BLAW Week 8
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This 9 page Class Notes was uploaded by Winston on Tuesday October 11, 2016. The Class Notes belongs to BLAW 2013 at University of Arkansas taught by Norwood in Fall 2016. Since its upload, it has received 4 views.
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Date Created: 10/11/16
1. Homestead exemption a. Took a long time to get passed i. A lot of political turmoil 1. “The homestead cap is a violation of state’s rights” - George W. Bush 2. Priorities a. “All creditors are equal, but some are more equal than others….” i. Priority creditors (in order) 1. Secured creditors 2. Child and spousal support obligations 3. Administrative expenses 4. Wages and salaries (when the debtor has employees) up to a dollar maximum 5. Taxes (3 years) 3. Non-dischargeable debts a. Taxes within 3 years b. Any debt resulting from fraud c. Liability for willful torts i. Accidental torts are dischargeable though d. Alimony and child support e. Any debt not listed i. If you forget to list it, it won’t/can’t be discredited f. Government guaranteed student loans i. Unless undue hardship (not important for test) g. Debts resulting from DWI 4. Denial of a discharge (aka: the death penalty) a. destroying/falsifying records b. Making a false statement under oath c. Secretly transferring or concealing property d. Having received a discharge in the previous 8 years 5. A few final things “just chill, ignore these” a. You can reaffirm a debt with court permission b. Bankruptcy will stay on your credit report for ten years c. Some employers review your credit record (and Facebook!) before deciding whether to offer a job d. Some creditors will abuse the 8 years 6. Chapter 12: Real Property a. Real property i. Land, buildings, plants, mineral rights, ari rights ii. Fixtures 1. Something that was originally personally property a. But i. Has been affixed to your real property 1. Ceiling fans 2. Chandeliers a. NOT i. Above ground pool ii. Curtains iii. Above ground hot tub 7. Forms of ownership a. Fee simple absolute i. Highest form of ownership under common law 1. Owner has ownership in his/her life and can decide who gets it when they die b. Life estate i. Lesser than fee simple absolute 1. Owner has property fee simple absolute a. He transfers his property to two people under two forms i. Life tenant 1. Present interest a. Has that property until they die i. This person can sell the estate ii. The buyer will own it until the life tenant dies ii. Remainderman 1. Future interest a. Gets the property when the life tenant dies 8. They will own it in fee simple absolute 9. The remainderman can sell their future ownership 10. Forms of multiple ownership a. Ownership in common i. A - B - C 1. They can own in ANY proportion 2. Any one of them can sell their interest to another party without permission from the other owners a. If one dies, their heirs inherit the property (or whoever he willed it to) b. Joint ownership (joint tenancy) - defeats the rights of heirs i. A - B - C 1. The proportions have to be equal a. 33.33333333% each 2. One can sell their ownership a. If A sold to X i. X owns in “ownership in common” 1. X is not a joint owner a. He could split that up 3. If one dies, their share goes to the other owners a. If X, B and C are now owners and B dies, C receives all of B’s share c. Tenancy by the entirety i. The owners are married 1. The survivor takes the share of the other a. Neither spouse can independently sell their share i. If sold, must be sole in entirety Monday 10/10/16 11. Leasehold estate a. Combination of real property law and contract law i. Fixed term tenancy 1. If you have a year contract, you have to stay for a year a. If you want out, you must pay damages ii. Periodic tenancy 1. Usually month to month 2. One month’s notice is required to terminate 12. Easement a. The right to make limited use of property i. Less than actual ownership 1. Dominant estate gets to use the property 2. Servient estate lets the property be used a. Ways they are created i. Express 1. In the deed ii. Eminent domain 1. Forced taking 13. Transfer of ownership a. The listing agreement i. Obligation to sell ii. Listing agent’s fee iii. Earnest money 1. If the real estate comes up with a full price offer a. The seller doesn’t have to sell, but they have to pay 2. If the owner, during the listing period, sells the property, they still owe commission 3. If a lesser price is offered, and accepted, the commission is earned b. The general warranty deed i. Guaranteeing good title c. The offer and acceptance 14. Filing of the conveyance (or mortgage) a. The “race/notice” system i. A sells to B 1. B doesn’t file at the courthouse ii. A sells to C 1. C files at the courthouse a. B can get his money back from A, if he can find him, but he doesn’t own the property 15. Adverse possession a. The requirements i. Open possession ii. Under claim of ownership iii. Continuous iv. For the statutory period 16. Eminent domain a. The taking of private property for public use i. Has to be 1. For public use 2. For just compensation 17. The restrictive (neighborhood) covenant a. Enforceable and restrict what can be done to property 18. Zoning - must be followed a. Residential b. Commercial c. Industrial i. 3 or more unrelated people cannot live in a Fayetteville home REVIEW 1. Contracts a. Writing is not required i. An agreement with consideration 2. Sources of contract law a. Case law i. Statutory precedent b. Restatement of contracts c. Sales contracts fall under article 2 i. You go to a store and buy something 3. Bilateral a. Two sided i. Promise for promise 4. Unilateral a. One side i. One promise if the other does something 5. The offer a. Three requirements i. Willingness to enter into a legally binding agreement 1. Must have intent a. Can’t be a joke b. Can’t be an add ii. Has to be communicated deliberately by the offeror iii. Has to be reasonable definite 1. Limit of time a. No legal obligation to hold offer open for said amount of time i. Unless 1. The offeree has paid to have that window 2. The mailbox rule a. Offer sent in mail b. Offer accepted in male i. Offer is done ii. Cannot change the offer and accept it at same time 6. Consideration a. Doesn’t have to be fair i. It is not consideration if you already have to do it or if you have already done it 7. Capacity a. Minors i. Minors can void the contract b. Intoxication is not a good defense 8. Legality a. Gambling i. Not legally enforceable 1. Businesses cannot force one to put up something of value to win something ii. Failure to obtain a license 1. Only if regulatory a. Medicine, law, real estate b. Exculpatory i. No lifeguard on duty 9. Covenant not compete a. Reasonable business purpose b. Reasonable amount of time c. Reasonable area 10. Can a judge refuse to enforce ta contract because he feels it is grossly unfair? a. Yes 11. Statute of frauds 12. Can’t go against writing contract with verbal contract Chapter 8 13. Voluntary consent a. Adhesion contracts i. Take it or leave it, no bargaining 14. Conditions a. Must be satisfied i. Borrowing money before buying house 15. Satisfaction doctrine a. Matter of personal taste or choice i. Individual is not satisfied 16. Discharge by operation of law 17. Remedies a. Compensatory damages b. Smith v. Russ i. Consequential damages c. Punitive damages are not allowed in a contract case, but are allowed in tort cases d. Liquidated damages 18. Equitable remedies a. Not for money 19. Attorney’s fees a. Not in contract law i. Some states (such as Arkansas) do allow them Chapter 9, 10 torts 20. Breach of duty 21. Common law of torts is cased based, just like contract law 22. Compensatory damages normally punitive damages sometimes 23. Tort reform a. Noneconomic damages are limited in many states b. Product liability lawsuits are now federal c. Some states outlawed punitive damages d. Supreme court allows punitive damages (1:9) 24. False imprisonment a. Merchant may detain a customer for no more than a reasonable time, merchant has suspicion of shoplifting 25. Intentional infliction of emotional distress a. Must either result in physical injury or the action must be completely intolerable on society 26. Defamation a. Communication b. False c. Damages i. If public figure 1. Must be malice 27. Recording conversations a. One party vs two party states i. Arkansas is a one party state 28. Business tory a. Interference with a contract i. Competitor steals an employee who still has 2 years left in their contract 29. Unintentional torts a. Duty i. Shannon v. Wilson blackboard ii. Duty of landowners 1. Not strictly liable 2. Reasonable care a. Warn invitee of risk b. Attempt to discover b. Breach of duty i. Reasonable man test 1. Reasonable man would have not done this ii. Proving breach of duty 1. Preponderance of evidence 2. Affirmative defense a. Golf balls in golf tournament c. Causation 30. Damages Chapter 10 strict liability 31. Product liability a. Person who sells the products is a professional b. Shift risk from victim to seller i. Professional seller ii. Defect iii. Unreasonable dangerous iv. Not liable if product changes v. Liability cannot be waived Chapter 11 32. Statutory lien a. Repossessing a house 33. Garnishment of wages a. Up to 70% 34. Real property a. Foreclosure procedures i. Acceleration clause ii. Notice of default iii. Public auction iv. Right of redemption v. Judgement (except in a few states) 35. Personal property a. Creditor can go get the stuff 36. Know the usury laws of Arkansas a. 17% 37. Payday loan a. Short time i. 2 weeks, 3 weeks, 4 weeks 1. Interest rate looks low, until multiplied over long time 38. Bankruptcy reform act of 2005 was enacted in 2005 39. Bankruptcy types a. Chapter 7 b. Chapter 11 c. Chapter 13 i. Maybe chapter 9 40. Bankruptcy reform act of 2005 a. Chapter 7 can be switched to chapter 13 by trial judge i. Above average income 41. Procedures a. File in federal court “date of bankruptcy” i. Automatic stay ii. Forms signed under oath 42. Straight liquidation procedures a. If you earned it by the sweat of your brow after DOB then it’s yours b. If you inherit it within 6 months of DOB then it is part of estate 43. Fraudulent transfers a. If you give away or sell at low price your property, then it is probable fraudulent 44. Preference a. 90day rule 45. Arkansas Homestead Exemption a. Must be married b. Unlimited value 46. To claim state exemptions a. Must life there for at least 2 years 47. Priorities a. Child and spousal b. Administrative expenses c. Wages d. Taxes over previous 3 years 48. Nondischargeable debts a. Taxes b. Debts resulting from fraud c. Willful torts d. Alimony and child support e. Student loans f. DWI issues g. Loans not stated 49. Fraud a. Destroying or falsifying records b. Making a false statement under oath
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