Saturday, October 22, 2016

The Top Five: Eminent Domain and Leasehold Estates

Eminent domain questions come up with some regularity, especially so because this topic can be tested both in Property and in Constitutional Law.  A subtopic that comes up requires an understanding as to what happens to a leasehold if leased realty is taken by eminent domain.  The following are some points to remember:

(1):  If leased property is taken by eminent domain, the leasehold and the reversion merge in the taker  (often the state) and so the leasehold is terminated.

(2):  Once the leased property is taken by eminent domain there is no longer an obligation for the lessee to pay rent.

(3):  Both the lessor and lessee will be entitled to "just compensation" once the property has been taken by eminent domain.

(4):  The measure of "just compensation" provided is as follows:  The lessor is entitled to receive the value of the leased property (including the value of rent to be received) minus the value of the leasehold interest that has already been conveyed to the lessee.  The lessee is entitled to receive the value of the leasehold.

(5):  In a sense, the lessee benefits from the eminent domain as the obligation to pay rent ceases. As such, the rent that the lessee otherwise would have been required to pay is generally deducted from the value of the leasehold when determining the amount at which to compensate the lessee.

Saturday, October 15, 2016

Property Owners’ Associations and Common Interest Ownership Communities

Changes are coming to the MBE in February 2017 in the subject of Real Property.  The only guidance we have is the update provided by the NCBE, though unfortunately it's quite vague.  From now till February, though, I intend to post information and links that might clarify the areas mentioned as updated Real Property content, though necessarily there is a bit of guesswork that goes into trying to determine what exactly might be tested.

One such update states that the test will now include questions on property owners associations and common interest ownership communities.  Questions on the topic of common interest ownership communities may likely test the differences between condominiums and cooperatives, and some helpful information regarding this distinction can be found @

Regarding property owners' associations, an excellent link explaining the basics of homeowners' associations can be found @

Thursday, October 13, 2016

Preparing for the Florida Bar Exam

It's about that time to start preparing for the February bar exam.  My tips for getting started are published @

Sunday, October 2, 2016

MBE Percentiles (July 2016)

The MBE percentile chart has been released from the July 2016 exam.  The numbers are as we are used to seeing though I think it worth noting the jump in percentile from a 145 scaled score to a 150 scaled score.  An increase of 5 scaled points in this range results in a jump from the 57th percentile to the 70th percentile.   Similarly, 5 scaled points from a 140-145 results in an 11 point percentile jump from the 46th percentile to the 57th percentile.  The complete chart is below.

Tuesday, September 27, 2016

MEE Essentials Volume 2

MEE Essentials Volume 2 is now available at Amazon.  Between volumes 1 & 2 all subjects tested on the Multistate Essay Exam are covered.  I hope you find it a helpful supplement as you begin to prepare for the exam!

Tuesday, September 6, 2016

UCC Acceptance and Accommodation

A common question that tends to trip up students when we're working together on practice questions deals with the concept of accommodation under the UCC.  To understand these rules it's important to first understand that there are multiple methods of accepting an offer when the contract is for the sale of goods under the UCC.   If the seller chooses to accept in a method other than by shipment of the goods (for example, by directly notifying the buyer that the seller accepts) then the rules regarding accommodation do not apply. And if the goods are later sent and do not conform to the contract then that is a breach of contract and the buyer will have a variety of options, one of which is to sue for breach.

If the seller chooses to ship the goods without first notifying the buyer that the seller has accepted prior to shipment then that, too, might constitute an acceptance of the offer.  But if the seller seasonably notifies the buyer that the shipment is offered only as an accommodation to the buyer, such a shipment will not be treated as an acceptance.  Rather, the shipment will be treated as a counter-offer.

The buyer will then have a few options if the seller has shipped nonconforming goods.  The buyer can keep the non-conforming goods in which case there is a contract for the goods as they are at the price the seller has indicated.  The buyer can also reject the shipment thereby preventing a contract from forming.  Importantly, however, the option is not available here for the buyer to hold the seller in breach because without an acceptance of an offer by the seller there can be no breach of contract.

Thursday, September 1, 2016

Another Change to the MBE

Nothing of great significance here, but the NCBE has quietly announced on its page that beginning in February 2017, the MBE will be scored out of a total 175 points as opposed to 190 points.  The test will still consist of 200 questions but with this change 25 of the questions as opposed to 10 of the question will remain unscored, used only as potential questions for future exams.

This news won't affect anything in regards to studying for the exam, but I thought it an interesting change worth mentioning.

Sunday, August 28, 2016

Conflicts of Law: Real Property

Changes are coming to the MBE in February of 2017.  One such change is stated by the NCBE in its MBE subject-matter outline as "conflicts of law related to disputes involving real property."  This is rather vague and perhaps as we get closer to the exam we'll know more about the specifics that need to be known for these questions but there are a few points that I'd think should be known even as we wait to learn more.

The general rule governing conflicts of law in the subject of real property is that such property is subject to the laws of the place where the property is situated (sometimes called the "law of the situs").  The law of the place where the property is situated governs the disposition of real property and this will be true whether the disposition is by descent, deed, or any other method.

In addition, contracts related to real property are often governed by the law of the place where the property is situated. It's important to note, though, that if the real property is merely incidental to the contract and if the contract is of a personal nature, then the traditional conflicts of law rules regarding contracts will apply rather than the specific rules regarding real property.

More or on this change as well as the other changes to the content of the test in the months to come......

Wednesday, August 17, 2016

Standards of Review

Though the NCBE has not yet released any official Civil Procedure questions (that have actually shown up on previous exams) there are enough practice questions now floating around so that we can have a pretty good idea of the topics that are of special importance.   One topic that is showing up often requires an ability to specify what standard of review an appellate court should employ. In general, sometimes the appellate court gives great deference to the trial judge's ruling while in other circumstances far less is given.   Specifically, the following standards should be understood well for federal civil procedure questions:

De Novo:  This standard applies for questions of pure law.  If the issue reviewed by the appellate court is an issue of law, the appellate court will conduct a "de novo review."  Essentially, this means that the court will analyze the issue from scratch without giving any deference to the trial court's analysis.

Clearly Erroneous:  This standard applies for questions of fact.  Questions of fact decided by the trial court must not be set aside unless clearly erroneous.  Here, more deference is given to the trial court; the appellate court must give due regard to the trial court's decision regarding questions of fact.

Abuse of discretion:   When decisions are committed to the trial court' discretion, the appellate court will not reverse such discretionary decisions unless the appellate court believes that the trial court has abused its discretion.  This standard gives the greatest deference to the trial court.

Harmless Error Doctrine:  Though this isn't a standard of review in the same sense as the above three, it's worth noting as it is a means of assessing the seriousness of any errors that may be found by an appellate court.  Under this doctrine, even if the appellate court decides that a particular trial court's ruling was incorrect, the appellate court will not reverse the trial court's decision if the appellate court believes that the error was unlikely to have changed the outcome of the trial.

Friday, August 12, 2016

Revisions in Real Property for February 2017

It's still quite early to be gearing up for the February 2017 exam.  But there are some changes to keep in mind for those who intend on beginning their preparation soon. The changes that will take place for the first time in February are in the subject of Real Property and the NCBE has provided some guidance on its website:

Effective with the February 2017 administration, there will be changes to the Real Property scope of coverage for the MBE and the MEE. The Real Property topics will be slightly reordered and revised.
New topics will include conflicts of law ; property owners’ associations and common interest ownership communities ; drafting, review, and negotiation of closing documents ; and persons authorized to execute real estate documents.
Minor modifications will include providing specific examples of rules affecting future interests; including security deposits in termination of tenancies; providing more detailed zoning topics; and including as separate topics transfers of restrictive covenants, transfers of easements, profits, and licenses, and acceleration of loans before foreclosure.
Note that the following Real Property topics will no longer include (1) application of Article 9 of the Uniform Commercial Code to fixtures or (2) abatement of devises.
For the revised scope in this subject, see the most recent subject-matter outline @

Sunday, July 24, 2016

Good Luck!

Best of luck to all those who will be taking the exam this week!!

Posting to resume shortly to assist those who are preparing for the February 2017 exam.  And for information about tutoring, e-mail me at

Sunday, July 10, 2016

Collateral Estoppel

Collateral estoppel applies to prevent a person in a civil case from re-litigating an issue.  Once a court has decided an issue of fact or law necessary to its judgment, that decision will preclude re-litagation of that issue in a suit on a different cause of action involving a party to the first case.  A topic within this area that has been showing up in practice questions is that of mutuality.

Traditionally, collateral estoppel only applied where the party seeking to employ collateral estoppel and the party against whom collateral estoppel was being employed were both parties to the previous lawsuit.  If this were true it was said that there was mutuality among the parties.  This requirement has been abandoned by most courts in most circumstances.  For purposes of the MBE, you should understand 4 ways in which collateral estoppel may be used:

Defensive mutual collateral estoppel:  This is when collateral estoppel is used by the defendant from the first suit against the plaintiff from the first suit regarding issues that were previously litigated against the defendant in the first suit.

Defensive non-mutual collateral estoppel:  This is when collateral estoppel is used by a new defendant in a later suit regarding issues that were previously litigated against the plaintiff by a former defendant in a previous suit.

Offensive mutual collateral estoppel:  This is when collateral estoppel is used in a later suit by the plaintiff from the first suit against the defendant from the first suit regarding issues that had already been litigated in that first suit.

Offensive non-mutual collateral estoppel:  This is when collateral estoppel is used by a new plaintiff in a later suit against the defendant from a previous suit regarding issues that were previously litigated against that defendant in the previous suit.

Sunday, July 3, 2016

MBE Fast Fact: Trespass to Chattel

Intentional torts tend to be relatively straight-forward but there is one aspect of trespass that can be counter-intuitive and so I thought it worth mentioning. Trespass to chattel is the intentional interference with the plaintiff's chattel resulting in damages. The intent requirement can cause some problems here. For this purpose, intent consists of a desire or knowledge that the chattel will be involved without regard to whether the defendant actually knows that the chattel belongs to the plaintiff, or that the plaintiff's rights are being violated.

In other words, if defendant takes a coat thinking that it belongs to the defendant but in fact belongs to plaintiff, that mistake alone is not enough for the defendant to claim that the defendant did not have the requisite intent to commit this tort. Defendant intended to take the coat, and the intent to take the coat is enough. It's worth noting that these same types of questions can come up in questions testing trespass to land. If someone walks onto the property of another thinking that the land is his own, the requisite intent for trespass to land is still satisfied if there was an intent to enter the land.

Sunday, June 26, 2016

Past Recollection Recorded

One of the *many* hearsay exceptions that must be remembered is the one involving past recollection recorded. But before understanding the particulars you'll need to be able to read the fact pattern and understand from reading the facts that this exception is implicated. Look for a situation where a witness states that there is insufficient recollection of an event to enable testifying to the event fully and accurately.

And this is true even after the witness on the stand has had an opportunity to consult a writing that might aid in remembering the event. The writing may then be read into evidence but because it is an out of court statement offered for the truth of the matter asserted there is a hearsay problem. And the way to get around this hearsay problem is to satisfy the elements of the exception for this particular hearsay problem. The elements here amount to the foundation that must be laid to offer this kind of statement into evidence, and the foundation is as follows:

(1): The witness at one time had personal knowledge of the facts in the writing.

(2): The writing was made by the witness or under his/her direction, or it was adopted by the witness.

(3): The writing was timely made when the matter was fresh in the witness's mind.

(4): The writing is accurate.

(5): The witness now has insufficient recollection to testify fully and accurately.

Note that whenever a witness has used a writing to refresh his/her memory as stated above, an adverse party is entitled to have the writing produced at trial. An adverse party is also entitled to cross-exaimine the witness regarding the writing and to introduce portions relating to the witness's testimony into evidence.

Thursday, June 9, 2016

The Top Five: Diversity Jurisdiction

There is so much material to cover regarding jurisdiction in Civil Procedure that it's easy to overlook some of the finer points. Here are 5 potentially testable aspects of jurisdiction that may not stand out when reading the outlines:

(1): Just as citizens of different states will satisfy the diversity requirement for diversity jurisdiction so too will a citizen of the United States and an alien. Jurisdiction is denied, however, if the alien has been admitted to the United States for permanent residence and is domiciled in the same state as the US citizen.

(2): Diversity of citizenship must exist as of the time that the suit is instituted. In other words, diversity need not exist at the time that the cause of action arose, and diversity is not defeated if after commencement of the action a party later becomes a citizen of the same state as his/her opponent.

(3): When determining the citizenship (for purposes of diversity) of a corporation, you must consider both the states in which the corporation is domiciled (can be more than 1), and the state in which the corporation has its principal place of business (can be only 1). A factor to strongly consider when determining where the corporation has its principal place of business is to look to where it has its headquarters. In contrast, for unincorporated associations (such as partnerships), the association is considered for purposes of diversity jurisdiction to be a citizen of each state of which any member is a citizen.

(4): For class action lawsuits, diversity is determined on the basis of the citizenship of the named members of the class only.

(5): The legal representative of the estate of a decedent, an infant, or an incompetent is deemed to have the same citizenship as the decedent, infant, or incompetent for purposes of determining if diversity exists.