom
--landlord changed staircase and rented hallway to hucksters
--the hucksters blocked the hallway
--the tenants businesses suffered

-Orca
--Amber allowed a second shift for Aloha without letting Orca know of the extra stress on the air filter
--Orca could not paint yachts and the business suffered
--Amber ignored repeated requests for correction

-Assertion
Orca's situation is more untenantable than the situation in Lindblom.  In the case of Lindblom, the tenant's businesses suffered due to the landlord's actions just like Orca's business suffered from Amber's action of allowing Aloha a second shift operation.  In Linblom, the landlord changed the staircase without informing tenants, just like when Amber did not inform Orca of the additional shift at Aloha.

Comparison
-John B. Stevens
--tenant asked for warehouses and docks to be repaired
--the landlord promised to repair
--the landlord ignored the repairs

-Orca
--Orca complained to Amber that they could not paint boats
--Amber had an obligation in paragraph 9 to maintain
--Amber ignored repeated requests for correction

-Assertion
Orca's situation is more untenantable than the situation in John B. Stevens.  In the case of John B. Stevens, the tenant complained that repairs were needed to the warehouse and docks just like Orca complained to Amber about the need for the air filter to be maintained. In John B. Stevens, the landlord ignored the repairs just like when Amber ignored the repairs for Orca.

-These are quick mash-ups that need more information and flow.

Policy Argument
-Examine reasons why legislature enacted the statute of why the court adopted a doctrine
-use those reasons to support your argument

Why does untenantability have to be there before constructive eviction can be found?
-Avoiding a lease is a serious outcome (need to keep people in leases)
    -small problems should not let tenants avoid leases

This is a better argument for Amber.
-tenant can not leaves leases easily

This may not be a good argument for Orca.
-can not force a person to stay in unacceptable conditions
-not a small issue when a property is unusable, it's a serious issue with contract
-landlord must be responsible to tenant

Amber will argue that policy supports its position.  Courts require untenability because avoiding a lease is a serious consequence.  Permitting tenants to use minor interferences to avoid leases that are no longer economically beneficial to them encourages wrong behavior.  Here, Orca located the larger space it tried to obtain in the Westlake Building and at a lower cost, both are economic benefits, Moreover, as state by the paint manufacture, Orca can use Gripp-All1 paint without problem in the Westlake Building. 

Mini-Conclusion
-1 or 2 sentences
-include the word untenantable  DO NOT include constructive eviction
-predict how the court will rule
-use "hedge word"  likely, probably, possibly
-use connector word page 719, 602, 603
-reader should be in agreement due to your previous statements

As a result, it is probable that the court will find that the premises are untenantable.

Novemeber 24th Notes

Fundamentals of Legal Practice
November 24, 2009

Review Dec 3rd
Page 219 to end of book

Dissolution
    -not called Divorce anymore
   
Statutory Marriage
1. license
2. marriage ceremony (w/ state authority)
3. competent parties (understand what you are doing)

-states and other countries vary with what marriage is, if the marriage is valid where you entered it, it is valid everywhere else
-WA will hold it valid if it is valid elsewhere  Article IV § 1

Common Law Marriage
1. parties of opposite sex living as a married couple
2. holding themselves at married in the public for a minimum period of time set by statute (generally 7 years)

-WA does not have common law marriage
-Creditors, like banks, do not like people not saying they are married later for joint liability

Palimony
-Marvin v. Marvin 1976
-were not married but she took his name, had joint banking, and he stated he could get half of his possessions
-more of a contract issues
    -promissory estoppel
    -unjust enrichment

Dissolution of Marriage
Annulment
-declare the marriage was never valid
-void ab initio (from the beginning)
-limited grounds for an annulment
    1. Sham Marriage: no one intended for the marriage (usually green card)
    2. Bigamy: can't have two spouses at same time, second marriage is void
    3. Underage Party: can't be under 18 or 16 w/ parental consent
    4. Incest: can not marry relatives, WA can not marry cousins (usually 1st)
    5. Mental Incompetency: contractual competency
    6. Intoxication: need to be very drunk to the point you don't know
    7. Duress: forcing marriage (shotgun wedding)
    8. Physical Incompatibility: refusal to ever have sex

Dissolution
1. Specific Grounds are required
-all 50 states are "no fault" meaning, you do not need grounds to divorce, no proof needed
    -You once had to prove: (no longer the case)
        -mental cruelty, adultery, abandonment, physical abuse
-WA does not require any specific statements
    -others just want it stated specifically

2. Minimal Grounds
    1. allege "irretrievably broken" or irreconcilable differences
    2. minimal residency requirement meet
        -court has an interest in your marriage
        -Nevada has a quicker divorce because the residency is easy 6 weeks

-if your spouse wants to divorce you, there is nothing you can do
    -you can slow it down w/ counsel or tactics to save marriage
    -interlocutory period (cooling off period)
        -WA is 90 days

-You can do a divorce by yourself with
Complete agreement on:
1. Property
2. Custody
3. Support (spousal and child)
-otherwise you will need a lawyer

Petition for Dissolution of Marriage
-petitioner (filer) and respondent

Custody
-WA visitation rights
    -Grandparents can not petition for visitation rights

Alimony (now called Maintenance)
    Two forms
    -Rehabilitative
    -Permanent

Custody
    -Physical Custody
        -where the child is, who's care
    -Legal Custody
        -responsibility of making decisions on the child's behalf
   
    -Joint Custody
        -courts prefer to split both
        -if travel is hard, legal custody is still split
    -if you can not split custody (generous visitation)

"Tender Years Doctrine"
    -children under 5 belong with mother
    -old school thinking
Now is: "Best interest of the child test"
        -who is the caretaker of the child (usually the woman)

Division of Property
-as long as it is done without coercion and with full disclosure
    -property agreement, does not have to be 50/50
    -important for both parties to have their own lawyers
        -in case there are challenges
    -community property statements
        -become tenants in common instead
    -not everything is community property
        -gifts, wills, some property

Division of Indebtedness
-responsibility of outstanding debt
    -judges decision on debt is not binding on creditors
        -take all debt responsibility
            -then you split the assets
$200,000 in assets
$140,000 in debt
take the debt and get $170,000 in assets
-that way you don't have to worry about spouse defaulting
-2 list property approach (make two list that are equal in value and give to spouse)

Final judgment of dissolution of marriage
    -document finalizes marriage (after 90 day cooling period)
    -either side can finalize it, not the petitioner


Contracts
-law is basically contracts, torts and criminal law

K = contracts

contracts
    -legally binding agreement
    (promises can be broken because they are not enforceable)

3 Parts of a Contract
1. Offer
2. Acceptance
3. Consideration - quid pro quo (this for that)

-need some understanding
-competency
-legal agreements

-in order for there to be a valid contract you only need 3, but to enforce it, it must be in writing

-damages you seek are to make you whole after the breach (varies on what you are seeking)
    -personal service contractors can not be enforced with specific performance
         (making a painter paint a house, then he ruins the house leading to another lawsuit)

Common law of Contracts
   
UCC - Uniform Commercial Code
    -bulk sale transfers, banking system
    -to get all the states to agree on business contractors
    -Louisiana does not have this, they use Napoleonic Code

Unilateral and Bilateral Contracts
Unilateral:
    -personal contracts: usually unilateral

Bilateral:
    -business contracts: agree to perform   

Executed Contract:
    -both parties have already performed

Executory Contract
    -one party have performed and the other has yet to perform

Express Contracts
    -parties lay out what they want and why the want it (negotiating)
    -oral or writing (most contracts are oral)

Implied Contracts
    -must look at conduct to figure out what they want
    (ordering food)

Valid Contracts
    -fully enforceable by the parties
    -properly formed with O, A, C

Void Contracts
    -totally unenforceable (never)
    2 Types
    1. Illegal
    2. Violate public policy  (paying someone to vote)(money to divorce, inherit)
        -destructive to society

Voidable Contracts
7 Types
(means one of the parties can opt out of the contract)
    -they are sometimes enforceable
-Minor: minor can leave anytime
-Fraud:
-Duress: forced into contract
-Drunk:
-Insane:
-Undue Influence: usually family or friend
-Bilateral Mistake: both think they are dealing with the same thing but not
    (either party can opt out)

Quasi Contracts (are not contracts) ("pretend")
-even though it is enforced as one
1. unjust enrichment- allow mistake to occur
    -people should not be allowed to benefit from others mistakes when they have knowledge just to get the benefit
    -painters coming to paint a house without a contract because they painted the wrong house

2. promissory estoppel- create the detrimental reliance
    -being stopped from making promises that are not enforced   
    -makes you responsible for the promises you make
    -"we could really use a guy like you" is not a job offer

*we pretend to prevent injustice

November 23rd Notes

Legal Research & Writing
November 23rd

Possible Amber cases:
Matzger v. Arcade Bldg. & Realty Co., 102 Wash. 423, 173 P. 47 (1918).
  
Analogous Case Arguments
-fact to fact comparison between a decided case and the facts of your client's case
-precedent base
-favorable
-distinguishing
-use words of comparison (just like, similar to)

Case Based Arguments (analogous)
Compare Orca to WA Chocolate
-In the case of WA Chocolate, the warehouse became infested with rats due to the lack of maintenance by the landlord.
-Similarly in the Orca case, the air filtration system came into disrepair and caused issues with Orca's business.

Compare Orca to Aro Glass
-Aro had a stipulation in their lease that the landlord would fix the puddles for the business.
-In Orca's case has a paragraph in their lease that the air filtration is vital to the business.

Compare Orca to John B. Stevens
-John B. Stevens found that the landlord was negligent and failed to keep the docks in good repair, even after notice.
-Orca notified Amber of the air filtration problem and they did nothing about the issues

Compare Orca to Lindblom
-Lindblom allowed hucksters to use the hotel causing a loss of business to the hotel.
-In Orca's, Amber allowed second shift for Aloha that caused damage to Orca's business.

Compare Amber to Farrow
-Farrow, movie goers were not coming because of the Depression, an external circumstances not due to tap dancing.
-Amber There is another kind of paint that Orca can use that does not cause the issue.

-each case has another renter in the building
-external circumstances  (depression, poor quality of movie equipment)
-Amber should review Orca's cases and give how the facts are not comparable

Rebuttal Arguments
-Farrow's case v. Orca case
-Orca needs to use the mirror finish paint to please their customers because they are yacht owners.

-Both cases were bringing the lawsuit as an excuse for poor business.  Tap dancing was not the main cause.  It was depression and equipment.  Orca is using the paint as an excuse to get a cheaper rent and more space that they wanted.
-fact of cheaper rent
-lost space to Aloha

-Orca would argue that they tried to buy the space from Amber prior to Aloha at the higher rent rate.  So there is not underlying motivation.

Orca's Cases
-Aro
-WA chocolate
-Stevens
-Lindblom

Amber's
-Farrow
-Matzger
-Distinguishing Orca's cases

Can Amber distinguish the cases?
Aro Glass:
    -Aro glass had no other choice
    -Orca has another choice and can use another paint product backed up by manufacturer

WA Chocolate:
    -WA could not control where the rats were coming from because of other tenants.  Health dept had to shut it down to protect public.
    -Orca Amber can not control the chemicals used by Aloha (but that statement may not want to be used because it plays well for Orca)  The chemicals can't be so harmful since the health dept. is not shutting Aloha down. (it doesn't leave to an untenantable situation)

John B. Stevens
    -Stevens the entire building was effected and deteriorated
    -Orca Amber only the air filtration system was effected and can be fixed.  (does not shine well on Amber)

Lindbloom
    -Lindblom could not perform business because of other vendors bring property value down.
    -Orca Amber could state that because Aloha is actually another yacht accessory vendor it should bring more business in.

STATEMENT
ISSUES STATEMENT
DISCUSSION SECTION OUTLINE
Introduction
    -General Rules Paragraph
    -Transition (Roadmap Paragraph)
        -Undisputed
            -Landlord's Act (cite case)
            -Notice (cite case)
            -Vacate (cite case)
        -Disputed
            -Untenantable (cite cases)
Disputed Element - untenantable
    -Specific Rules -  untenantable
    -Analogous case presentation
        -Cases favoring Orca
        -Cases favoring Amber
Arguments
    -Orca's arguments
        -Fact based (plain)
        -Case based (analogous)
        -Policy based
    -Amber's arguments
        -Fact based (plain)
        -Case based (analogous)
        -Policy based
    -Orca's Rebuttal
Mini-Conclusion - untenantable
CONCLUSION

Present our case first then the other
    -do not intermingle them
    -present all your cases first then other
    -Concise but clear
    -there are 4 cases

3 Things you must tell reader about each case:
1. Outcome
    -untenantable or not
2. Reasoning
    -reason why
3. Facts  
    -as they relate to the outcome and reasoning
    -facts that showed untenantable

Develop principle based topic sentence to introduce the case based cases
    -Better to write a nice intro sentence for each case to show immediately why we are using them
    -Explain why the case is important
    -explain central principle
        -explain what you have learned

-Use a conventional cause
    "In cases where the courts have found the element of untenantablity satisfied, ..."
  
-Complete with explaining why the courts concluded this
    "... they focused on the severity of the interference, the degree of the landlord's control over the leased space, and the degree of specificity about the interference in the lease."(string cite here)

-It needs citation to authority
    -string cite for all 4 cases
        -Order cases rule 1.4
    -signal rule 1.2
        -See implied (use short form where needed)

Use relevant facts of cases:
"For instance in Aro Glass, the tenant leased space to use for a used car lot and in the lease, the landlord agreed to correct the deep puddles that occurred on the lot because the tenant knew that this would drive potential customers away.  The landlord failed in several attempts to correct the puddles and the tenant moved out. Aro Glass, 12 Wn. App. 6
In another case..."
 
-Can use themed base in your paragraphs.
-Use tenant and landlord when talking about cases other than Orca and Amber.
-Use the terms Amber, Orca and Aloha.

Cases for Amber
-Apply same technique
    -develop principle based sentences with cite
    -present facts with short cite

Orca's cases
    -3 to 4 paragraphs
Amber's case
    -1 paragraph
Pages
    -1 1/2 pages

Write the case based presentations for Orca and Amber
Cite 7

Novemeber 19th Notes

Fundamentals of Legal Practice
November 19, 2009

11/19 - Decedents/Domestic
11/24    - Pleadings due - domestic
12/1 - KS Contracts
12/3 - review/some KS
12/8 - KS Contracts
12/10 - Final

Pleadings: Jurisdiction, Venue, Signature
Double Spaced

Two main clauses on a will:
1. Dispositive clause
    - the passing of property indicates whom the money, property, ownership rights will be given
    1. Request: gift of personal property
    2. Devise: gift of real property

2. Residuary clause
    - the rest of the property indicates where the remaining assets of the estate shall go after bills have been paid
    -usually donated

-Heirs are not responsible for debt after going through assets of trustee

Simultaneous death clause
    -usually only if you are married
    -assumed the beneficiary died first
    -presumed that your family will get your property

-Effectuate the intent of the testator/deceased
    -if you die without a will
    -guessing on your idea of distribution

Executor
    -if you have a will, the one appointed for handling the estate

 Personal Representative
    -if you do not have a will, the one appointed for handling the estate

Guardianship Clause
    -here is what we want for the children
    -with no will, the court will appoint and is usually your closest living relative and will continue to try
    -if no one is found, they become a ward of the state
    -you are not required to choose a relative
    -parens patriae: best interest of the child

Trust Clause
    -a device whereby the trustor takes property into a trust that is administered by a trustee for a beneficiary
    -create for specific use of your property, control over your money

Types of trust
1. inter vivos
    -you create in your lifetime
2. causa mortis (testamentary trust)
    -you use your will to create it (you die)

Charitable Trust: interest to your favorite charity

Spendthrift Trust: small amounts are paid off to beneficiary

Special Purpose: specific purpose

Special Needs Trust: dependent on government benefits, you put money here to keep them

Attestation Clause
    -short paragraph written between the signature that the signature is mine and witnesses were there

Self-proving Affidavit
    -signed by testator that the signature is mine and witnesses were there

Statutory Elective Share
    -You can not disinherit a spouse
    -the disinherited spouse can either take what they got in the will or whatever the state's automatic percentage is (30-50%) of the state
    -only in a non community property state
        - that all property after the marriage is jointly owned
    -in community property states
        -the property is already owned by the spouse, no need for clause

"Per Stirpes" (right of representation)
    -indicates that is a particular beneficiary dies before the testator, the share shall pass to his lineal descendants per stripes
    -pass property to your lineal descendants (directly related by blood and are lower on the family tree)
    -pro children or pro grandchildren?
        -grandchildren only get what their parents represent

to my lineal descendants per capita - direct to grandchildren to split
to my lineal descendants per stirpes - to your children directly to split
grandchildren and children to share and share alike per capita - all split

-adopted children are the same as natural children
-illegitimate children are heirs of the mother but not of the father (must be acknowledged)

Probate
    -court procedure where the property is divided, whenever someone dies
    -Purpose
    1. verify the validity of will
    2. inventory of property of deceased
    3. provide creditors of the deceased opportunity to make claim against estate
    4. ensure that the title is transfered properly to beneficiary

-anyone can have a representative probate

Sequence of Probate
1. Petition
2. Administration is prepared
3. Oath of witness to will
4. A court file is opened
    -actual notice: known creditors, written notice to
        example: bank, visa, car, friends
    -constructive notice: unknown creditors, notice in the newspaper (legal notice), run for a certain period of time
        example: people that come forward with debts
    -WA 120 days statute of limitation on the creditor claim (from day of notice)
5. Inventory prepared and filed
6. An accounting is prepared and filed
7. Tax statements are obtained and filed
    -Death Taxes (inheritance taxes)
        -was designed to breakup estates believe government deserves it
        -up to 3.5 million exempt from tax
             -inheritance rate 55%
    Problems with this:
    1. Already taxed twice (income, corporate, then inheritance)
    2. You have to sell property to pay inheritance tax
8. Property is transfered
    -Receipt of beneficiary: it is received and then filed
    -Title has to be conveyed by personal representative's deed
        -can't give you a warranty deed because he is dead, so a different deed is needed
9. Closing documents prepared
    -petition for discharge: everything is done and you are released
   
Living Wills
    -not a will, not about living
    -actually medical directive
        -requests to pull plug, brain dead, vegetative state
        -clear, cogent, convincing evidence of wishes
        -Cruzan v. Missouri 1990
            -mva, parents wished to unplug after years, state says no, only takes living will due to constitutional obligation on life, liberty and property protection from the state, due process is needed
        -Quinlin (NJ)
        -Suhaivo (WA)

Online for free:  http://www.doh.wa.gov/livingwill

November 17th Notes

Fundamentals of Legal Practice
November 17, 2009

How to take his exams
-Needs to be condescending, explain everything, pretend he knows absolutely nothing about the law or explanation
-Needs you to explain law and apply it
-Give you facts on purpose (but you can argue any side)
-You can quote his question in the essay
-If he asks a question he wants to hear all the torts or all the duties, even if you don't think it might be there


Real Estate

no lien affidavit - seller claims no liens on property
    -Construction liens - up until 90 days after completion to file the lien dates back to completion
        (used to be called these, but are now construction liens)
        -Mechanic's liens: landscapers, electricians
        -Materialmen's liens: who supply mechanics

Recording - filed in public record
    -law requires constructive notice
    -first in time, first in right
        -banks lending must record, if not recorded first lose rights to money first

Title Search
    -abstract: the report on the property

Title insurance
    -insurance that the title is a true representation of the property
        -covers possible hidden liens

Claim of lien
    -order to force the owner to pay the amount due

Degree of Title   Page 355
    Fee simple absolute - highest ownership you can have
        -means you have 100% ownership and 100% of title
            -married 50% ownership and 100% title
Other degrees in descending order:
    Life estate - You don't own it but can live in it
    Easement
    License
    Leasehold - possession of

Page 356-357
-Closing Standards
Banks require homeowners and title insurance
   

Estate Law
-your property is your estate

If you die with:  Intestacy in WA (RCW 11.04.015) (without a will)
Spouse and Kids: 
    -Spouse gets all community property and 1/2 of the separate property
    -Kids get 1/2 separate property

Spouse/Parents/Siblings but no kids:
    -Spouse gets all community property and 3/4 of the separate property
    -Parents/Siblings get 1/4 of separate property

Spouse, no kids, no parents, no siblings
    -Spouse gets all community property and all of the separate property

Kids only
    -per capita: every one gets an equal share
    -per stirpes: kids get equal share/grandkids share from kids

No spouse, no kids, no siblings
    -Parents

No spouse, no kids, no parents
    -Siblings

No spouse, no kids, no parents, no siblings
    -Grandparents

No spouse, no kids, no parents, no siblings, no grandparents
    -issue of Grandparents meaning Aunts and Uncles

No spouse, no kids, no parents, no siblings, no grandparents, no aunts, no uncles
    -"Escheats" to the state of WA

Page 365
Testator
    -one who leaves property

Heir
    -one who receives property

Devise
    -real property

Bequeath
    -personal property

How to revoke a will
1. Intentional destruction
    -you don't want it anymore, simply revoked, must be intentional
2. Superseding will
    -will #2, revoking prior rules
3. Interlineation
    -lining out, revoking only parts of the will
    -can not add to the will with this (equal dignities rule)

In order to make a will:
  *important for final*
Capacity    
    -Competency:  (loosely defined)
        -Nature and extent of property owned (what they own)
        -Natural objects of your bounty (who your heirs are)
    -Need to be over 18

Amendment of a will
    -called a codicil
        -to make a minor change to the will
    Why codicils are a bad idea:
    1. Required to be executed with the same formalities of the original will
    2. Once you start modifications, it is not structurally sound


Form of a Will
1. In Writing
    -Oral wills (nuncupative will) are largely ineffective
        Is valid if:
        -"foxhole wills" you are deployed military
        -$500 cap
        -no real property
    -Holographic will
        -handwritten will by testator
        Is valid if:
        -entirely in hand of the testator
        -witnesses
        -some exclude real property

2. Must be signed by testator
    -not valid if not signed

3. Witnessed
    -varies sometimes 2 or 3
    -must be disinterested (not taking under the will)
    -must see testator sign and witnesses signs (depends on state)
   

November 16th Notes

Legal Research & Writing
November 16th

Citing to secondary sources
    -only look at BlueBook rules

Law Review Article
    -Author's full name
    -Title of Article (italicized)
    -Volume #
    -Abbreviated law review name (table T.13)
        -If not there, make your own within the rules
    -Beginning Page #
    -Year of Publication (in parenthesis)

Richard A. Posner, Goodbye to the Bluebook, 53 U. Chi. L. Rev. 1343 (1986).
(this is the article she liked)

*Citing to University of WA Law Review  (Wash. L. Rev.)*

Books
-For Single Volume
    -Author's full name
    -Title (italicized)
    -Section, Paragraph, Page # (only use page # when you don't have the others)
    All together in one parenthesis:
        -Edition # (in parenthesis)
        -Publisher (in parenthesis) (legal include, non-legal do not)
        -Year of Publication (in parenthesis)
    Examples: Hornbooks

-For Multi-Volume
    -Volume #
    -Author's full name
    -Title (italicized)
    -Section, Paragraph, Page # (only use page # when you don't have the others)
    All together in one parenthesis:
        -Edition # (in parenthesis)
        -Publisher (in parenthesis) (legal include non-legal do not)
        -Year of Publication (in parenthesis)
    *For multiple authors, you can write all out or use (et al.)*
    Examples: Treaties, Practice Books

A.L.R. (American Law Review)
    -Author's name
    -Word "Annotation"
    -Title (italicized)
    -Volume #
    -Abbreviated title of the book itself (see her chart not in Bluebook)
    -Beginning Page # of Annotation
    -Year of Publication (in parenthesis)

Short Form
    -Author's last name
    -supra (do not use for cases or statutes) (do not use id)
    -Section, Paragraph, Page # (only use page # when you don't have the others)


Orca Case
Update:
-Mr. Metzger (from Aloha) gave us a letter from Amber Properties
-Letter stating they reviewed specifications for filter from Orca, that the filter works well and that they are approving their second shift
*Copy of the letter under projects*

How this affects our elements?
Elements:
    1. Landlord's Act
        *Undisputed now*
        -No longer disputed due to this letter
        -Landlord clearly knows what is going on and approved it
    2. Conditions "untenantable"
        -Disputed   
    3. Notice
        -Undisputed
    4. Tenant Vacate
        -Undisputed

Discussion
    -Mention undisputed
        -Landlord's Act, Notice, Tenant Vacate
    -Only "untenantable" conditions are disputed

Updated Roadmap:
STATEMENT
ISSUES STATEMENT
DISCUSSION SECTION OUTLINE
Introduction
    -General Rules Paragraph
    -Transition (Roadmap Paragraph)
        -Undisputed
            -Landlord's Act (cite case)
            -Notice (cite case)
            -Vacate (cite case)
        -Disputed
            -Untenantable (cite cases)
Disputed Element - untenantable
    -Specific Rules -  untenantable
    -Analogous case presentation
        -Cases favoring Orca
        -Cases favoring Amber
Arguments
    -Orca's arguments
        -Fact based (plain)
        -Case based (analogous)
        -Policy based
    -Amber's arguments
        -Fact based (plain)
        -Case based (analogous)
        -Policy based
    -Orca's Rebuttal
Mini-Conclusion - untenantable
CONCLUSION

Use pages 102 and 237 for Book References

General Rules Paragraph
    -Do sentence for each piece
1. WA Practice
    Constructive Eviction is an outgrowth of the doctrine of actual eviction
    -Cite WA Practice
2. Explanation of Constructive Eviction
    -(Aro Glass/Coulos Cases)
3. Elements of Constructive Eviction
    1. Landlord's act   
    2. Conditions "untenantable"
    3. Notice
    4. Tenant vacate
4. Burden of Proof
   
Transition Paragraphs
    (start with the undisputed)(end with the disputed)
    -Undisputed Element
        -identify the element
        -provide explanation or definition (a rule with cite to authority)
        -Apply rule to the facts of the case
       
Example of Transition Paragraph
-Identify Element:
-Explain the Element: (cite here)
-Apply to the Facts:

Landlord's Case
The first element, landlord's act, is likely undisputed. 

For a constructive eviction to occur, it must be the act of the landlord or someone acting on the behalf of the landlord that is the cause of the interference to the the tenant, (no Pacific Reporter)

In Orca's case, this element is satisfied because it was Amber, the landlord, who gave permission to Aloha to begin the second shift operation that was caused the paint problems for Orca.

-Repeat with the other two undisputed
-End with the disputed element untenantable
    -(development is later, no need to explain)

Dobrentai v.Piehl
-Element: Landlord's Act Case
-Not Helpful
-Rejected

Lindblom v. Berkman
-Element: Untenantable
-Facts: Classy Hotel leases lobby to Peddler and made if difficult to get to other stores and rooms, Peddler blocked staircase, Tenant losing money
-Constructive Eviction YES!
(How good/bad the space needs to be to be untenantable is our job)
-Accepted

John B. Stevens & Co. v. Pratt
-Element: Untenantable
-Facts: Deteriorated docks and warehouses, too unsafe, ships doc elsewhere, lose business
-Constructive Eviction YES!
-Rule: If the landlord agrees to keep something in repair, then landlord is obligated otherwise constructive eviction (will need page # to cite)
-Accepted

Myers v. W. Farmer's Ass'n
-Element:
-Not Helpful
-Rule: Good explanation of Constructive Eviction (need page # to cite)
-Rejected

Farrow v. Storck
-Element: untenantable
-Facts: Silent Movie Theater has Tap Dance studio move in above, ruined business, during the depression, projector also had technical issues
-Could help Amber's case
-Not sure

Erickson v. Elliott
-Element: Notice
-Rule: If you need a cite for Notice (cite page)
-Rejected

Untenantable Case Cite Rules (Specific Rules)
-Get the page numbers for all
-Write all the rules complete in a declarative sentence
    -Paraphrased rules
-Follow with full citation
-From general rule to specific

Cases to Cite:
-WA Chocolate:
    -Where landlord retains control of part of premises, retains duty to keep that part tenantable
-Aro Glass:
    -Where lease contains specific provision covering the problem that develops landlord has breached covenant
-Aro Glass:
    -Landlord's breach of lease covenant that causes property to become no longer fit for purposes intended is substantial interference- untenantable
-Can add more cases if you find them

Which cases favor Orca?
-Needs Constructive Eviction granted
WA Chocolate - Rats
Aro Glass - Puddles
Lindblom v. Berkman - Docks
John B. Stevens & Co. v. Pratt - Huckster

-Need to figure out how these cases affect Orca
    -Look at the facts and compare for each case (DO THIS FOR NEXT CLASS)

In which cases did the courts NOT grant constructive eviction?
-Favor Amber
Farrow v. Storck- Tap Dancing
May need more cases (only spend 30 minutes looking for another case)
    -Needs untenantable as an issue
    -Court says NO, it is tenantable

-Write
    General Rule
    Transitional
    Specific Rules
    -cite
-Cite 6
-Cases for Amber

November 10th Notes

Fundamentals of Legal Practice
November 10, 2009

MEMOS
-Grades harsher than what he really means
-Page 80  Statute must be quoted verbatim
    -Can not put (1) elements into the quote
    -You can number elements but do not use numbers in the papers
-Page 81 Must be broken down into all those parts
    -Must relate class material to projects (mens rea)
    -What he talks about, you talk about
    -Always use past tense where correct
-Tie everything to the question at hand
-Is Harry a person?
    -common sense definition, also criminal law definition(mens rea)
-Intentionally issue
    -intentionally injure or kill (accidental killing needed to be mentioned)
    -does not mean intentionally kill means just kill
-Hunting in the Everglades is not everywhere
    -Game preserve in Everglades
-Is the Florida Panther native?
    -Do not assume native
-What does native mean?
    -indigenous? What did they mean?
-Are the quail native or game animals?
    -Can't kill native
-Game preserve
    -Protect native animals not all game animals
    -It is a game preserve (for game animals)
    -What is a game preserve?  Is it for hunting? Is it a refuge?
-State Designated
    -Jurisdiction
    -Everglades are a national park
        -Do they have state jurisdiction?  Is it tribal?  Is it federal?
    -Designated how?
        -physical with signs, proclamation, on a map
        -state does not have duty to label
        -Everglades is a large area
-Could have been quail and panther?
-Area
    -how big is that space?
-Proofing needs to be there
    -Take out all the What ifs?
    -Follow directions
    -Never begin a sentence with But, And, Also, Now
    -No prepositions at the end
-Hit it, discuss it and move on
-Remember all elements need to be proven
-Always answer why and give the explanation
    -declarative statements don't work, need persuasion

***Pleadings Due Nov. 24th***
-Can not have typos much more point heavy


Midterm
-Bulk of it 70%
Ethics
Intentional torts
Negligence

Introduction
No introduction of paralegal or job description

Chapter 1
Page 13  How the law is formed
-what composes it
-mandatory precedent
    -same court, higher court
-persuasive precedent (authority)
    -everything else, other states, not a higher court
-Both are Primary
-Do not cite secondary
(not primary(law itself) or secondary authority(law reviews, books))

-Know court system

Article 3 US Constitution
----where does the court system comes from

Chapter 2
Damage systems
-example of each

remedies on 25/26

3 differences on criminal and civil
-right to appeal, jury, burden of proof

Very little on briefing and reading cases
    -what pro se means
    -what amicus curiae brief is

Chapter 3 (nothing)

No reporters
-maybe the regional system
    What state in the regional reporters is WA in?  Pacific

No citations forms

Legal Research Chapter 4
Pocket part
    What is state encyclopedia?
Shepard's
Reversed and overruled
-examples

No Writing Skills Questions Chapter 5
-efficient use of time page 160
    -budget your time
        -3 questions are 70% of your exam

Ethics  Chapter 6
-know the duties (10)  All of them are in example
    -Why it is unethical? Explain
    -Spot the duty, what she did wrong, this is a breach of what
One of the essays is about a Paralegal that does something wrong

Civil and Torts   Chapter 7
-Intentional Tort question
-spot the tort, define the tort, apply the tort
    -crushing skull with bat
        -battery, injury of touching, bat to head
-the big 7 torts, a few extras
    -know the elements
    -use the facts in the questions to apply to
        (big dog, apartment, small car, screamed)
    -show you read the facts, Question the extra parts (drinks with the speakers)
    -Do not get hung up, show you know what they are and move on
        -Just say that the privacy is 4 torts, even if you don't know them offhand
    -battery, harmful touching or of something attached to the person
    -Multiple Torts, only the one we discussed in class

Comparative Negligence
    -just know what it is

There is a Negligence question
    -first establish there is a duty(conduct activity as to not cause harm/damages to others), was it breached (something you did or did not do), average reasonable person in the same situation, causation was it foreseeable result of the breach?, does not make you liable in crazy situations(like the monkey), too "Attenuated"(opposite of foreseeable USE IT IN THE ANSWER), the damages are easy to see
    -just because someone is hurt, does not mean you get something
    -needs duty, breach of duty, causation, and damages
    -less duty on your own property, more duty in public place
    -Do Not Ignore His Facts

Bring highlighter, Paper, Black or Blue Pen
-about 2 hours on the essays, other questions


Real Property            Page 332
-Joint Tenancy
    -own the property 50/50 and right of survivorship
    -can sell but does not form a new joint tenancy, becomes tenancy in common
        -only in community property states (only 9 states have this)
    -Transfer Rights: need the approval

Community Property State
    -acquired since the marriage there is a presumption
    -No Community Property: lawsuits, gifts, inheritances, everything before marriage
    -Death of a Spouse
        -in the will, they can dispose of their half however they want to
        -if you do not do anything, it goes to the spouse

Condominiums
    -own the unit, not the common areas,
    -same as real property

Grantor
    -sells or transfers
Grantee
    -to whom the real estate is transfered to

Deposit Receipt Contract
    1. listing of personal property     (not fixture)
    More in book Page 336
   
Commission 6%
    -then split with agents
        -then split with agent and firm

Deed
-proves it is your house
    1. Warranty Deed
        -Seller has title to what he is selling, Guarantee
       
    2. Quitclaim Deed
        -No warranties, just the interest in the property, if any
        -example on page 346
            -heir on property with interest
        -His example: Dec 1988, Married July 1992, Sold Dec 1992
        -did not change title, 6 months of CP, wife could claim interest in property
        -He signed warranty, She signed quitclaim

November 9th Notes

Legal Research & Writing
November 9th

Citing to Cases
-String Citation
    -More than one authority in a citation sentence
        -2 cases, burden of proof with elements,
    -Separate with ;
    -Follow rule 1.4 for order of authorities
    -Use this for 3 or more citations;  text, cite, text, cite.
    -This is good for two cites:  text. cite;cite.
    -Sequence rule 1.4
        -Newest to Oldest
        1. US Supreme Court
        2. Federal Circuit Court
        3. Federal District Court
        4. State Courts
            -Alphabetize by state, Supreme, Appellate
        -Sort by court, then look at date

-Explanatory Parenthetical  (will need to use in memo)
    -explanation in parenthesis at the end of a cite, after the year
    -if the case facts are important to your case DO NOT put them here
    -text(1998)(explanation).
    -shortest way to get information across, usually not complete sentences
        -short phrase or clause

-Quotations
    -Rule 5
    -Less than 50 words, just enclosed in "text"
    -More than 50 words, indent 1/2 inch from both margins, single space & do not use quotation marks
    -Case names are italicized it, DO NOT italicized actual person's name only case
    -Grant example: needed to lose are and added ...  Also, quote within quote is done with ' '

-Changing a Quotations   
    -Errors (number wrong, verbatim transcript, grammar issues)
        -BlueBook after mistake add [sic]
        -Just make the correction in [ ]
        (she accepts either way)
        -Example:  she seen
            -she seen [sic]
            -she [had] seen
            -she [saw]

-Signals
    -Rule 1.2
    -She wrote up the citation exercise on how to use them properly
    -Provides a clue to reader about reliability of the material being cited.
        - No signal, highest authority
    -Precede the cite and follows the italicized (goes with case name)
    -Signals have their own punctuation

-Prior & Subsequent History
    -Provide to explain history of cases
    -Even negative history
    -Prior History - depends on posture of writing, at writer's discretion
        -aff'd in part, (affirmed in part)  Appellate
        -aff'g in part , (affirming in part)  Supreme

Project 3 Orca
-Cases reading order
    -Oldest first to the newest
   
-Practice Tip
    -Remove party names and use instead landlord, tenant or buyer, seller
    -Do not use plaintiff, appellant, defendant, respondent
    -Consistent pattern for discerning cases
        -chart material
       
Hockersmith
-Supreme Court - No Constructive Eviction
-Facts: City lowered streets, store entrance too high, customers can't get in
-Rule: Must be Landlord's act
-Rule: Quiet enjoyment clause in lease does not insure against third parties who are wrongdoers

Johnson-Lieber
-Supreme Court - No Constructive Eviction
-Facts: Tenant leased space for warehouse, Tenant knew heavy machinery, landlord did not know use, RR platform connected loading dock to entrance, RR cut it off and moved track
-Rule: Must be Landlord's Act
-Rule: Landlord not responsible absent specific provision in lease

Washington Chocolate
-Supreme Court - Constructive Eviction
-Facts: Tenant leased space to store chocolate, rats infest, could not use chocolate
-Rule: Demise premises must be untenantable
-Rule: When the landlord retains control of part of the premise, landlord retains duty to keep that part of the premises tenantable

(Need to find more cases to learn what is tenantable)

Aro Glass
-Appellate - Div II- Constructive Eviction
-Facts: tenant leased for used car lot, landlord tried to fix, deep puddles keep customers away, tenant lost business
-Rule: Landlord must have notice of problem
-Rule: Tenant must vacate within reasonable time
-Rule: CE arises when L intentionally or injuriously interferes depriving T of beneficial enjoyment of demised premises (Coulos v. Desimone)
-Rule: Where lease contains specific provision covering the problem that develops, L has breached covenant

Elements of Constructive Eviction
1. Landlord's act that causes injury
    -Hockersmith or Johnson-Lieber
2. Conditions must be "untenantable"
    -Washington Chocolate   
3. Landlord must have notice   
    -Aro Glass
4. Tenant must vacate
    -Aro Glass

Landlord's act, Hockersmith cite, untenantable, WA Chocolate cite, notice, Aro cite, vacate, Aro cite.

The elements are 1, 2, 3, 4. hocker;choco;aro;aro.

For Aro: since there are multi pages for pinpointing:
575, 578, Vol#

Elements of Constructive Eviction for Orca
1. Landlord's act    -DISPUTED
2. Conditions "untenantable"    -DISPUTED
3. Notice    -UNDISPUTED
4. Tenant vacate    -UNDISPUTED

Outline for Memo
-Statement of Facts
-Issues Statement
-Discussion
-Conclusion

(after research one element may be less disputed and may not need to be mentioned heavily)

-DISCUSSION SECTION OUTLINE
Introduction
    -General Rules Paragraph
    -Transition (Roadmap Paragraph)

Disputed Element - landlord's act
    -Specific Rules - landlord's act
    -Analogous case presentation
        -Cases favoring Orca
        -Cases favoring Amber
Arguments
    -Orca's arguments
        -Fact based
        -Case based
        -Policy based
    -Amber's arguments
        -Fact based
        -Case based
        -Policy based
    -Orca's Rebuttal
Mini-Conclusion - landlord's

Disputed Element - untenantable
    -Specific Rules -  untenantable
    -Analogous case presentation
        -Cases favoring Orca
        -Cases favoring Amber
Arguments
    -Orca's arguments
        -Fact based
        -Case based
        -Policy based
    -Amber's arguments
        -Fact based
        -Case based
        -Policy based
    -Orca's Rebuttal
Mini-Conclusion - untenantable

When writing rules:
-use declarative
-DO NOT start with case name
-one sentence for each rule
-organize from general to specific
-pinpoint cite for every rule sentence
-remember to short cite when needed

Actual Memo Introduction
1. Washington Practice
    -CE is outgrowth of doctrine of actual eviction
    (may be good way to start memo) cite WA Practice
2. Explanation of CE (Aro Glass/Coulos)
3. Elements of CE

Transitional Paragraphs
-raise and dismiss undisputed elements first (notice, vacate)
    -name the element, explain why it is undisputed using facts

Specific Rules - Landlord's Act

Write specific rules - Landlord's Act
-declarative sentences
-organize from general to specific

Also needed:
-Explanation of untenantable
    -John B. Stevens & Co. v. Pratt
-More cases showing what is untenantable
    -Dobrental v. Piehl
    -Lindblom v. Berkman
    -John B. Stevens & Co. v. Pratt
    -M.E. Meyers v. Western Farmers Ass'n
    -Farrow v. Storck
    -Erickson v. Elliott

Novemeber 5th Notes

Fundamentals of Legal Practice
November 5, 2009

Midterm will be an old exam
    -Prior to Section 7.3 (page 218)
    -After that section will be on final
    -Will go over exam on Tuesday night
    -Always an intentional tort essay, negligence essay, ethics essay
    -Dozen or so, multiple choice, T/F, fill-in blank
    -You need to think through the exam
    -find the torts and name them, all 7 primary, the ones that were talked about in class
    -No outlines, Only essay
    -double spaced work (even handwritten)
    -black or blue pen only, no pencils
    -Can bring paper, and Blue Book

Panther Memos are not good. 

Start looking at your Pleading Assignment


Real Property (Not Real Estate)

Land (dirt, empty lot)
+     -also includes erections (buildings, sheds, structures)
Structures on the Land
+    -also includes personal property that has become closely associated with the property (some lamps, carpet)
Fixtures

Private Property:   
When you say "fixture", you have concluded it is land.  Once something is called a fixture, it presumably stays with the property.

So when does personal property turn into real property?
   -These are the three things the law will look at, they don't need all three.
    -Attached/Affixed  (Method? Permanency?)
        -Carpet v. Rugs
    -Intent (of parties)
        -What people assume stays with the property
    -Adaptation (unique or custom for the structure?)
        -Unique fish tank for wall

Commercial Property
-Trade Fixtures
    -Once something is called a fixture, it presumably goes with the tenant.
Why?
1. Presumed useless to new tenant who has a different business purpose
2. Trade fixtures are generally expensive

The tenant must:
1. Repair any removal damage, restore to prior condition
    -removal of pizza oven and accessories must be clean
2. Promptly
    -you must claim the fixtures promptly or they can stay for the next tenant


Mortgages
1. Promissory Note (used to be Mortgage Notes)
    -Promise to pay (IOU)   

2. Trust Deed (used to be Mortgage Deed)
    -Security for the Promissory Note (IOU) in case you don't pay
    -Lien, or Encumbrance on the property
    -You own the house/car until procedure to foreclose start
        -The bank does not own the house, merely a security interest

Residential
-Use Trust Deeds (TD)
    -Why is it no longer Mortgage Deed?
    1. No deficiency judgment
        (If the bank sells for less they can not come after you for the balance, but if they sell for more, they return the extra money.)
    2. "Power of Sale"
        -if you default, they can directly go to sell the property
        -Used to be Judicial Foreclosure (very expensive to conduct)

$1,000,000 piece of property
    $600,000 1st TD from Bank #1  5 1/4 %
    $150,000 2nd TD from Bank #2  11%  (junior lien holder)
    $50,000   3rd TD from Bank #3   22%  (junior lien holder)

Subsequent Mortgage  (Junior Lien Holder)
-Bank #2 needs to sell for $750,000
    -first money goes to first lien holder
    -means they have higher interest rates
-Bank #3 has very high rate

How Banks categorize:
High Risk Borrower
    -Default rate at 19%

Low Risk Borrower
    -Default rate at 2/10th%

-Mortgages usually have a due on sale clause
    -You pay off the mortgage before you sell the house
    -You keep the extra money
    -Risks are different to each person buying
        -"Assumption" of mortgage: original borrower is liable too

Purchase Money Mortgages
    Also called (Installment contract, Owner financed)
    -Property sold with no bank involved
    -Includes the right of Strict Foreclosure
        -the prior owner can take the house back
        -you lose the house and the payment

Balloon Mortgages
    (Adjustable Rate Mortgage, Teaser Rates, Creative Loan)
    -Smaller payments then sudden higher payments
    -Artificial low rate then high rate spike
    -Higher interest rates

Amortization
    -most mortgages have this
    -Initial payment is interest and only some is principal (99% interest, 1% principal)
    -Interest is tax deductible and payment never changes
    -Later on it is the opposite, mostly paying principal

Satisfaction of Mortgage
    -Notarized statement from lender that a mortgage is paid off
   
Easements
    -Right to use property that belongs to another
    -Usually  a particular purpose
    -Very hard to break

1. Appurtenant Easements
    -Dominant tenement can use a servient tenement
    -designed for the benefit of a particular piece of property
    -Servient serves the dominant (they have the easement)
    -The Dominant tenement is benefited
    -Dominant care access to Servient highway road

2. Easement in Gross
    -Do not benefit a particular piece of property
    -Benefits the owner of the easement
    - Dominant cattle to Servient pasture

3 ways to make an Easement
1. In writing
    -draft up document, how much, how long, how much
    -filed publicly (of record)

2. By Implication
    -Easement by necessity
    -You get minimal use of easement
    -You pay for that easement
    -Example of property being blocked off, need egress
        -hard to refuse the easement, can fight cost of it or making it more minimal
        -can not increase the usage

3. By Prescriptive Right
    -Easement by starting to use it, over a period of time without protest
    -Usually 7-15 years, done openly
    -Must be done with hostility (without permission)
    -Reason "No Trespassing" signs on it

Licenses
    -Temporary Easement in Gross
    -to use property with time limit, with limit in usage
    -Example: Parking, Amusement Park, Pick-your-own patches

Co-Ownership
    -Property ownership can share property
    -Unlimited number can co-own

1. Tenancy In Common (TIC)
    -2 or more owning in common tenancy
    1. Undivided
        -Each has an undivided interest in it all
        -Each person owns it all, not pieces of it
    2. Unlimited number of owners
    3. Don't need to have equal ownership
        -You can have different % of ownership
    4. Sell your % "alienable"
    -If they die, their heirs take their share

2. Joint Tenancy with Right of Survivorship
    -when one dies, the dead's interest transfers to the others automatically
    -the shares must be equal
        -if they are eschewed intent is strained
    -can not be willed, because it is automatic

November 3rd Notes

Fundamentals of Legal Practice
November 3, 2009

Midterm 11/12
Pleadings  11/24

Pleadings: Notice Pleadings, the more things you put in, the more you must prove
--make it short and precise

Midterm: 3 essays, intentional tort, negligence, ethics, will tell us the chapters he is picking from, focus on ideas and concepts, through Chapter 9

On Final: new material, no review of past material

-With material today, just know the terms and basic ideas

Chapter 7          Page 253
-Opening Statements
-Plaintiff almost always goes first, case in chief
-Called direct examination
-Called cross examination
-Then the defendant does the same

-You can only exam on the issues brought up
-Cross examination is limited by the issues in direct
-Cross is more narrow in scope
-You can redirect and recross as things get more specific

-Then closing argument what the evidence, witness and testimony's means
-Plaintiff gets the final closing (gets 2 closes)


Civil Discovery       Chapter 8
-is a two way street, you must play defense and offense

3 primary purposes:
1. To prepare the case more thoroughly
2. Clarify issues
3. To locate, obtain, and preserve evidence

-reasonably calculated to lead to discoverable (admissible) evidence
-no hearsay rules in discovery
-discovery is very broad

Privileged information
--doctor/patient , spousal immunity, etc.
--these are privileged, you can not ask about them
--the law thinks these relationships are more important than the truth
-----you can not violate this

5th Amendment is not absolute
Can not be granted for:
-granted immunity
-been convicted previously of the crime
-if the statute of limitations has run

-If it is irrelevant information you can not claim discovery

-"Work Product": the thoughts and mental strategies of the attorney, not everything he does (pleadings are not) it can not be used

-Testimony of experts who will not be called as witnesses can not be used for discovery

-Annoyance, embarrassment, oppression, you can not abuse discovery and may subject you to tort liability

Federal Rule 26 (for later use)
-mandatory disclosure

Tools of Discovery    Page 271
1. Depositions ("Depos") CR 30
    -nonparty or party
    -oral questioning, under oath with a court reporter
    -in attorney office, questioning witnesses
    -most powerful and useful
    -but should not use all the time
    -can take it anywhere
    -they can be expensive and hard to coordinate
    1. Only discovery device you can use against a non-party
    2. Only tool that is spontaneous   

Page 276, 277
-To use for pleadings, do not selectively bold face

2. Interrogatories ("Rogs") CR 33
    -party only
    -written questions to be answered under oath in 30 days
    -done with lawyer
    -inexpensive, easy to produce
    -good background information   
    -Federals limit to questions to 25
    -States are changing to limitations due to abuse
    -can't have too many subparts (must be discrete)
    -Really need to watch your wording (play 20 question) page 285

3. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes (RTP) CR 34
    -party only
    -Court rule 34  Request for Production
    -production of documents and things
    -you can examine physical things, you can enter property to examine large things

4. Physical and Mental Examinations CR 35
    -party only
    -you can only do them if their mental/physical state is an issue
    -personal injury, a doctor you select

5. Requests for Admission (RTA) CR 36
    -partly only
    -narrows the issues of the trial
    -written request to admit or deny matter pertaining to the case
    -can make the trial easier and predictable

Sanctions
-for failure to cooperate with discovery
-heavy penalties for this action

Criminal Law
-Felony vs. Misdemeanor
    -felony are defined by term in prison, over a year, loss of civil rights
    -misdemeanor are 90 days to a year in a jail
-Mala in Se and Mala Prohibita Crimes
    -in Se crimes are inherently evil
    -Prohibita is protecting society or revenue raising

Mental State
-Intent does not equal Motive
    -motive is why you did it
    -intent is mental state   
        -knowing  (murder)
        -reckless   (manslaughter)
        -negligence
-all crimes have a mental state, they all have intent, it is a level of mental state
-motive is not always a part of every crime

Mens rea - a guilty act with a guilty mind (mental state)
Actus reus - a guilty act

Hate Crimes
    -punishing at a greater level if it is motivated by hate
    -works well from a societal point
    -What about as a lawyer?
        -at a legal level, it is difficult to deal with

Matthew Shephard - 1998 murder in WY for being gay, tortured into a coma
----killed by Aaron McKinney and Russell Henderson

-How do you prove that it was due to hate?
-Raise burden of prosecution
-Difficult to prove
-All crimes are hate crimes

-the legal support for your opinions
-make sure you can back up your choices
--look at the Amendments

-Do not have to prove why you did it, motive is not an element in any crime
-Just the intent (mental state is important)

Insanity    Page 302
-If you are insane you can not form mens rea, there is no crime no matter what the actus reus (the act) is
-insane, commit, not guilty
----if you regain your sanity you walk
-sane with the crime, then go insane, then you get tried

Accessory  Page 303
-Accessories before and after the fact
    -Dr. Mudd (doctor charged with Lincoln's conspiracy) for setting Booth's leg
    -"your name is mudd"

-Small children no mens rea
    -below 8
    -8 to 12 presumed no mental state
        -but state can rebutted to prove they have mens rea
    -Over 12
        -mens rea but may be juvenile court

The Insane
-very specific definition
-percentage plea bargain by reason of insanity 2/10th of 1%  -because of the definition

-The M'Naughten Rule: the inability to tell right from wrong

Other ruled used sometimes:
-used in NY
-Irresistible impulse test - knew it was wrong but could not stop myself

Page 308
Brady v. Maryland  1963
-turn over all inculpatory(guilty) and exculpatory (innocent) material to the defense
---State must show everything showing your innocence and guilt

Motion to Exclude (Suppress)
-4th Amendment (search warrants and evidence)
    -if 4th A. is violated
-penalty is to exclude the evidence found
-prior to 1961 Mapp v. Ohio 
    -some states had this rule, some did not
    -inform the jury of that fact instead
    -Thought she had bomb making material (misdemeanor) but had porn (at the time a felony)
    -made it mandatory to have exclusion in all states

Plea Bargaining
-in exchange for right to trial you plead guilty to a lesser offense
-90% of cases are plea bargained
-prosecutor has no power to make that deal, the judge must approve it
-usually approved
-dangerous felonies NO

Miranda v. Arizona  1966   5-4 vote
-Miranda warning - police must give you prior to custodial investigation
-unpopular since you are blocking confessions
-it is not voluntary unless they know their rights
-right to a lawyer
(signed Miranda cards)

Escobedo v. Ill.  1964
-if you already had an attorney, the lawyer has a right to be present

November 2nd Notes

Legal Research & Writing
November 2nd

Pinpoint Cites:
-aka Jump Cites
-Exact page number where the rule or quote can be found

In WestLaw
-under the case name you will have the TITLE/WHERE/PAGE
-State Reporter has page number with *
-Pacific Reporter has page number with **
---These are found throughout cases

Washington Style Rules
-only pinpoint cite to Washington Reporter

Short form citations:
-citing to case after full cite is provided
-use only first party's name (unless confusing)

General Short Form
Larson, 152 P.2d 154.     Bluebook
Larson, 21 Wn.2d 572.  Washington Style Sheet Rules

Pinpoint Short Form
Larson, 152 P.2d at 155.     Bluebook
Larson, 21 Wn.2d at 575.  Washington Style Sheet Rules

-Only place you use the word "at"

Homework Citation 3

Project 3    Orca Case
Outlining a case chronologically helps to understand what the situation is

My List

March 2007        -Bennett started 7 year lease with Amber
                              -Lease change, addition of ¶9
                              -Air filtration unit passed inspection

July 2008        -Bennett business doing well
                           -Looking to expand business
                           -Someone else looking to lease building next door
           
September 2008    -Amber leased to Aloha Enclosures

January 2009    -Bennett's difficulties began
                              -Bennett had to repaint 4 yachts

February 2009    -Bennett took late night visit to Aloha Enclosures
                               -Noticeable chemical odor
                               -Witnessed worker dipping sheets of plastic
                               -Gripp-All took air samples from air filtration systems
                               -Gripp-All results hold Aloha's chemical responsible
                               -Gripp-All states the air filtration system is not maintained properly
                               -16th: Bennett gave Amber copy of letter from Gripp-All
                               -16th: Bennett stopped painting boats

March 2009        -1st: Bennett calls Amber about situation
                               -18th: Bennett calls Amber about situation

April 2009        -3rd: Bennett calls Amber about situation
                            -Amber had no plans to fix problem
                             -15th: Bennett calls Metzger of Aloha
                             -15th: Amber states the air handling system is capable of filtering
                             -16th: Bennett calls Amber, refuse to fix problem
                             -16th: Bennett begins looking for another space to work

May 2009        -Bennett moves out of Westlake
                           -Bennett stops paying rent to Amber
                           -Bennett informs Amber that he is moving out and ceasing payments

September 2009    -18th: Amber send Bennett a letter demanding back rent

October 2009    -Attorney Letter's Date

Official Listing

-Mar. 2007        -Orca leases 80,000 sq. ft. Westlake Bldg.
-July 2008        -Orca tries to lease the other 40,000 sq. ft.
-Sept. 2008        -Amber leases other 40,000 sq. ft. to Aloha
-Jan. 2009        -Orca's paint problems begin
-Feb. 2009        -Bennett's night visit; tells Gripp-All & Amber
-Feb. 9, 2009    -Letter from Gripp-All to Orca
-Feb. 16, 2009    -Orca letter to Amber; Bennett stops painting
-Mar. 1, 2009    -Bennett calls Amber, nothing
-Mar. 18, 2009    -Bennett calls Amber, nothing
-Apr. 3, 2009    -Bennett calls Amber, nothing
-Apr. 15, 2009    -Bennett hears nothing, Bennett calls Aloha & learns details of
                                 second shift; calls Amber - nothing.
-Apr. 16, 2009    -Bennett calls Amber, tells about Aloha call, nothing
-May 15, 2009    -Orca moves out of Westlake Bldg.
                              -Orca sends letter to Amber
-Sept. 18, 1009    -Amber letter demanding payment


What legal theories might provide relief for Orca?

Issue:
-Breach of contract
    -Look for Damages
(She does not want us looking at damages, too broad)

-Eviction
    -Leasehold
    -Tenant is ousted by landlord
        -Did the landlord push him out?
        --Constructive Eviction (constructive = legal fiction)
-The landlord constructively put the tenant out by not making the land suitable for use

Was Orca constructively evicted from the Westlake Building?

Elements:
-Find the elements of the Washington common law doctrine of constructive:
--not in the RCW
--you find common law in cases (case law)
---Notes of decision in the annotated statute is where we found case law prior

You start this research in Digests of the case law (bright blue called Washington Digest)
--Don't need Pacific Digest (just Washington)
--Use Washington Digest
---Need search terms
    -Eviction, Constructive,  Look for both
    -Will have the cases
---Need to learn what Constructive Eviction is
    -Look at Practice Books (brown books)  Washington Practice
    -Look for both definitions
    -It will provide cases and definitions

Get smart first!

-Washington Real Property Desk Book (3 vol.)
    -Look up in index constructive eviction
    -It will have forms, DIY law book

-Law Review Articles
    -Very good law review article on Washington property from UW Law board member (Professor Stoebuck), but it does not have anything different from the other books

Preparing your Research Plan
1. Issue
2. Jurisdiction
3. Sources
4. Search Terms

Problems using Westlaw
-Sometimes the materials you need are not in WL
-Sometimes they are owned by LEXUS

At Law Library
-Washington Real Property Desk Book (owned by LEXUS)
-Washington Practice
-Case Law - Reporters
-Law Review Articles

Westlaw
-Washington Practice
-Case Law
-Some Law Review Articles (only pieces, date restriction, university restriction)

Westlaw
-Terms & Connectors search
---see the class notes for specifics

Enter: "constructive eviction!"       (! is a root expander allows for several combinations and root words)
Check: Washington Practice Series (under treaties)    datebase name: waprac
Click: Search

These are the 3 sections to look at:

17 Wash. Prac., Real Estate § 6.32 (2d ed.)
--cases at the bottom
----will have to read and pull

17 Wash. Prac., Real Estate § 6.33 (2d ed.)

17 Wash. Prac., Real Estate § 6.34 (2d ed.)

-Figure out the elements from these cases
    -There are four elements

Homework

Print off info from Washington Practice

Read and Brief these cases
Johnson-Lieber
Hockersmith
Aro Glass
Washington Chocolate Cases

Find elements (do this last)