General Law Flashcards
(62 cards)
What are the English Covenants of Title?
The language “English covenants of title” simply mean that the deed is conveyed in fee simple, without any encumbrances of tenancies, or liens on the property. Includes:
- Seisin – covenant that the grantor has the interest that he purported to convey
- The Right to Convey – grantor has the right, power and authority to convey the property.
- Quiet Possession – promise that a grantee will hold and enjoy the land free from any interruption, claim or demand by anybody, and that grantor would indemnify and save grantees harmless against any and every charge or encumbrance.
- Further Assurances – covenant to execute deeds or otherwise take action to perfect title if necessary.
- No Encumbrances – defined as including the existence of physical intrusions or encroachments or superior title or interest in the land held by another party.
What do minority shareholders need to prove to obtain judicial dissolution of a corporation?
(1) deadlock in the management of the corporation,
(2) oppressive or illegal conduct by the majority
(This is a factual analysis — but removing directors, firing employees, and suspending all payments of dividends without cause may qualify); OR
(3) waste of corporate assets.
When may a juror be stricken for cause?
MEMORIZE THIS: When a potential juror is related to a party, has any interest in the case being tried, or has expressed an opinion or bias in the matter, he can be stricken from the panel for cause.
It would be reversible error for a court to force a party to use one of their peremptory strikes when the juror should be stricken for cause.
When may an appellate court consider an issue raised on appeal?
Issues (“assignments of error”) raised on appeal for the first time WILL NOT be considered by the appellate court UNLESS the “ends of justice” exception applies.
In general, trial counsel must have objected to the issue, and given the trial judge a chance to rule on it, in order for that issue to be considered on appeal.
The “ends of justice” exception is applied in extreme cases where the court must correct a grave injustice.
When should a case be dismissed for improper venue in Virginia?
Trick question: Venue is not jurisdictional in Virginia and no case shall be dismissed on that basis.
However, a party may object to venue as being improper venue.
A defendant must file an objection to venue (NOT a motion to dismiss) within 21 days of service of process upon the defendant.
Who can serve process?
Any DISINTERESTED civilian who is 18+ years old and not a party to the suit
Sheriff (or deputy sheriff) has authority to serve court process within his jurisdiction or any contiguous jurisdiction.
Who may be served with process?
If defendant is a human, then defendant at her usual place of abode
If unsuccessful because she was not there; then, at defendant’s usual place of abode, serve the papers on a member of defendant’s family, who is not a temporary sojourner.
Server must explain what the papers are about and instruct the family member to give the papers to the defendant.
If defendant is a corporation, then an officer, director or registered agent of the corporation
Virginia’s curative statute allows that if ANY of the proper parties receive process in time, it is OK.
What do you need to show in an action for detinue?
- P has a property right in the thing sought.
- P has a right to immediate possession.
- Property is capable of identification
- Property has some value.
- D has had possession sometime prior to institution of suit.
Purchasing the property in good faith is not a good defense where the property is stolen property
Detinue can be filed in the normal manner where the court will first hold a trial on the merits, or under certain circumstances, can be brought seeking pre-trial seizure.
If pre-trial seizure is sought, plaintiff will need to allege facts showing that one of the grounds for attachment is present.
When may a plaintiff exercise a nonsuit?
- before a motion to strike the evidence has been sustained; or
- before the case has been submitted to the jury; or
- before the action has been submitted to the court for decision
A plaintiff’s first nonsuit is by right
If a plaintiff wants to take a second nonsuit, she can only do so at the discretion of the court after reasonable notice is given to all parties.
If the party taking the nonsuit does so within seven days of trial, the Court has the discretion to order the nonsuiting party to pay witness fees and travels costs (NOT defendant’s attorneys’ fees) incurred in anticipation of the pending trial.
What are the requirements for a demurrer?
Must be filed:
- In writing,
- within 21 days of service of process (unless the trial judge grants leave for additional time within which to file it).
- must state the SPECIFIC grounds for demurrer (not merely failure to plead a cause of action)
In consideration of the demurrer, the factual allegations in the complaint are assumed to be true.
When ruling on a demurrer, the trial judge is limited to reviewing the contents of the face of the pleading that the demurrer is filed against.
The court cannot hear evidence in ruling on a demurrer.
When may a trial court grant a motion to file late pleadings?
The decision whether to grant leave to file late pleadings is a discretionary call by the trial court and the trial court’s ruling will not be disturbed unless the SCV finds the trial court abused its discretion.
Applicant should discuss whether there was good cause shown to support the motion for leave to file late pleadings:
[1] why was the defendant late in appearing;
[2] any prejudice to the opposing side in permitting late filing;
[3] good faith of the moving party;
[4] the existence of a substantial defense [ie contributory negligence];
[5] promptness of the moving party.
Good cause standard under this Rule is a liberal standard and that the policy of the Rule favors allowing leave.
Court may order payment of any extra costs and fees incurred by opposing party as a result of the delay.
When may a party add new defendants to a case?
Under the Virginia Code, new parties may be added to a case by order of the court at any time as the ends of justice may require
Plaintiff must seek leave of court to file an amended complaint adding the new defendants.
If the plaintiff wants to change defendants, when will doing so toll the SOL?
- Nexus: The cause of action asserted in the amended complaint arose out of the conduct, transaction, or occurrence set forth in the initial pleading.
- Awareness: The facts reveal that before the period ran, the nonmoving party was aware of the pendency of the action;
- Fairness: The nonmoving party will not be prejudiced in maintaining a defense;
What do you need to prove to get a new trial on the grounds of after-discovered evidence?
[a] the evidence was discovered after trial; and
[b] the evidence is material and on another trial should produce opposite results on the merits; and
[c] the evidence is not cumulative, corroborative or collateral; and
[d] the evidence could not have been discovered with reasonable diligence before trial; and
[e] the evidence can be produced at a new trial.
What should the court consider when deciding on a temporary injunction?
(a) Is there an adequate remedy at law?;
(b) does the plaintiff have a likelihood of success at trial?;
(c) is the harm to the plaintiff if the injunction is not granted greater than the harm to the defendant if the injunction is granted?
(d) does the public interest weigh in favor or against an injunction?
Bonus: Is the plaintiff prepared to post the injunction bond, protecting the defendant from damages suffered, if after hearing the evidence from all sides, the judge decides the injunction should not have been granted?
What are the requirements for a valid will?
- Testator at least 18 years old
- In writing
- Signed by testator
- Testator must be competent
- Voluntariness/no evidence of coercion
- Minimum of two witnesses
Bonus: Self-proving affidavit recommended
Bonus 2: Holographic wills are an exception
What are the requirements for a valid holographic will?
- Entirely in testator’s handwriting
- Signed by testator
- Testamentary intent
Testamentary intent must be found on the face of the will, not from extrinsic evidence.
Formal language, e.g. “my last will and testament,” is helpful but not required
What is a transfer on death deed?
Allows a real property owner to designate a beneficiary to receive title to certain residential real property on the owner’s death without a probate proceeding or trust administration.
Requirements:
1. Must state that transfer to the designated beneficiary is to occur at the transferor’s death;
- Must be recorded before the transferor’s death in the circuit court where the property is located; and
- Must not have ever been revoked.
TODD will supersede the provision of a will related to the specific real property.
If, after making a TODD, the transferor is divorced, the divorce revokes any transfer to a former spouse as designated beneficiary unless the transfer on death deed expressly provides otherwise.
If a claim for an elective share is made, the surviving spouse is entitled to:
(i)one-third of the decedent’s augmented estate if the decedent left surviving children or their descendants;or
(ii) one-half of the decedent’s augmented estate if the decedent left no surviving children or their descendants.
The augmented estate isthe value of a decedent’s estate used when the surviving spouse chooses to take anelective share, rather than what was left by will.
What entitlements take priority over all other claims (except the cost of administration)?
- Family Allowance – Surviving spouse and minor children whom the decedent was obligated to support are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration
The family allowance may be paid as a lump sum not to exceed $24,000, or in periodic installments not to exceed $2,000 per month for one year.
- Exempt Personal Property – The surviving spouse of a decedent who was domiciled in the Commonwealth is entitled from the estate to value not exceeding $20,000 in excess of any security interests therein in household furniture, automobiles, furnishings, appliances, and personal effects.
If there is no surviving spouse, the minor children of the decedent are entitled in equal shares to such property of the same value.
- Homestead Allowance – A surviving spouse of a decedent who was domiciled in the Commonwealth is entitled to a homestead allowance of $20,000.
If there is no surviving spouse, each minor child of the decedent is entitled to a homestead allowance amounting to $20,000, divided by the number of minor children.
- Non-Probate Assets – Pass to the contractual beneficiary (E.g. life insurance policies).
What does the Virginia Anti-Lapse statute do?
The Virginia Anti-Lapse statute will save a gift to a beneficiary who predeceases the testator ONLY IF the beneficiary was a grandparent or the descent of a grandparent of the beneficiary
What does the Simultaneous Death Act do?
If two or more people die within 120 hours of one another, and nowillor other document provides for this situation explicitly, each is considered to have predeceased the others. That means if spouses die within 120 hours, their property does not pass from one spouse to the other; it goes to the next beneficiaries in line, or by intestate succession
What is a “good” under UCC article 2?
The definition of goods in the UCC establishes the key criterion as mobility at the time of identification to the contract for sale.
What are the two major exceptions to the statute of frauds re: the sale of goods?
An oral contract for the sale of goods is enforceable to the extent that the goods have been received and accepted.
An oral contract for the sale of goods is enforceable if the goods are specially ordered by the buyer, cannot be resold by the seller in the ordinary course of its business, and the seller has made a substantial beginning of performance
