Real Estate Law III
What is due process?
A fair hearing by an impartial judge
What is a substantive law?
A law that establishes and controls the rights and duties of parties
What is a procedural law?
A law that sets out the methods for enforcing the rights and duties under substantive law
What is the Civil Law System?
After the Norman Conquest, the civil law system began to work itself into the English legal system. The origins and model of civil law are found in the massive collection of Roman law ordered by the Emperor Justinian in the sixth century CE. This collection was lost to the West within decades of its creation. However, it was rediscovered and became the basis for legal instruction in eleventh-century Italy. Subsequent generations of legal academics throughout Europe modified the principles of ancient Roman law to meet their current needs. The civil system was carried throughout the European continent and was the basis for the legal systems found in France, Spain, Austria, the Netherlands, and Germany. England also created a civil law system. England's legislative body, the Parliament, began to codify laws. The court system continued to apply the common law to cases after there were written laws. In the United States, the original legal system was created from the combination of common law and civil laws developed by the legislatures of the original 13 colonies, which were of English ancestry. So the system that grew in the United States is built on a dual system of codified laws and case precedent. In the American system, cases are the primary source of law. Statutes are viewed as intrusions into the common law and consequently, most courts interpret them narrowly.
What is Amendment 1 of the Bill of Rights?
Amendment 1 - Freedom of speech, press, religion, peaceable assembly, and to petition the government
hat is Amendment 10 of the Bill of Rights?
Amendment 10 - Powers of states and people
hat is Amendment 13 of the Bill of Rights?
Amendment 13 - Abolition of slavery
hat is Amendment 14 of the Bill of Rights?
Amendment 14 - Civil rights
hat is Amendment 15 of the Bill of Rights?
Amendment 15 - Right to vote for blacks and former slaves
What is Amendment 2 of the Bill of Rights?
Amendment 2 - Right for the people to keep and bear arms, as well as to maintain a militia
What is Amendment 3 of the Bill of Rights?
Amendment 3 - Protection from housing of troops without the owner's permission
hat is Amendment 4 of the Bill of Rights?
Amendment 4 - Protection from unreasonable search and seizure
hat is Amendment 5 of the Bill of Rights?
Amendment 5 - Right to due process, prohibition of double jeopardy and self-incrimination, just compensation for the taking of private property
hat is Amendment 6 of the Bill of Rights?
Amendment 6 - Trial by jury and other rights of the accused
hat is Amendment 7 of the Bill of Rights?
Amendment 7 - Right to civil trial by jury
hat is Amendment 8 of the Bill of Rights?
Amendment 8 - Prohibition of excessive bail, as well as cruel and unusual punishment
hat is Amendment 9 of the Bill of Rights?
Amendment 9 - Protection of rights not specifically enumerated in the Bill of Rights
What is another function of LAW?
Another important function of law is enforcing promises. Many of our daily activities and how we function in society depend on promises being met. For example, a builder could not begin to construct a home unless he or she could depend on the buyer's promise to pay for the home. If the builder could not rely on that promise, he or she would be forced to require an advance payment. In such a situation, the buyer would then have to depend on the builder's promise to complete the construction. The law enforces promises through the use of contracts. This enables us to feel secure in our dealings with strangers. The use of contracts forms the basis of all business transactions. We'll talk in detail about contracts in a later chapter.
What are Appellate Courts
Appellate Courts California's two types of appellate courts are the courts of appeal and the California Supreme Court. Courts of Appeal The court of appeal's primary function is to determine if a superior court made an error and, if so, to correct it. Appeals from the superior court are brought to the court of appeals. California has six districts that have jurisdiction over several counties. The six appellate courts are located in San Francisco, Los Angeles, Sacramento, San Diego, Fresno, and San Jose. The appellate court does not give new trials. It reviews the court files and transcripts from the superior court to decide if legal errors were made. The appeal is heard by three justices who will render the court's decision. If the court of appeals determines there was an error, the case will be sent back to the trial court for resolution. The courts of appeal can agree with the decision of the trial court, agree in part and disagree in part, or disagree and reverse the trial judge's decision. Supreme Court The Supreme Court is California's highest court. It can review cases decided by the courts of appeal. The court conducts regular sessions in San Francisco, Los Angeles, and Sacramento. Sometimes, the court holds special sessions in other cities in California. There are seven justices on the Supreme Court, and at least four must agree on the final decision. All other state courts in California must follow a decision made in the Supreme Court. In most circumstances, a case from superior court must go through a court of appeal before it could be appealed to the Supreme Court. However, death penalty appeals and disciplinary cases involving lawyers and judges are not heard in the court of appeal. They go directly to the Supreme Court.
What are CA 2 types of appellate courts?
Appellate Courts California's two types of appellate courts are the courts of appeal and the California Supreme Court. Courts of Appeal The court of appeal's primary function is to determine if a superior court made an error and, if so, to correct it. Appeals from the superior court are brought to the court of appeals. California has six districts that have jurisdiction over several counties. The six appellate courts are located in San Francisco, Los Angeles, Sacramento, San Diego, Fresno, and San Jose. The appellate court does not give new trials. It reviews the court files and transcripts from the superior court to decide if legal errors were made. The appeal is heard by three justices who will render the court's decision. If the court of appeals determines there was an error, the case will be sent back to the trial court for resolution. The courts of appeal can agree with the decision of the trial court, agree in part and disagree in part, or disagree and reverse the trial judge's decision. Supreme Court The Supreme Court is California's highest court. It can review cases decided by the courts of appeal. The court conducts regular sessions in San Francisco, Los Angeles, and Sacramento. Sometimes, the court holds special sessions in other cities in California. There are seven justices on the Supreme Court, and at least four must agree on the final decision. All other state courts in California must follow a decision made in the Supreme Court. In most circumstances, a case from superior court must go through a court of appeal before it could be appealed to the Supreme Court. However, death penalty appeals and disciplinary cases involving lawyers and judges are not heard in the court of appeal. They go directly to the Supreme Court.
What are judicial circuits?
Areas served by the US Court of Appeals
What are Articles 1-3 of the US Constitution?
Articles 1-3 of the Constitution divide the powers among three major branches of government: legislative, executive, and judicial. Each branch has a major area of responsibility. Legislative - Congress has the power to make the laws. Bills are introduced into either the Senate or the House of Representatives, where they are considered, debated, sometimes amended, and voted upon. Any bill passed by both houses is sent to the President. If the President signs it, the bill becomes law. If the President vetoes it, it may still become law if re-passed by a two-thirds vote of both houses. Executive - The President has the power to enforce the laws. He or she may sign or veto bills, issue pardons for federal crimes, and remove executive officials without approval from the legislative or judicial branches. With Senate approval, the President may appoint members to the executive branch and federal regulatory commissions and he or she may appoint ambassadors and federal judges. Judicial - The courts have the power to enforce, interpret, and determine the validity of the law. The courts also make law in the sense that in cases where there is no legal precedent, the decision of the court becomes binding, or at least serves as precedent, when similar cases arise.
What are LAW, Morality and Ethics?
As we have said, laws are the minimum standards that a society will tolerate. It's clear that many of society's laws are closely connected to the ideas of justice and morality. We can define morals as a person's standards of behavior or beliefs regarding what is right or wrong. Morals define an individual's personal character. Principles are the foundation for our morals and are defined as fundamental truths or assumptions for beliefs. There are many moral issues that the law does not address. Those issues are left up to an individual's conscience and to families, churches, and public opinion. Ethics are rules of conduct or accepted behavior based on moral principles. They are subjective rules that depend on specific circumstances. Ethics are typically defined as standards of conduct applied to a group or society. An action can be legal but not moral or ethical. An action may be moral or ethical but illegal. As an example, in the past slavery and the Holocaust were legal but unethical. In some countries, aiding certain citizens is illegal but ethical. Ethical reasoning requires persons to go beyond the basic requirements of the law.
The Constitution expressly authorizes the power to:
As we said earlier, Congress has the power to make laws. This power is granted by the Constitution, either expressly (enumerated powers) or implicitly. The Constitution expressly authorizes the power to: Levy taxes Regulate foreign and interstate commerce Provide for the nation's defense and general welfare The Constitution also gives Congress the power to make laws that are "necessary and proper" for carrying out its enumerated powers. The implied powers include making any law that is not prohibited by the Constitution or one that does not violate the letter or spirit of the Constitution. Laws in certain areas can be made only by the federal government. Some of these areas include commerce, the military, immigration, and bankruptcy. In other areas, both the federal government and the state governments can make laws. In real estate, you see this most frequently in fair housing/discrimination laws and in environmental laws. If a situation arises where a state law is in conflict with a federal law, or if federal law expressly states that it preempts state law, then the federal law takes precedence.
How are cases settled in CA?
Because there have been so many court decisions, lawyers have a massive amount of precedent to pull from when trying cases where the participants have disagreeing points of view. Lawyers rely on precedent. When making judgments, the courts weight the most recent decisions of their own higher courts more heavily. However, if they can find no applicable precedent within their own state court, they will look to the decisions of higher courts in neighboring states or decisions of the federal courts. Unfortunately, with so many states trying similar cases, decisions relating to the same issue can and frequently do disagree. Conflicts also arise within a state itself as a number of courts within the state system may rule differently on the same issue. This conflict of laws or law interpretations will last until the disagreement is settled by a higher court. In California, differences in court opinions within the state are settled by the California appellate courts and ultimately by the California Supreme Court. If the conflict came from the federal district court system, it will be settled at the appellate court of the circuit in which the district court is located. Conflicts between various appellate circuit court decisions are eventually settled by the United States Supreme Court.
What are the Bill of Rights?
Bill of Rights As we mentioned earlier, the first 10 amendments of the US Constitution collectively are known as the Bill of Rights. Amendments 13, 14, and 15 were added after the Civil War. These amendments protect the rights of individuals by limiting government power. Here is a synopsis of those amendments. Amendment 1 - Freedom of speech, press, religion, peaceable assembly, and to petition the government Amendment 2 - Right for the people to keep and bear arms, as well as to maintain a militia Amendment 3 - Protection from housing of troops without the owner's permission Amendment 4 - Protection from unreasonable search and seizure Amendment 5 - Right to due process, prohibition of double jeopardy and self-incrimination, just compensation for the taking of private property Amendment 6 - Trial by jury and other rights of the accused Amendment 7 - Right to civil trial by jury Amendment 8 - Prohibition of excessive bail, as well as cruel and unusual punishment Amendment 9 - Protection of rights not specifically enumerated in the Bill of Rights Amendment 10 - Powers of states and people Amendment 13 - Abolition of slavery Amendment 14 - Civil rights Amendment 15 - Right to vote for blacks and former slaves
How does the Bill of Rights protect individual rights?
By limiting government power
Why did Spanish civil law form the basis for California's early legal system?
CA was originally under Spanish Control
What are the 2 types of courts in CA?
California has two types of courts - trial courts and appellate courts.
What do we call the overall accumulation of judicial decisions?
Case Law
What did the Romans contribute to the legal system?
Civil Law
Who are teh parties involved in a Civil Lawsuit?
Civil Lawsuit Parties Involved The parties involved in a civil case are: Plaintiff - The party who brings a civil case claiming to have been injured by the wrongful conduct of a defendant. Defendant - The party being sued. In some cases and courts, a defendant may be called a respondent. Attorneys - The persons who practice law and act as an advocate for a party. Attorneys are also called counselors and lawyers. Judge - The public official who presides over a case and resolves disputes by issuing judgments. Jury - A group of persons selected to decide factual issues. Persons who serve on juries are called jurors
What is Civil Law?
Civil and Criminal Civil law is the law of private rights and duties. An example of a civil law is a law providing that all property sale contracts must be in writing. This is a civil law because it addresses the duties between private parties. Any violation of a civil law is an offense between the parties, not an offense against the whole community. A person who suffers injury due to the act of another person typically has the right to sue that person for compensation. When a person brings such a suit, it is called a civil suit, a civil action, or civil litigation.
Define civil law and criminal law.
Civil law is the law of private rights and duties. Criminal law is the law of public rights and duties.
At the "Trial" step in filing a civil law suit, what is the Closing Argument?
Closing Argument This is the time when each party summarizes and gets inferences from the facts, links the facts to the law, and argues to the jury why it should grant a verdict in such party's favor. A party may refer to testimony, documents, or any other evidence that was admitted. As with the opening statement, a plaintiff goes first, then the defendant. Here, however, a plaintiff may also be permitted a short rebuttal argument.
What are the ways to Collect a Judgement post trial?
Collecting a Judgment In most cases, a lawyer will not agree to take on a case if the defendant does not have insurance or if the defendant's financial condition would make collection unlikely. If the defendant has insurance, there will likely be no problem. But if the defendant does not have insurance to cover the judgment, there are two avenues available. Judgment Lien - The plaintiff can secure his interest by claiming and obtaining a lien against the defendant's real property. If the defendant never pays, the plaintiff can foreclose on the lien hoping to collect the judgment from the proceeds of the forced sale of the property. Garnishment - If the defendant is employed, the plaintiff can use wage garnishment to collect the judgment in installments. The defendant's employer is served with an earnings withholding order. The employer must then set aside some percentage of the earnings. However, usually 75% of an employee's earnings are exempt from garnishment. Even with these avenues available, some plaintiffs will never collect their judgments. Some defendants have no wages or assets or may choose to file bankruptcy to discharge the entire debt.
What is the basis of law in the United States?
Common law
What are four areas of difference between civil law and criminal law?
Concerns Party filing the case Burdens of proof Goals
What are court decisions?
Court Decisions As we mentioned earlier in this chapter, common law is the overall accumulation of judicial decisions, also known as case law. Attorneys research case law routinely to prepare their cases. However, new cases requiring interpretation come up all the time. When an existing precedent cannot be found, the judge's decision will produce a new legal principle.
What is Criminal Law?
Criminal law is the law of public rights and duties. Criminal law creates and controls offenses committed against the whole community. We call criminal law violations crimes. Some examples include assault, burglary, and robbery. The government takes more interest in criminal acts than it does other types of injury. The government will often take action to prosecute an individual accused of a crime, even without cooperation from the victim. On the other hand, a personal injury civil case will only go to trial if the injured person decides to sue.
At the "Trial" step in filing a civil law suit, what is the Defendant's Case Presentation
Defendant's Case Presentation This presentation is similar to the plaintiff's, just in reverse. As with the plaintiff, a defendant presents its case to the court by submitting evidence that is relevant to its defenses. The defendant conducts the direct examination of each witness, and the plaintiff will have an opportunity to conduct a cross examination. After the defendant has called all of its witnesses and submitted all of its other evidence, the defendant will rest its case.
What laws belong exclusively to the states and not to the federal government?
Divorce law and the common law of torts and contracts remain under the domain of the individual states.
What are local ordinances?
Enactments by local legislative bodies such as the city council or the town board
What is the Executive Branch of the Government?
Executive - The President has the power to enforce the laws. He or she may sign or veto bills, issue pardons for federal crimes, and remove executive officials without approval from the legislative or judicial branches. With Senate approval, the President may appoint members to the executive branch and federal regulatory commissions and he or she may appoint ambassadors and federal judges.
Some of the federal agencies involved in real estate-related issues are:
Federal Agencies and Real Estate Several federal administrative agencies have the power to make rules and regulations that carry out the statutes passed by Congress. Although these rules and regulations are not law, they have the force and effect of law. The agencies also have the power to enforce the law, meaning they can mandate compliance with the law, forbid actions, and levy penalties and fines for any violation of the agency's rules, regulations, and their underlying statutes. These agencies can use the court system to enforce the law and to prosecute violations or they can use their own internal procedures through an administrative hearings process. Some of the federal agencies involved in real estate-related issues are: The Federal Trade Commission (FTC) The Department of Housing and Urban Development (HUD) The Federal Housing Administration (FHA) The Internal Revenue Service (IRS) The Environmental Protection Agency (EPA)
Some of the federal laws that apply to real estate include:
Federal Laws and Real Estate There are numerous federal laws that impact real estate. These laws range from consumer protection to anti-discrimination laws. Some of the federal laws that apply to real estate include: Civil Rights Act of 1866 Civil Rights Act of 1968 Section 504 of the Rehabilitation Act of 1973 Housing and Community Development Act of 1974 Equal Credit Opportunity Act of 1974 Other laws that impact real property and real estate practice include: Fair Housing Amendment of 1988 Title II of the Americans with Disabilities Act of 1990 (ADA) The Housing for Older Persons Act of 1995 (HOPA) Real Estate Settlement Procedures Act (RESPA) Fair Credit Reporting Act Equal Credit Opportunity Act Truth in Lending Act Interstate Land Sales Full Disclosure Act Foreign Investment in Real Property Tax Act Internal Revenue Code Federal Bankruptcy Act
What is Garnishment with regards to Collecting a Judgement?
Garnishment - If the defendant is employed, the plaintiff can use wage garnishment to collect the judgment in installments. The defendant's employer is served with an earnings withholding order. The employer must then set aside some percentage of the earnings. However, usually 75% of an employee's earnings are exempt from garnishment. Even with these avenues available, some plaintiffs will never collect their judgments. Some defendants have no wages or assets or may choose to file bankruptcy to discharge the entire debt.
What do appellate courts do?
Hear and make decisions on the appeals from the decisions of the trial courts
What are the implied powers that the Constitution gives to Congress?
Implied powers include making any law that is not prohibited by the Constitution or one that does not violate the letter or spirit of the Constitution.
Important sources of law in the United States include:
Important sources of law in the United States include: The U.S. Constitution Federal laws and statutes State constitutions State laws and statutes Local ordinances Rulings of federal, state and local agencies Court decisions
What is a Judgement Lien?
Judgment Lien - The plaintiff can secure his interest by claiming and obtaining a lien against the defendant's real property. If the defendant never pays, the plaintiff can foreclose on the lien hoping to collect the judgment from the proceeds of the forced sale of the property.
What is the Judicial Branch of the Government?
Judicial - The courts have the power to enforce, interpret, and determine the validity of the law. The courts also make law in the sense that in cases where there is no legal precedent, the decision of the court becomes binding, or at least serves as precedent, when similar cases arise.
At the "Trial" step in filing a civil law suit, what is the Jury Deliberations?
Jury Deliberations After receiving their instructions, a court official will take the jury to a conference room to deliberate the case. The jury will debate, discuss, and mull over the testimony, exhibits, and jury instructions until it reaches a decision.
At the "Trial" step in filing a civil law suit, what is the Jury Instructions?
Jury Instructions After closing arguments, the jury will get its instructions from the judge. The jury needs to know what the law is so that it may apply the law to the facts. Jury instructions are summaries of the law that a judge reads and then gives to the jury to aid in deliberations.
Definition of LAW
LAW is the rules that govern and guide activities and associations among and between individuals, societies, and governments. The law has many purposes in our society. Laws Set standards Preserve order Settle disputes Safeguard liberties and rights Let's look at each of these functions more closely.
What is the "Discovery" step in filing a civil law suit?
Lawsuit Steps - Discovery Discovery is the process of each party gathering relevant information from each other or from third parties. The clients and their attorneys research the law, review and organize documents, and interview witnesses to evaluate the merits of claims and defenses. The issues of the case determine how extensive these steps need to be. Discovery is usually the longest part of the case. It begins just after a lawsuit is filed and often continues until shortly before trial. During the discovery period, the parties ask each other and other persons for information about the facts and issues of the case. The parties collect this information formally through written questions known as "interrogatories", requests for copies of documents, and requests for admission, which means they ask a party to admit or deny statements of fact. Conducting depositions is another important way to acquire information. In a deposition, the attorneys for the parties question witnesses under oath and a court reporter records their answers. The attorneys use the depositions to learn more about the facts of a case and about what the different witnesses say happened. Attorneys can use depositions at trial to show discrepancies in a witness's story or to question the witness's reliability. Sometimes an attorney will use recorded testimony from a deposition at the trial in place of a witness who cannot attend the trial in person. Expert Witnesses Many times a claim or defense requires support from expert witnesses to explain technical information or validate an argument. The attorneys might need the testimony of one or more experts to describe the connection between the defendant's conduct and the loss experienced by the plaintiff, or the existence and amount of the plaintiff's damages. Motions Before trial, the parties may use motions to ask the court to rule or act. Motions usually refer to law or facts in the case, but sometimes they seek clarification or resolution of procedural disputes between the parties. Some motions decide issues without trial. One example is a motion for summary judgment, which asks the court to dismiss part or all of a plaintiff's case or a defendant's defense. Other motions might ask the court to order a party to produce documents or to exclude evidence from the trial. Timing The length of a lawsuit depends on the issues of the case, the amount of discovery needed, and court scheduling and availability. The parties usually decide the timing of discovery. The trial dates are set by the court. Timing and scheduling differ between state and federal courts.
What are Post Lawsuit Steps?
Lawsuit Steps - Post Trial Appeal Following trial, a party displeased with the result may appeal. During an appeal, a party asks a higher court to review the trial court proceeding. The parties present their arguments in briefs, which are submitted to the appellate court along with the record of evidence from the trial court. The appellate court usually reviews a case for legal error only. Except under rare circumstances, the appellate court will not review factual evidence or override a jury's findings of fact. The appellate court states its decision in a document called an opinion. The appellate court will uphold the verdict if it finds that there was no error in the trial court proceeding. However, if there was an error, the appellate court can reverse the verdict or order the trial court to conduct a new trial. An appeal can extend the litigation process by a year or more. Collecting a Judgment In most cases, a lawyer will not agree to take on a case if the defendant does not have insurance or if the defendant's financial condition would make collection unlikely. If the defendant has insurance, there will likely be no problem. But if the defendant does not have insurance to cover the judgment, there are two avenues available. Judgment Lien - The plaintiff can secure his interest by claiming and obtaining a lien against the defendant's real property. If the defendant never pays, the plaintiff can foreclose on the lien hoping to collect the judgment from the proceeds of the forced sale of the property. Garnishment - If the defendant is employed, the plaintiff can use wage garnishment to collect the judgment in installments. The defendant's employer is served with an earnings withholding order. The employer must then set aside some percentage of the earnings. However, usually 75% of an employee's earnings are exempt from garnishment. Even with these avenues available, some plaintiffs will never collect their judgments. Some defendants have no wages or assets or may choose to file bankruptcy to discharge the entire debt.
What is the "PreTrial" step in filing a civil law suit?
Lawsuit Steps - Pretrial After discovery is completed, courts will typically hold a pretrial conference to prepare a trial plan, which includes a strategy regarding the entry of evidence such as testimony and exhibits. The conference is held as close to the start of trial as is reasonable and at least one attorney who will conduct the trial for each party must attend. Before the conference, the parties meet and consult to premark and exchange all trial exhibits and to discuss the contents of a proposed pretrial order, including the names of all witnesses a party intends to call to testify at trial. After the conference, the court will enter a pretrial order that recounts the action taken at the conference and controls the course of the trial. It is also during this pretrial period that the attorneys and the parties will revisit the fact that the trial will be expensive, time consuming, and unpleasant. The parties will re-examine those costs against what they may gain and how likely they are to win at trial. At this point, the parties may consider a settlement of some sort. Over 95% of civil cases settle before a judgment, and most of those settle before a trial begins. If the parties cannot agree on a monetary settlement, the case will proceed to trial.
What is the "Trial" step in filing a civil law suit?
Lawsuit Steps - Trial At trial, the parties present evidence in support of their claims or defenses to a jury and/or judge. A trial is made up of: Jury selection Opening statement Plaintiff's case presentation Defendant's case presentation Plaintiff's rebuttal case Closing argument Jury instructions Jury deliberations Verdict/Judgment
At the "Trial" step in filing a civil law suit, what is Jury Selection?
Lawsuit Steps - Trial - Jury Selection At trial, the parties present evidence in support of their claims or defenses to a jury and/or judge. A trial is made up of: Jury selection This is the process of selecting a group of individuals to decide factual issues. States and courts differ on how potential jurors are called for jury duty. On any given trial day, the court forms jury "pools" to be available for trials that occur that day. The potential jurors are brought to the gallery of the courtroom and are called randomly one at a time to fill the jury seats. Juries may differ in the number of jurors that hear a case depending on the state, courts rules, or the type of case. But juries of either six or twelve jurors are common. Each party, with the judge's permission, is allowed to dismiss potential jurors for reasons such as bias; these are called challenges for cause. Each party can also dismiss potential jurors for any reason or no reason at all; these are called preemptory challenges and are generally limited to a certain number per party. Courts have ruled, however, that parties may not use preemptory challenges to dismiss potential jurors because of their race or sex.
What is the Legislative Branch of the Government?
Legislative - Congress has the power to make the laws. Bills are introduced into either the Senate or the House of Representatives, where they are considered, debated, sometimes amended, and voted upon. Any bill passed by both houses is sent to the President. If the President signs it, the bill becomes law. If the President vetoes it, it may still become law if re-passed by a two-thirds vote of both houses.
What are Local Ordinances?
Local Ordinances Local ordinances are enactments by local legislative bodies such as the city council or the town board. States allow local governments to enact these ordinances since they are the ones most familiar with the local needs. Ordinances deal with such issues as zoning, on-street parking, traffic laws, and building codes. They are designed to promote the general welfare of the community to which they apply.
State Laws that impact Real Estate:
Many state laws impact real estate. As with the federal statutes, these laws range from consumer protection to anti-discrimination laws. In addition, the California Department of Real Estate (DRE) administers and enforces real estate license law in California. Some state laws that apply to real estate include: Business and Professions Code Rumford Act Holden Act Uniform Commercial Code The Bulk Sales Law Statute of Frauds Revenue Acts The Landlord and Tenant Act
The law serves as a guide for what in our society?
Minimally-acceptable behavior
What are Article 3 and 4 of the UCC?
Negotiable Instruments Article 3 and Article 4 of the Uniform Commercial Code govern the issuance and negotiation of negotiable instruments. A negotiable instrument is an unconditional order or promise to pay an amount of money, with or without interest. Negotiable instruments are an alternate form of cash. The money represented by the instrument can be transferred to other persons, so there are laws in place to protect the parties to transactions involving a negotiable instrument. Negotiable instruments include: Drafts Checks Promissory Notes Certificates of Deposit
At the "Trial" step in filing a civil law suit, what is the Opening Statement?
Opening Statement After the jury is chosen, each party has the chance to give an opening statement, which is a preview for the judge and jury of "what the evidence will show." The opening statement is not a time for arguing a case. Opening statements vary in length and style. In some cases, courts and judges require attorneys to stand behind a lectern; but other courts and judges permit the attorneys to walk around the courtroom. When giving opening statements, the plaintiff goes first, then the defendant. Either party may waive an opening statement if it so desires.
What is the Chancellory court system?
Over time, a staggering number of precedents were set. Often, the common law courts actually handed down unfair decisions. To deal with this problem, a second court system, known as the chancellory court system, evolved. These courts became known as courts of equity because they handed down decisions based on what was fair and reasonable rather than solely on whatever precedent had been formed in previous cases.
At the "Trial" step in filing a civil law suit, what is the Plaintiff's Case Presentation?
Plaintiff's Case Presentation After opening statements, the plaintiff begins its case presentation. A plaintiff presents its case to the court by submitting evidence that is relevant to its claims. A plaintiff submits evidence primarily in the form of testimony and documents. The documents admitted into evidence are called exhibits. For each witness that a plaintiff calls to testify, questioning is generally conducted first by direct examination by the plaintiff's lawyer. The opposing lawyer will then conduct a cross-examination. If the cross-examination results in answers that the party calling the witness believes require clarification or further exploration, that party may conduct a re-direct as to those answers, after which the opposing parties may again cross-examine, or re-cross, the witness. After the plaintiff has called all of its witnesses and submitted all of its other evidence, the plaintiff will rest its case. Defendant's Case Presentation This presentation is similar to the plaintiff's, just in reverse. As with the plaintiff, a defendant presents its case to the court by submitting evidence that is relevant to its defenses. The defendant conducts the direct examination of each witness, and the plaintiff will have an opportunity to conduct a cross examination. After the defendant has called all of its witnesses and submitted all of its other evidence, the defendant will rest its case.
What is the "Pleadings" step in filing a civil law suit?
Pleadings Each party in a lawsuit files initial papers, known as "pleadings." The pleadings explain each party's side of the dispute. Litigation actually initiates when the plaintiff files a complaint with the court and formally delivers a copy of the complaint to the defendant. The complaint describes what the defendant did (or did not do) that resulted in damage to the plaintiff and the legal basis for holding the defendant responsible for that damage. The defendant then has a specific amount of time to file an answer to the complaint. The answer offers the defendant's side of the dispute. The defendant may also file counter-claims against the plaintiff, asserting that the plaintiff has harmed the defendant and should be held liable for that harm.
What is a Post Trial Appeal?
Post Trial Appeal Following trial, a party displeased with the result may appeal. During an appeal, a party asks a higher court to review the trial court proceeding. The parties present their arguments in briefs, which are submitted to the appellate court along with the record of evidence from the trial court. The appellate court usually reviews a case for legal error only. Except under rare circumstances, the appellate court will not review factual evidence or override a jury's findings of fact. The appellate court states its decision in a document called an opinion. The appellate court will uphold the verdict if it finds that there was no error in the trial court proceeding. However, if there was an error, the appellate court can reverse the verdict or order the trial court to conduct a new trial. An appeal can extend the litigation proce
Regarding LAW what is the function of Preserving Order?
Preserve Order Maintaining order is an outgrowth of setting standards. Some appearance of order is essential in a civilized society, so the law reflects that need. When laws are enforced, they provide the order that is consistent with society's rules.
What are Rulings of Federal, State and Local Agencies?
Rulings of Federal, State and Local Agencies Existing federal, state and local laws cannot cover every problem that arises in our complex society. Legislatures and courts cannot develop or retain the expertise to handle every specialty. To address this issue, the government delegates some of its authority to administrative agencies through what are known as enabling acts. Before delegating authority to an agency, Congress must determine the basic legislative policy and outline standards for the agency to follow. Some agencies are under the direct supervision of one of the three branches of government. Others are independent, with their hearings and rules generally free from outside control. An administrative agency may have to give interested parties both notice and an opportunity to comment before making a rule or regulation. Some examples of independent federal agencies include the Federal Communications Commission, Federal Reserve Board, Federal Trade Commission, National Labor Relations Board, and the Securities and Exchange Commission.
Regarding LAW what is the function of Liberties and RIghts?
Safeguard Liberties and Rights The United States constitution and statutes and the constitution and statutes of individual states provide for numerous liberties and rights. One purpose of the law is to protect these liberties and rights from violations or unreasonable interferences by individuals, societies, and governments. For example, with certain exceptions, the First Amendment to the Constitution forbids the government from passing a law that prohibits the freedom of speech. Someone who believes that his or her right to free speech has been violated by the government may decide to bring a case in the courts.
Regarding LAW what is the function of Setting Standards?
Set Standards The law serves as a guide for minimally-acceptable behavior in society. Some types of behavior are considered crimes because the public (through a lawmaking process) has decided that it will not allow certain behaviors that injure or harm individuals or their property. For example, in most states, it is a crime to cause physical injury to another person without good reason. This is considered the crime of assault.
Regarding LAW what is the function of Settling Disputes?
Settle Disputes Since society is made up of persons with different needs, wants, values, and views, disputes are bound to happen. The law offers a formal means for settling disputes—the court system. We have a federal court system and each state has its own distinct court system. There are also several less formal means for settling disputes. As a group the less formal approaches are termed alternative dispute resolution (ADR). We learn about these systems later in this chapter.
Why was the Uniform Commercial Code enacted?
Simplify, clarify and modernize the law governing commercial transactions. Permit the continued expansion of commercial practices through custom, usage, and agreement of the parties. Make uniform the law among the various jurisdictions.
State agencies involved in real estate-related issues include:
State Administrative Agencies State administrative agencies are similar to federal administrative agencies in that they are have the power to make rules and regulations that carry out the statutes passed by state legislature. State agencies involved in real estate-related issues include: California Department of Real Estate California Bureau of Real Estate Appraisers California Department of Business Oversight California Department of Insurance California Department of Public Health California Environmental Protection Agency
State Constitutions, Laws, and Statutes
State Constitutions, Laws, and Statutes Each state, including California, has a constitution that establishes the general organization, powers, responsibilities and limits of the state government. The state constitution is usually patterned after the United States Constitution. California State Constitution As with all other states, the California State Constitution is considered the supreme law of the state. However, it is subordinate to the US Constitution and it cannot include any provision that violates a provision of the United States Constitution. You can find the California Constitution at http://www.leginfo.ca.gov/const.html. State Laws and Statutes State governments also have the power to enact laws or statutes. Some of these powers belong exclusively to the states and not to the federal government. For example, divorce law and the common law of torts and contracts remain under the domain of the individual states. State laws include worker's compensation, real property, marital relations, insurance, professional licensing, and agency laws.
What are the steps to filing a civil law suit?
Steps to Filing a Lawsuit The main steps in a civil case in a district court are: Pleadings Discovery Pretrial Trial Post trial Let's discuss each of these steps in more detail.
What is the difference between Substantive and Procedural Law?
Substantive and Procedural A substantive law is a law that establishes and controls the rights and duties of parties. Laws regarding contracts and real property fall into the category of substantive law. A law that prohibits trespassing on someone else's property is an example of a substantive law because it creates and explains trespassing and gives potential trespassers warning about their possible liability or punishment for disobeying the law. A procedural law is a law that sets out the methods for enforcing the rights and duties under substantive law. A specific example of a procedural law is a statute of limitations. A statute of limitations creates a time limit for filing a civil lawsuit or initiating a criminal prosecution. Normally, the time limit is measured from the date the event occurred. This means that in a personal injury case, for example, a lawsuit must be brought within a certain period of time after the injury occurred; otherwise, it cannot be initiated. Even if a case is substantively very strong, a court will discharge the case on procedural grounds.
What is the Supreme Court?
Supreme Court The Supreme Court is the highest court in the nation. It is made up of 9 justices, appointed by the President with Senate approval. The President appoints one of the justices to be the Chief Justice. The Supreme Court does not hear evidence or testimony. It reviews and decides cases that come from the lower courts on appeal - from federal circuit courts, federal district courts, special federal courts, and the highest state courts (which in California is the state Supreme Court).
What is the Spanish Contribution to Law in CA?
The American legal system remains firmly within the common law tradition brought to the North American colonies from England. However, traces of the civil law tradition and its importance here may also be found within state legal traditions across the United States. A well-known example is Louisiana, where state law is based on civil law as a result of Louisiana's history as a French and Spanish territory prior to its purchase from France in 1803. Many of the southwestern states display evidence of civil law influence in their state constitutions and codes from their early legal heritage as territories of colonial Spain and Mexico. California is a state that was originally under Spanish control. As a result, Spain's civil law tradition formed the basis for California's early legal system. In 1848, the Treaty of Guadalupe Hidalgo ended the war between the United States and Mexico, which in turn led to California becoming a part of the United States. Under the treaty, the United States agreed to accept the property rights of Mexican citizens and made California a community-property state. The idea of community property came from Spain. Under community-property law, any property obtained during a marriage is owned equally by a husband and wife. This concept is totally different from the English models of property ownership and inheritance. Most of the community-property states are located in the western United States where Spanish influence was more prevalent. The role Spain played in the eastern US was very limited. The community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Note: Alaska is an opt-in community property state that gives both parties the option to make their property community property.
Which of the Bill of Rights are of particular interest to Real Estate Professionals?
The Bill of Rights and Real Estate Some of the amendments would be of particular interest to real estate professionals because of their impact on property rights. The protections involve: Due process - Amendments 5 and 14 guarantee due process, which requires a fair hearing by an impartial judge. This would be important for an agent accused of misrepresentation or other misconduct. Equal protection - Amendment 14 prohibits governments from adopting laws that discriminate between and among certain groups of people. Just compensation - Amendment 5 prohibits the government from taking private property for public use "without just compensation." Eminent domain allows the government to take private property, but not without paying the fair value of the property it takes. No unreasonable searches or seizures - Amendment 4 requires that a judge issue a warrant for a search. A warrant may be issued only if there is "probable cause" for such a search. Defense against certain government actions - The government may not take an action that interferes with certain rights. For example, Amendment 1 protects freedom of speech, so a local government cannot pass a law that says groups cannot congregate in a public place for a peaceful rally. Note however, that the owner of a shopping center can prohibit that same group from conducting the rally on his parking lot because that is his private property, unless the local government passes a law that requires shopping center owners to allow peaceful rallies on their property.
What is the US Constitution as it applies to LAW?
The U.S. Constitution The United States Constitution is the supreme law of this country. It lays out the organization, powers, responsibilities and limits of the federal government. Both federal and state judges are bound by the U.S. Constitution. Any law that violates it is unenforceable. The Constitution is made up of seven articles followed by 27 amendments. Articles 1 through 3 establish the legislative, executive, and judicial branches of the federal government. Article 4 discusses the relationship between the states and the federal government. It says that states have the power to make and carry out their own laws. Article 5 outlines the process for amending the Constitution. New amendments can be added to the US Constitution with the approval by a two-thirds vote in each house of Congress and three-fourth vote by the states. Article 6 says that the Constitution and federal laws are higher than state and local laws. All laws must agree with the US Constitution. Article 7 discusses the procedures used in ratifying the Constitution. The 27 amendments that follow the articles include the Bill of Rights, which are the first ten amendments.
What is the law of the United States based on?
The basis of law in the United States is common law, which was developed in England. Common law is that body of law that is the result of the resolution of disputes done on a case-by-case basis that bound the arbiter of a dispute to a rule elicited from the determination of an earlier dispute. Common law is then the overall accumulation of judicial decisions, also known as case law.
What is the formal method the law offers for settling disputes?
The court system
What are the two main courts in the United States?
The federal court system and the state court system
What is the difference between Civil and Criminal Law?
There are many differences between civil law and criminal law. Concerns Party filing the case Burdens of proof Goals Let's look at each of these more closely. Concerns As we stated previously, civil law deals with private rights and remedies (non-criminal issues between or among individuals, organizations, or governments), while criminal law deals with public rights and remedies (offenses committed against the public or entire community). Party Filing the Case In a civil case, the person suing is the plaintiff. The plaintiff is a party who says he or she has suffered harm as a result of the wrongdoing on the part of the defendant (the party being sued). The plaintiff can be a person, a business, or a government entity or agency. In a criminal case, the government (local, state, or federal) is the party prosecuting. Burdens of Proof A burden of proof is a party's duty to prove a claim or defense to a certain standard. In a typical civil case, the burden of proof is on the plaintiff. If the plaintiff does not satisfy its burden during trial, the judge or jury will decide the case in favor of the defendant. In a criminal case, the prosecution must prove wrongdoing "beyond a reasonable doubt." The defendant is "innocent until proven guilty" unless the prosecution can prove the defendant's guilt to the reasonable doubt standard. This standard does not require the absence of doubt in the minds of the judge or jury. But the judge or jury should find the defendant guilty only after fair and full consideration of all the evidence presented. Goals In a civil case, the primary goal is to compensate the injured party for the damage done to him or her. This is done by awarding either a legal remedy or equitable remedy. The main legal remedy is compensatory damages, which is money. Most plaintiffs bring civil cases requesting money to compensate them for the injury and damage caused by a defendant. For example, in an ordinary auto accident case, an injured driver with a damaged vehicle will sue the other driver in order to get the money needed to repair or replace the vehicle, pay any medical bills, and receive compensation for lost wages and pain and suffering. On some occasions, the legal remedy of compensatory damages is considered insufficient under the law. In such a case, a plaintiff may get an equitable remedy instead. An equitable remedy is a non-monetary remedy based on the doctrine of equity, which is the principle of creating a fair and just outcome when a legal remedy is unavailable or inadequate. The general rule is that legal remedies are inadequate when a case involves unique or rare personal property or if it involves real property. Two common types are of equitable remedy are injunction and specific performance. An injunction is a court order requiring a party to do, or not to do, an act. For example, after finding a corporation liable for patent infringement, a judge may issue an order enjoining the corporation from further infringing of the patent. Specific performance is a court order requiring a party to perform a contractual duty. For example, a purchaser who paid money for real property may sue the seller seeking the equitable remedy of specific performance if the seller refuses to deliver the deed. The purchaser wants the property and the deed, not a refund of the money paid. The primary goal of criminal law is to punish the wrongdoer who is the defendant in the case. Depending on the crime, punishment may be the death penalty, prison time, probation, or fines. Other goals of criminal law include retribution, deterrence, and rehabilitation, which may also be achieved by the same punishments. A court could also order a convicted defendant to pay restitution or put the defendant under a restraining order. A restraining order is a type of injunction, which prohibits a defendant from coming within a certain distance of or attempting to contact or communicate with the victim.
What is the Common Law conflict resolution process?
This "conflict resolution process" spurred the development of a centralized court system in England shortly after the Norman Conquest in 1066 A.D. The court would try a case and if it had not formerly encountered the problem raised by that case, the court would render a verdict. The judgment would create a standard or precedent. Once it was created, this precedent would be the basis for rendering decisions on subsequent cases that were fundamentally based upon the same set of circumstances. This act of relying on precedents is called stare decisis. It followed that courts trying these cases were identified as common law courts.
How does the law enforce promises?
Through the use of contracts
What power do federal administrative agencies have?
To make rules and regulations that carry out the statutes passed by Congress and to enforce the law, meaning they can mandate compliance with the law, forbid actions, and levy penalties and fines for any violation of the agency's rules, regulations, and their underlying statutes
What are Trial Courts?
Trial Courts Like the federal system, California cases are heard in trial courts first. These are called superior courts. There is at least one superior court in each of California's 58 counties. The number of judges depends on the population of the county. Each Superior Court has two jurisdictional divisions. The Limited Jurisdiction Superior Courts handle civil cases under $25,000 and misdemeanor criminal cases. The General Jurisdiction Superior Courts handle civil cases of more than $25,000, probate, divorces, and felony criminal cases. Real estate-related cases include mortgage foreclosures, quiet title actions, and most real estate disputes. Appellate courts hear and make decisions on the appeals from the decisions of the trial courts. A small claims division, often known as the "People's Court" because it is a user-friendly court where litigants try their cases without an attorney, handles cases involving $5,000 or less. In most cases, only an individual claimant may sue for an amount up to $5,000. In some cases, a partnership can sue in Small Claims Court. Only the defendant can appeal an unfavorable small claims court decision. The Appellate Division of the Superior Court hears appeals from the small claims court.
What are the two types of courts in California?
Trial courts and appellate courts
Two common types are of equitable remedy?
Two common types are of equitable remedy are injunction and specific performance. An injunction is a court order requiring a party to do, or not to do, an act. For example, after finding a corporation liable for patent infringement, a judge may issue an order enjoining the corporation from further infringing of the patent. Specific performance is a court order requiring a party to perform a contractual duty. For example, a purchaser who paid money for real property may sue the seller seeking the equitable remedy of specific performance if the seller refuses to deliver the deed. The purchaser wants the property and the deed, not a refund of the money paid. The primary goal of criminal law is to punish the wrongdoer who is the defendant in the case. Depending on the crime, punishment may be the death penalty, prison time, probation, or fines. Other goals of criminal law include retribution, deterrence, and rehabilitation, which may also be achieved by the same punishments. A court could also order a convicted defendant to pay restitution or put the defendant under a restraining order. A restraining order is a type of injunction, which prohibits a defendant from coming within a certain distance of or attempting to contact or communicate with the victim.
What is the US Court of Appeals?
U.S. Court of Appeals Cases heard here are appeals of district court judgments. Each of these courts - 12 in all - covers the district courts in several states. A 13th court serves the Washington, D.C. area exclusively because of its heavy volume. These courts are also called circuit courts. The judicial circuits refer to the areas served by the courts. These courts review the decisions of the lower courts to see if they should reverse or modify the decision. U.S. Court of Appeals for the Federal Circuit - This court is located in Washington, D.C. The judges sit in panels of three and hear cases on customs, patents and other types of claims. U.S. Court of Appeals for the 12 Circuit Courts - These courts are located in Boston, New York City, Philadelphia, Washington, D.C., Richmond, Atlanta, New Orleans, Cincinnati, Chicago, St. Louis, Denver, and San Francisco. Three-judge panels hear cases from lower district courts, special courts and federal agencies. Under the U.S. Court of Appeals for the Federal Circuit, we have two lower courts: U.S. Court of International Trade - This court hears cases from the International Trade commission dealing with tariffs and international trade. U.S. Claims Court - This court hears cases brought against the United States. Under the U.S. Court of Appeals for the 12 Circuit Courts, we have three lower courts: U.S. Administrative Agencies - These agencies are not technically part of the federal system. However, the appeals from the decisions they make go on to be heard by federal courts. U.S. District Courts - These courts are trial courts. Every state has at least one district court. District courts are also located in Puerto Rico, the Virgin Islands, Northern Mariana Islands and Guam. Most federal cases have their origins in district courts. Under the U.S. District Courts are the bankruptcy courts and the magistrates. U.S. Tax Court - These courts are located throughout the U. S. to hear cases regarding tax issues. These courts review IRS decisions. Specialized Courts Of the courts previously mentioned, some have limited jurisdiction, meaning they can only hear certain types of lawsuits. These include: U.S. Tax Court U.S. Claims Court U.S. Court of International Trade U.S. Bankruptcy Court Note: The flowchart shows the court system from top down. However, keep in mind that most cases start out in the district courts, which are trial courts. Decisions at the district court level that are appealed go up the ladder to the circuit courts. Appeals from those circuit court decisions may be heard by the Supreme Court. It is up to the discretion of the Supreme Court whether or not to hear a case. Although the Supreme Court may hear and issue opinions in about 100 cases each year, it refuses to hear appeals thousands of times each year.
Name three important sources of United State law.
US Constitution State constitutions Court decisions
What is the Uniform Commercial Code (UCC)?
Uniform Commercial Code The Uniform Commercial Code (UCC) is a statute that was enacted by California, as well as most other states, to Simplify, clarify and modernize the law governing commercial transactions. Permit the continued expansion of commercial practices through custom, usage, and agreement of the parties. Make uniform the law among the various jurisdictions. Several areas of the UCC are of particular interest to licensees: Definition of personal property Security interests in personal property Bulk Sales Act Statute of Frauds for personal property What constitutes a fixture Laws governing commercial property Definition of negotiable instruments
At the "Trial" step in filing a civil law suit, what is the Verdict/Judgement?
Verdict/Judgment The jury's decision is known as the verdict. Some states and courts require unanimous verdicts; others require only majority verdicts. If the jury is unable to reach a verdict after a period of time, the judge may reluctantly declare a hung jury. If this happens, the parties will need to retry the case at a later date. Following a verdict, the judge will hear any motions challenging the verdict—such as a motion for a new trial or a motion for judgment notwithstanding the verdict. Judges seldom grant these motions because doing so results in the overturn of jury verdicts. Following the denial of any post-trial motions, the judge will enter the court's judgment on the verdict and the trial is over.
The law protects our numerous liberties and rights from what?
Violations or unreasonable interferences by individuals, societies, and governments
What are the 2 categories of LAW?
We can classify law into distinct categories. The categories of law that we will discuss include: Substantive law and procedural law Civil law and criminal law
