So I buy one gospel CD for a family member's christmas present, and the next thing I know I'm chanting civil procedure and taking gawd's seizures seriously. See More Recommendations?C.D.'s Nuts
|It's raining now, for the first time since we moved here. Its been three weeks, three weeks without rain. Only scorching hot heat. I told myself I wouldn't write anything here until it rained.|
Ok, that's not true. But it sounds nice. Nicely dumb.
It didn't rain during the bar exam. Nothing happened during the bar exam. Nobody wigged. The power didn't go out. The toilets didn't overflow. The whole thing went so smoothly, you could have sworn that everybody there had done it before. The questions kind of sucked though. Especially the essays. I'll find out the results in, um, October. Late, um, October.
The power did go out last night. At my mem's house. Mem is mother-in-law. I was at her house with Agua Linda and her sister. Mem was at work. When the power went out, we called the power company and they said that they'd send someone out to fixx it lickety-split. They did - we saw the fixer pull up as we drove away. But we didn't want to stick around. We waited out the outage by racing off to the frontier. Normally when you think of the frontier you don't think about a place that would have power, or other amenities that would make one comfortable. But this place did. That's because by "frontier," I mean Frontera Tex-Mex Restaurant. A guy there played acoustic guitar, accompanied by pre-recorded beats and lead instruments. He played Beatles, Stones, REM, U2... As we stood to leave, he started up "Fast as You" by Dwight Yoakam. I made everyone sit back down. Also while there I received a photo text message from Manjoh:
Manjoh has moved to N.C.It rained once in Florida. We got back from Florida 2 days ago. The rain was brief, but terrifyingly hard. Agua & I were in the car, just getting in sight of the beach when it hit. We had just passed a boiled peanut stand in Freeport that beckoned us to stop and "see the baby monkey." But it was deserted. I figured peanut man knew the rain was coming, so had taken his fragile baby monkey to safety. But on the way back out of town, 6 days later, it was still deserted. Balls. Thumbs down, deserted peanut stand. The rest of the trip though, was perfect. There are still some dunes left along the Gulf Coast. There is also some really good seafood stew at Stinky's in Santa Rosa Beach.
So the use is probably not as forthcoming as I would like
Just like Coney.Except nothing like Coney.Big foot likes the sand,Little likes the waves.Souvenirs:I got a haircut, Agua got a shirt.
The day after the bar exam I had some hours to kill before flying back to Brooklyn. So I looked at some places to rent Agua found on craigslist that morning. We ended up getting one in Kirkwood, which a neighborhood at the very outskirts of Atlanta even though it is in Dekalb County not Fulton County like the rest of Atlanta. Mem's grandmom used to own the general store in Kirkwood, along with several houses that she rented out. That was a very long time ago. So it's nice to live in a place where there is some family history. Mem grew up not too far away, and went to church in a church that's still down on the end of our street all-though it's longer a church. It's also nice to live in a place where there is a bar that plays Cash and sells Lonestar $2. Bar doesn't have shiner bock, but that can be bought by the dozens from the new Krogers on Moreland.
Red doors bring good luck, Speaking of Shiner Bock, the brewery's been counting down the years to its 100th anniversary with a new special brew each year. I missed out on the first year - Shiner 96 in 2005 was a "marzan-style ale" (?) I found last year's Shiner 97 at the package store in L5P. Its a "Bavarian Black Beer." I know, I know, "why's it got to be black?" Maybe because it's a bit chocolate tasting. Not really to my liking. For 2007, they've got a "Bavarian Amber" out now. I haven't been able to find it. Stinky's in Santa Rosa Beach said they had Shiner specialty brews, but only the bock was on the menu.
and we'll need it, to avoid the bumblebees.
Before leaving Bklyn the hog gave us a rooftop farewell blowout. She grilled us up some filet mignons (I was in the middle of my "meat-week," so I partook), and some kebabs. All was delicious. Hog also gave us her black leather recliner. Crazy hog. But it goes well with the new red sofa we got. Red + Black time. Thanks Hog! We left the old sofa and old recliner in our apartment for the nice young law chode couple from south alabama who took our place at 144 Willow.
On a rooftop in Bk|yn, at one in the morning,Pretty much the entire residency of 144 Willow graduated. Which means everyone had to go. According to most law chodes, the idea of moving isn't so much "taking your stuff to a new place to live." It's more like "throwing all your stuff out and then buying new stuff. So the trash pile outside of the building was enormous. It looked like an Ikea 'sploded. Big thanks to law chode etHAN for helping us actually move our stuff to a truck, rather than toss it all out the window into the growing pile.
Hog said don't post a picture of my ass on your blog.
Law Chode stands at street level.
Keep in mind the trash begins another 3 feet below that.
I ♥ Penske
All you u-haulers don't know what you're missing.
Summer 2004 v. Summer 2007A lot has changed, just not the shirt.
|...until I check in for the bar exam. I would like to go to the Office of Bar Admissions website and read the schedule and rules for the bar exam. Seems like there may be some important information there. |
But I can't. Because it's crashed.
|When I Think About Law I Touch & Concern Myself, a.k.a. things you learn your first year of law school, then forget, then have to learn all over when studying for the bar exam.|
Enforcing a Burden of a Covenant
and Dianne are neighbors. Sam says he'll build a fence between their property if Dianne will
promise that she and her heirs will maintain it. What a deal! Free Fence! Dianne agrees. Thus, a Covenant is formed. A covenant is a promise. The agreement
is written up, signed, and recorded in the appropriate state office that records things that involve title to land. In Georgia, this would be the Clerk's Office of the Superior Court in the county where the land is located.
Later, Dianne sells her lot to Frazier. With the land that he buys comes the
Burden of the covenant. Dianne doesn't tell Frazier about maintaining the fence, and he just won't do it when Sam asks him to. For shame, ya'll! So Sam
sues Frazier for damages. Frazier is the Successor-in-Interest (meaning that he bought into the land) and
the Defendant. Sam is an original party to the covenant, and is trying
to enforce the Burden of the covenant onto the Defendant. To do so,
Sam must show
1. Intent to bind successors in interest
2. Notice to successors
3. The covenant touches and concerns the land, and
4. Vertical and Horizontal Privity.
Sam can prove 1, 2, and 3, but (uh-oh) not 4! (1) As stated above, the Covenant was intended to bind Dianne and all her heirs, which includes any successor-in-interest to her property. (2) Even though Dianne never told him about it, Frazier has constructive notice of the covenant, since the covenant was recorded in the county office. (3) "Touch and Concerns the land" really just means that the Covenant makes the land more valuable or more useful. The Covenant here touches and concerns the land since it makes it more valuable for there to be a fence on it. (4) In this context "Privity" means a conveyance of land. There is Vertical Privity when one party conveys land to another. There is Horizontal Privity when one party conveys part of his land to another, and retains for himself the remainder of the land.
Here, there is Vertical Privity because
the land was conveyed to Frazier by Dianne. But Dianne and Sam were
never in Horizontal Privity to begin with, since there was no transfer of any interest in land at the time the Covenant was formed. So, Sam can't enforce the Covenant, in a suit at law, for money damages. Go home and cry in your beer, Sam! Cry in your beer while looking out over the broken shambles of your once-lovely fence!
But wait! Sam CAN enforce the covenant in equity as an Equitable Servitude, and get an
injunction forcing Frazier to fix the fence himself! The difference between enforcing something in a suit at law, and in equity, really has to do with the remedy you're looking for. If you want money, you sue at law. If you want action, then you sue in equity. An injunction would be action, because its forcing someone to do something that they are supposed to be doing.
To enforce an
equitable servitude, Sam would have to show
1. Intent to bind successors in interest
2. Notice, and
3. Touch and concern.
Privity is not a requirement in Equity! Woo-hoo, woo-hoo-hoo! Get out to that yard and fix up that fence, Brother Frazier! Maybe Sam will give you a beer, so you can get hammered while you hammer!
(Not bloody likely - Sam's got himself plenty of attorney fees to deal with. Let Frazier buy his own damn beer.)
Change of Facts! Sam originally owned both lots, and sold one to Dianne. The
Deed that conveyed title to Dianne contained the covenant about the fence. Now, when Dianne conveys the
property to Frazier, there is both Horizontal and Vertical Privity. Horizontal Privity exists because Sam once owned both the neighboring lots, and the Covenant was created when he conveyed a part of the land away. So
Sam can either (1) enforce the covenant at law, and get damages, or (2)
enforce the covenant in equity as an equitable servitude, enjoining
Frazier to fix the fence.
Enforcing a Benefit of a Covenant
Original Facts - Sam and Dianne are simply neighbors, and Dianne agrees that she and her heirs will fix the fence.
This time, Sam sells his lot to Norm. Along with his purchase
comes the Benefit of the Covenant. Norm wants to sue Dianne for
damages because she's not fixing the fence. Norm is the
Successor-in-Interest, enforcing his Benefit. He must show
1. Intent to bind successors
2. Touch and concerns the land, and
3. Vertical Privity only.
wins because he is in vertical privity with an original party to the
contract, and that's all he needs. Horizontal privity does not have to
be shown. Note that here Norm doesn't have to show notice either. Since Dianne
was an original party, of course she has notice, dum-dum!
As an alternative, Norm can sue in equity. He'll win by showing
1. Intent to bind successors, and
2. Touch and Concerns the land.
Again, notice isn't required, because Dianne is an original party to the Covenant.
Enforcing a Benefit and a Burden
Facts - Sam and Dianne are neighbors, agree to the covenant. Dianne
sells her land to Frazier and Sam sells his land to Norm. Dianne is
burdened by the covenant, and Norm is benefited by it. So, Norm must
now enforce both the Benefit and the Burden. Both rules from above
apply, and since he can't enforce the Burden because of a lack of
Horizontal Privity, he can't collect damages.
But, like Sam did above, he can enforce it as an equitable servitude, and enjoin Frazier into fixing the fence.
Note on Notice Requirements: Notice can be
2. Constructive, or
Actual notice arises when someone is told something - like when the Covenant is written on the face of the Deed. Constructive notice arises when the Covenant is properly recorded. The person buying the land is assumed to have consulted the records regarding the land he is purchasing, and so he would have seen Covenant. Inquiry notice means that the person buying the land would see that the Covenant existed when he inspected the land. Inquiry notice would not occur in the above situation, since there's nothing that would indicate Frazier that it's his responsibility to fix the fence.
This doctrine is called "Reciprocal Negative Servitudes" aka "Mutual Rights of Enforcement."
is relied on to allow each lot owner in a residential subdivision to
enforce restrictions on use against every other lot owner in the
subdivision. For example, imagine that a brand new subdivision was created, and it's intended that each buyer of a lot would only use the land to build a single family residence. Sam and Dianne both buy lots, and their Deeds both state that fact. Dianne then sells her lot to Frazier, but the Deed to Frazier doesn't mention the fact that the lot can only be used for single family residences. What happens, then, if Frazier wants to build a big office building on his land instead? Sam, or any of the landowners in the subdivsion can sue in equity to stop the buyer from constructing the office building. To be successful, Sam must show
1. An Intent to create a Servitude (a restriction on use) on ALL land in the subdivision, and
For intent, look to the Deeds of all the original homeowners. They all said the lots were for residential use only. Sometimes there is even a common
building plan - a map reflecting the fact that each lot was only
supposed to have a home on it. These get filed in government offices for proposed developments. For notice, here it's possible to have Inquiry Notice. Since all the lots surrounding
the one Frazier bought consisted of only single-family homes, Frazier should have known that all the land in the subdivision is only meant to be used for that purpose.
Sometimes the plaintiff's suit will fail, because there are defenses to the enforcement of equitable actions. Equity looks at fairness, and it would be unfair to enforce the Servitude if:
1. Unclean Hands - Sam is violating the Servitude as well
2. Acquiescence - Sam let other land owners violate the Servitude
3. Laches - Sam sat by and watched while Frazier built the office building, so now it's too late to enforce the Servitude because Frazier spent a ton of money.
4. Estoppel - Sam represented to Frazier that Sam had no problem with Frazier's plans.
Back of my Neck's Feeling Dirty and Gritty
And I haven't even left the library yet
Yeah. The library has thermometers in each room, I guess to make sure it doesn't get so hot that the books melt. I took this picture at about 10:30 tonight. 10:30! PM! Someone crack a window, please. The A/C's on during the day, when, you know, faculty is about. But come 6 o'clock and it's every law chode for himself.
Aside from the unwelcome heat (and the studying, oh, and the credit card fraud), it's been a pretty good month: I graduated. I looked at the pinwheel. Lots of family came to visit. I ate some orange-peel tinged fried okra, probably the grandest of all okrys in all of okry-land. I was given a football, a Tiffany beer mug, and a plethora of brooklyn-centric t-shirts as graduation presents. I went to Coney Island, twice. I saw a kickass concert while standing in a pool. And, perhaps the greatest of all, I discovered that Tifton, Georgia's "The Fun Channel" is now broadcasted over the internets
You remember the Fun Channel, right? I talked about it once before, its basically like public access, but its not really public access. It's more like a very local cable channel run by one guy (Hayward). I first encountered it when I was down there shooting video for UGA (the pig shit pond clean-up video). Anyway, Thursday at 9pm is the live call-in show. Good God, I am looking forward to Thursday at 9pm.
Pinwheel given to Hog, for as long as Prince is alive and not a lawyer.
Hog held a fee simple defeasible. Steg had a possibility of reverter.
Pappy O'Daniel can't wait for the day that Brooklyn Law School becomes a middle school.
He is really looking forward to it. You know why.
When in Coney, eat a hot dog.
This one is for you, Jig. You know why.
When in Coney, watch out for rats.Also watch out for rat-bastard developers.
Agua v. Law Chode. Agua Wins
Prince, by virtue of getting crunk, is declared a winner as well.
Williamsburg seems a lot cleaner than I remember it being back in the day.But then again, I was the drunk bastard kicking over trash cans, back in the day.
I am fully confident that I will pass the bar exam.
But even if I don't, I will think back to the Superchunk and Oakley Hall show and be happy I skipped a day of studying.
See you in July,