REL 4413 1st Edition Exam 1 Study Guide Legal Aspects of Real Estate Study Guide Chapters One Four Chapter One Introduction to the Legal System Sources of Law 1 Law a A body of rules of action or conduct prescribed by controlling authority and having binding legal force Page 4 2 Public Law a The law that concerns the government or its relations with individuals Example real estate licenses for realtors and brokers b Purpose defines regulates and enforces rights in which the government agency is a party to the subject matter Page 4 5 3 Private Law a Deals with relationships between individuals such as contracts property and torts b Law of property regulates the ownership employment and disposition of property including real property tangible and intangible property Page 4 5 4 Sources of Law Constitutions a The U S has fifty one constitutions 50 state constitutions one U S constitution b U S Constitution is the supreme law of the land i 14th amendment guarantees due process before taking away life liberty or property State constitutions cannot impair rights granted under the 14 th amendment Page 5 7 5 Statutory Law a Laws enacted by legislative bodies federal state or local b Courts interpret statutes but statutes prevail over conflicting judicial decisions Page 7 6 Administrative a Administrative agencies are created at federal state and local levels and deal directly with citizens b They provide assistance and expertise in often highly technical areas c Agencies create laws by rule making in the Federal Register Page 8 9 7 Judicial Decisions Major Source of Law a A primary source for determining how the Constitution is interpreted and applied i Courts also interpret statutes and decide cases and controversies b c d e f g h ii Decisions can become significant and guidance for other courts Citations information listing the volume and page where a decision may be found Page 9 Common Law From England the principle of stare decisis of abiding by previously decided cases provides stability predictability but also flexibility i Distinguished from Civil Roman Law which decides cases based on a legal code Page 10 11 Jurisdiction i The authority of a court to hear a case decide facts apply the law and enter judgment Page 11 Res judicata i once a suit has been decided the parties may not bring suit again regarding the same matter Equity i Justice administered according to fairness created to temper the strict rules of English common law Injunction i A court order prohibiting someone from doing something or commanding someone to undo a wrong or injury Specific Performance i A type of injunction ordering the defendant to perform a specific act Page 12 13 Source of Law Who Creates Law Examples of Real Estate Related Laws U S Constitution U S Constitution originally ratified by states Fifth Amendment requires just compensation for land taken for public purposes Sate Constitutions Enactment varies by state Homesteads are exempt from general creditors under some state constitutions Federal Statutes U S Congress Fair Housing Act Real Estate Settlement Procedures Act State Statutes State Legislature Licensing requirements for real estate salespersons and brokers Common Law Courts Trespass and nuisance Equity Originally courts of equity now in courts of general jurisdiction Remedies Injunctions prohibiting entry to land specific performance of a real estate contract Federal Administrative Regulations Federal Administrative Agencies Clean air standards disclosure requirements in interstate land sales State Administrative Rules and Regulations State Administrative Agencies Regulation of real estate salespersons brokers and building contractors County and City Ordinances County Commissions City Councils Building permits and inspections fire codes 8 The Role of Ethics in the Law a Laws often represent the moral ethical consensus Page 13 14 The Court System 9 State Courts a Lowest trial courts divided into courts of general and limited jurisdiction i Trial courts can appeal to intermediate appellate courts No new trial just the record 1 Highest court is usually the State Supreme Court Page 14 15 10 Federal Courts a U S District court is the trial court Can hear cases involving federal law diversity jurisdiction and federal criminal cases i Thirteen circuits in U S Courts of Appeal ii U S Supreme Court hears only selected cases iii Diversity of citizenship involves parties from different states Page 15 16 Legal Procedure b Substantive law is law which creates or defines rights c Procedural law provides a process for enforcing those rights d An action is a proceeding in a court of law by which one seeks a remedy for an alleged wrong i But most real estate transactions are resolved by mediation or arbitration Page 16 Overview Stages of Litigation e Plaintiff files a complaint i Complaint is the original or initial pleading setting forth a plaintiff s claim for relief against the defendant f Defendant s Response may be a motion to dismiss a motion for summary judgment a countersuit or an answer g Discovery is a pretrial devices that can be used by one party to obtain gacts and information about the case from the other party may include i Depositions 1 A pretrial device in which one party orally questions the other party or a witness for the other party ii Interrogatories 1 A discovery device consisting of written questions generally submitted to one side of the lawsuit from the other iii Subpoenas Duces Tecum 1 A discovery device in which the court commands the production of specified documents or goods or allows the inspection of real property iv Requests for admission Page 16 18 11 The Trial a Opening Statements b Direct Examination Cross Examination c Motion for Directed Verdict d Motion for J NOV e Jury Verdict Page 19 12 Concluding Stages a Appeal s the lower may appeal to the Appellate Court b Writ of Execution the process of carrying out the judgment c Garnishment satisfaction of the debt from the losing party s property Page 19 20 Alternative Methods of Resolving Disputes 13 Settlements a An agreement to terminate all or part of a lawsuit as a result of the parties voluntary resolution of the dispute 14 Administrative Adjudication a Arbitration submission of the dispute to a neutral 3rd party for decision b Mediation a neutral 3rd party encourages the parties to settle Page 20 21 Chapter 2 The Nature of Property The Concept of Property 1 Property a Meaning of the term varies depending on the