CHAPTER # 08 Criminal Law and Cybercrime

Definition of crime:

An intentional omission or commission of an act that stand against the established social norms
or Criminal law or an act that constitutes an offense and is punishable by law is called a crime.
A crime is defined as any act done by an individual in violation of those duties that he or she
owes to society and for the breach of which the law provides that the wrongdoer shall make
amends to the public.

• U.S. criminal law system

– Person accused of a crime is presumed innocent until proven guilty
– The burden of proof is on the government
– Accused must be found guilty beyond a reasonable doubt
– Conviction requires unanimous jury vote
– Accused is provided with constitutional safeguards during the criminal justice
process

Regulatory statutes:
Statutes are the primary source of criminal law. Statutes such as environmental laws, securities
laws, and antitrust laws that provide for criminal violations and penalties.

Penal code:
A collection of criminal statutes. Penal Code defines activities considered to be crimes within
certain jurisdictions and the penalties that will be imposed for their commission.

Generally, imprisonment is imposed to

(1) Incapacitate the criminal so he or she will not harm others in society,
(2) Provide a means to rehabilitate the criminal,
(3) Deter others from similar conduct, and
(4) Inhibit personal retribution by the victim.

Parties to a Criminal Action:

In a criminal lawsuit, the government (not a private party) is the plaintiff. The government is
represented by a lawyer called the prosecutor or prosecuting attorney.
The accused, which is usually an individual or a business, is the defendant. The accused is
represented by a defense attorney.
Sometimes the accused will hire a private attorney to represent him if he can afford to
do so.
If the accused cannot afford a private defense lawyer, the government will provide one
free of charge. This government defense attorney is often called a public defender.

Classification of Crimes:
Felony:
Felonies are the most serious kinds of crimes. Felonies include crimes that are mala in
se—that is, inherently evil. Felonies are usually punishable by imprisonment. Serious violations
of regulatory statutes are also felonies.
Example: Most crimes against persons (e.g., murder, rape)
Misdemeanor:
Misdemeanors are less serious than felonies. They are crimes mala prohibita; that is,
they are not inherently evil but are prohibited by society. Misdemeanors carry lesser penalties
than felonies. They are usually punishable by fines and/or imprisonment for one year or less.
Example: Many crimes committed against property, such as robbery, burglary
Violation:
Crime that is neither a felony nor a misdemeanor that is usually punishable by a fine.
Violations are the least serious of crimes. These crimes are generally punishable by fines.
Occasionally, one day or a few days of imprisonment are imposed.
Examples: Crimes such as traffic violations, jaywalking
Intent Crimes:
A crime that requires the defendant to be found guilty of committing a criminal act (actus reus)
with criminal intent (mens rea).
Criminal act (actus reus): The defendant must have actually performed the prohibited act. The
actual performance of the criminal act is called the actus reus (guilty act). Sometimes, the
omission of an act can constitute the requisite actus reus.
Actus reus: “Guilty act”—the actual performance of a criminal act.

Criminal intent (mens rea): To be found guilty of an intent crime, the accused must be found to
have possessed the requisite state of mind when the act was performed. This is called mens rea
(evil intent).
Mens rea: “Evil intent”—the possession of the requisite state of mind to commit a
prohibited act.

Specific intent crime: A crime that requires that the perpetrator intended to achieve a
specific result from his or her illegal act.
General intent crime: A crime that requires that the perpetrator either knew or should
have known that his or her actions would lead to harmful results.
Note: Merely thinking about committing a crime is not a crime because no action has been
taken.

Non-intent Crimes:
A crime that imposes criminal liability without a finding of mens rea (intent). Nonintent crimes
are often imposed for reckless or grossly negligent conduct that causes injury to another
person. The crime of involuntary manslaughter is a nonintent crime.

Criminal Procedure:
Before the police can arrest a person for the commission of a crime, they usually must obtain
an arrest warrant based on a showing of probable cause.
The police go before a judge and present the evidence they have for arresting the suspect. If
the judge finds that there is probable cause to issue the warrant, she will do so.
The police will then use the arrest warrant to arrest the suspect.
Probable cause is defined as the substantial likelihood that a person either committed
or is about to commit a crime.
Arrest warrant: A document for a person’s detainment, based on a showing of probable cause
that the person committed a crime.
– Warrantless arrests allowed when police arrive during:

 Commission of crime
 A person is fleeing from the scene of crime
 A situation where evidence is likely to be destroyed

Booking:
– The administrative procedure for recording an arrest collecting other
information from the suspect

Indictment:
The charge of having committed a crime (usually a felony), based on the judgment of a grand
jury. If the grand jury determines that there is sufficient evidence to hold the accused for trial, it
issues an indictment. Note that the grand jury does not determine guilt. If an indictment is
issued, the accused will be held for later trial.

Information:
The charge of having committed a crime (usually a misdemeanor), based on the judgment of a
judge (magistrate). For lesser crimes (e.g., burglary, shoplifting), the accused will be brought
before a magistrate (judge). A magistrate who finds that there is enough evidence to hold the
accused for trial will issue an information statement.
Arraignment:
A hearing during which the accused is brought before a court and is (1) informed of the charges
against him or her and (2) asked to enter a plea. The accused may plead guilty or not guilty.

Nolo Contendere:
A party may enter a plea of nolo contendere whereby the accused agrees to the imposition of a
penalty but does not admit guilt.
The government has the option of accepting a nolo contendere plea or requiring the defendant
to plead guilty or not guilty.
If the government agrees to accept the nolo contendere plea, the accused and the government
usually enter into a plea bargain in which the accused agrees to the imposition of a penalty but
does not admit guilt.

Plea Bargain:
Sometimes the accused and the government enter into plea bargain negotiations prior to trial
with the intent of avoiding a trial.

Plea bargain agreement:

An agreement in which the accused admits to a lesser crime than charged. In return, the
government agrees to impose a lesser sentence than might have been obtained had the case
gone to trial.

Criminal Trial:
At a criminal trial, all jurors must unanimously agree before the accused is found guilty of the
crime charged.
If even one juror disagrees about the guilt of the accused, the accused cannot be found guilty of
the crime charged.
If all the jurors agree that the accused did not commit the crime, the accused is found not guilty
of the crime charged. After trial, the following rules apply:
• If the defendant is found guilty, he or she may appeal.
• If the defendant is found not guilty, the government cannot appeal.
• If the jury cannot come to a unanimous decision about the defendant’s guilt one way or the
other, the jury is considered a hung jury. In this situation, the government may choose to retry
the case before a new judge and jury.

Common Crimes:
Murder:
Murder is defined as the unlawful killing of a human being by another with malice aforethought
—the element of mens rea (guilty mind).
Felony Murder Rule: Sometimes a murder is committed during the commission of another
crime even though the perpetrator did not originally intend to commit murder. The intent to
commit the murder is inferred from the intent to commit the other crime.

Robbery:
In common law, robbery is defined as the taking of personal property from another person or
business by the use of fear or force.
Robbery with a deadly weapon is generally considered aggravated robbery (or armed robbery)
and carries a harsher penalty.

Burglary:
The taking of personal property from another’s home, office, or commercial or other type of
building.
Aggravated burglary (or armed burglary) carries stiffer penalties.

Larceny:
The taking of another’s personal property other than from his or her person or building.
Most personal property—including tangible property, trade secrets, computer programs, and
other business property—is subject to larceny.
Neither the use of force nor the entry of a building is required.
Theft:

Receiving Stolen Property:

A crime that involves (1) knowingly receiving stolen property and (2) intending to deprive the
rightful owner of that property.

Arson:
The willful or malicious burning of a building.

Business and White-Collar Crimes:

A type of crime that is prone to being committed by businesspersons.

Forgery:
The fraudulent making or alteration of a written document that affects the legal liability of
another person. Counterfeiting, falsifying public records, and materially altering legal
documents are examples of forgery.

Embezzlement:
The crime of embezzlement is the fraudulent conversion of property by a person to whom that
property was entrusted.
The key element here is that the stolen property was entrusted to the embezzler. This differs
from robbery, burglary, and larceny, where property is taken by someone not entrusted with
the property.

Bribery:
A crime in which one person gives another person money, property, favors, or anything else of
value for a favor in return. A bribe is often referred to as a payoff or kickback.
The offeror of a bribe commits the crime of bribery when the bribe is tendered. The offeree is
guilty of the crime of bribery when he or she accepts the bribe. The offeror can be found liable
for the crime of bribery even if the person to whom the bribe is offered rejects the bribe.
Extortion:
The crime of extortion involves the obtaining of property from another, with his or her consent,
induced by wrongful use of actual or threatened force, violence, or fear.
Extortion occurs when a person threatens to expose something about another person unless
that other person gives money or property.
The truth or falsity of the information is immaterial. Extortion of private persons is commonly
referred to as blackmail. Extortion of public officials is called extortion under color of official
right.

Criminal Fraud:
Obtaining title to property through deception or trickery constitutes the crime of false
pretenses. This crime is commonly referred to as criminal fraud or deceit.

Mail Fraud and Wire Fraud:

Federal law prohibits the use of mail or wires (e.g., telephone, television, radio, computer) to
defraud another person. These crimes are called mail fraud and wire fraud, respectively.

Money Laundering:
When criminals make money from illegal activities, they are often faced with the problem of
having large sums of money and no record of how this money was earned.
In order to “wash” the money and make it look as though it was earned legitimately, many
criminals purchase legitimate businesses and run the money through those businesses to
“clean” it before they receive the money.
– Under Money Laundering Control Act, a crime to:
 Knowingly engage in monetary transaction through financial institution
involving property from unlawful activity worth more than $10,000
 Knowingly engage in financial transaction involving proceeds of illegal
activity
 If convicted, fines of up to $500,000 or twice the value of property –
whichever is greater and sentenced to up to 20 years in federal prison
Racketeer Influenced and Corrupt Organizations Act (RICO):
A federal act that provides for both criminal and civil penalties for racketeering.

Criminal RICO: RICO makes it a federal crime to acquire or maintain an interest in, use income
from, or conduct or participate in the affairs of an enterprise through a pattern of racketeering
activity.
To prove a pattern of racketeering, at least two of these acts must be committed by the
defendant within a ten-year period. Commission of the same crime twice within this ten-year
period constitutes criminal RICO as well.
Individual defendants found criminally liable for RICO violations can be fined, imprisoned for up
to twenty years, or both. In addition, RICO provides for the forfeiture of any property or
business interests (even interests in a legitimate business) that were gained because of RICO
violations.
Civil RICO: Persons injured by a RICO violation can bring a private civil RICO action against the
violator to recover for injury to business or property. A successful plaintiff may recover treble
damages (three times the actual loss) plus attorneys’ fees.

Criminal Conspiracy:
A crime in which two or more persons enter into an agreement to commit a crime and an overt
act is taken to further the crime.
The crime itself does not have to be committed, however.
The government usually brings criminal conspiracy charges if (1) the defendants have been
thwarted in their efforts to commit the substantive crime or (2) there is insufficient evidence to
prove the substantive crime.

Cyber Crimes:
A crime that is committed using computers, e-mail, the Internet, or other electronic means.

Counterfeit Access Device and Computer Fraud and Abuse Act (CFAA):

The Counterfeit Access Device and Computer Fraud and Abuse Act (CFAA), makes it a federal
crime to access a computer knowingly to obtain (1) restricted federal government information,
(2) financial records of financial institutions, or (3) consumer reports of consumer reporting
agencies. The act also makes it a crime to use counterfeit or unauthorized access devices, such
as cards or code numbers, to obtain things of value, transfer funds, or traffic in such devices.

• Information Infrastructure Protection (IIP) Act: Federal act that makes it a crime for
anyone to access and acquire information intentionally from a protected computer
without authorization

Protection Against Unreasonable Search and Seizure:

The Fourth Amendment to the U.S. Constitution protects persons and corporations from
overzealous investigative activities by the government.
It protects the rights of the people from unreasonable search and seizure by the government. It
permits people to be secure in their persons, houses, papers, and effects.

Search warrant: A warrant issued by a court that authorizes the police to search a
designated place for specified contraband, articles, items, or documents. A search warrant must
be based on probable cause.

Warrantless searches are permitted only (1) incident to arrest, (2) where evidence is in “plain
view,” or (3) where it is likely that evidence will be destroyed.
Warrantless searches are judged by the probable cause standard.

Exclusionary Rule:
A rule that says evidence obtained from an unreasonable search and seizure can generally be
prohibited from introduction at a trial or an administrative proceeding against the person
searched.

Good faith exception to the exclusionary rule: This exception allows evidence otherwise
obtained illegally to be introduced as evidence against the accused if the police officers who
conducted the unreasonable search reasonably believed that they were acting pursuant to a
lawful search warrant.

Privilege Against Self-Incrimination:

The Fifth Amendment provision that a person may not be required to be a witness against
himself or herself in a criminal case. This is called the privilege against self-incrimination.

A person who asserts this right is described as having “taken the Fifth.

The protection against self-incrimination applies only to natural persons who are accused of
crimes. Therefore, artificial persons (e.g., corporations, partnerships) cannot raise this
protection against incriminating testimony.14 Thus, business records of corporations and
partnerships are not generally protected from disclosure, even if they incriminate individuals
who work for the business.

Miranda Rights:
Rights that a suspect must be informed of before being interrogated, so that the suspect will
not unwittingly give up his or her Fifth Amendment right.

 You have the right to remain silent.

 Anything you say can and will be used against you.
 You have the right to consult a lawyer and to have a lawyer present with you during
interrogation.
 If you cannot afford a lawyer, a lawyer will be appointed free of charge to represent you.

Attorney–Client Privilege and Other Privileges:

A rule that says a client can tell his or her lawyer anything about the case without fear that the
attorney will be called as a witness against the client.
This information is protected from disclosure by the attorney–client privilege recognized by the
Fifth Amendment.
Psychiatrist/psychologist–patient privilege so that the accused may tell the truth in order to
seek help for his condition.
• Priest/rabbi/minister/imam–penitent privilege so that the accused may tell the truth in
order to repent, be given help, and seek forgiveness for his deed.
• Spouse–spouse privilege so that the family will remain together.
• Parent–child privilege so that the family will remain together.

• No accountant-client privilege under federal law

– Accountant can be called as a witness in cases involving federal crimes

Immunity from Prosecution:

The government’s agreement not to use against a person granted immunity any evidence given
by that person.
Once immunity is granted, the suspect loses the right to assert his or her Fifth Amendment
privilege.
Fifth Amendment Protection Against Double Jeopardy:

The Double Jeopardy Clause of the Fifth Amendment protects persons from being tried twice
for the same crime.

Sixth Amendment Right to a Public Jury Trial:

The Sixth Amendment guarantees that a criminal defendant has the right to a public jury trial.
This includes the rights (1) to be tried by an impartial jury of the state or district in which the
alleged crime was committed, (2) to confront (cross-examine) the witnesses against the
accused, (3) to have the assistance of a lawyer, and (4) to have a speedy trial.

Eighth Amendment Protection Against Cruel and Unusual Punishment:

• Case
– Maryland v. Kulbicki
– 136 S.Ct. 2 (2015)
– Supreme Court of the United States
• Issue
– Were Kulbicki’s attorneys unconstitutionally ineffective in
representing him at trial?
https://www.chegg.com/homework-help/maryland-v-kulbicki-136-sct-2-2015-us-
lexis-4693-2015-suprem-chapter-8-problem-1mctq-solution-9780134728780-exc

• Case
– United States v. Barrington
– 648 F.3d 1178, 2011 U.S. App. Lexis 16535 (2011)
– United States Court of Appeals for the Eleventh Circuit
• Issue
– Was Barrington guilty of the crimes charged and was the prison
sentence appropriate?
https://law.justia.com/cases/federal/district-courts/FSupp2/210/773/2579661/
 • Case
– Birchfield v. North Dakota
– 136 S.Ct. 2160 (2016)
– Supreme Court of the United States
• Issue
– Do the North Dakota and Minnesota statutes that make it a crime to
refuse breath or blood tests violate the Fourth Amendment?

https://www.lexisnexis.com/community/casebrief/p/casebrief-birchfield-v-north-dakota

• Case
– Riley v. California
– 134 S.Ct. 2473 (2014)
– Supreme Court of the United States
• Issue
– Can the police, without a warrant, search digital information on a cell phone
from an individual who has been arrested?
https://www.lexisnexis.com/community/casebrief/p/casebrief-riley-v-california#:~:text=Riley
%20v.%20California%20%2D%20134%20S,2473%20(2014)&text=The%20United%20States
%20Supreme%20Court's,is%20seized%20incident%20to%20arrest.
 CHAPTER # 48 REAL PROPERTY

Real property:
The land itself as well as buildings, trees, soil, minerals, timber, plants, and other things
permanently affixed to the land
• Types
– Land and buildings
– Subsurface rights (mineral rights): Rights to the earth located beneath the
surface of the land. These rights can be very valuable. Gold, uranium, oil, or
natural gas may lie beneath the surface of the land. Theoretically, mineral rights
extend to the center of the earth.
– Plant life and vegetation: Plant life and vegetation growing on the surface of
land are considered real property
– Fixtures: Goods that are affixed to real estate and thus become part thereof
– Air rights: Owners of land may sell or lease air space parcels above their land
This is especially popular in densely populated cities

Estates in Land:
A person’s ownership right in real property is called an estate in land (or estate). An estate is
defined as the bundle of legal rights that the owner has to possess, use, and enjoy the property.
The type of estate that an owner possesses is determined from the deed, will, lease, or other
document that transferred the ownership rights to him or her.

Freehold Estate:
• Estate in which the owner has a present possessory interest in the real property

Fee Simple Absolute (or Fee Simple)

A fee simple absolute is an estate in fee that is the highest form of ownership of real property
because it grants the owner the fullest bundle of legal rights that a person can hold in real
property. It is the type of ownership most people connect with owning real property.
A fee simple owner has the right to exclusively possess and use his property to the extent that
the owner has not transferred any interest in the property
• Is infinite in duration (fee)
• Has no limitation on inheritability (simple)
• Does not end upon the occurrence of any event (absolute)

Fee Simple Defeasible (or Qualified Fee):

A type of ownership of real property that grants the owner all the incidents of a fee simple
absolute except that it may be taken away if a specified condition occurs or does not occur.

Life Estate:

An interest in real property for a person’s lifetime; upon that person’s death, the
interest is transferred to another party.

Estate pour autre vie

A life estate that is measured by the life of a third party.

Concurrent or Co Ownership:
A situation in which two or more persons own a piece of real property.

Joint Tenancy:
Two or more parties can own real estate as joint tenants.
The most distinguished feature of a joint tenancy is the co-owners’ right of survivorship. This
means that upon the death of one of the co-owners (or joint tenants), the deceased person’s
interest in the property automatically passes to the surviving joint tenant or joint tenants. Any
contrary provision in the deceased’s will is ineffective.

 Right of survivorship: Upon the death of one joint tenant, the deceased
person’s interest in the real property automatically passes to the
surviving joint tenant or joint tenants

Tenancy in Common:
A form of co-ownership in which the interest of a surviving tenant in common passes to the
deceased tenant’s estate and not to the co-tenants.
Unless otherwise agreed, a tenant in common can sell, give, devise, or otherwise transfer his or
her interest in the property without the consent of the other co-owners.

Tenancy by the Entirety:

Tenancy by the entirety is a form of co-ownership of real property that can be used only by
married couples. A surviving spouse has the right of survivorship.
Tenancy by the entirety is distinguished from joint tenancy in that neither spouse may sell or
transfer his or her interest in the property without the other spouse’s consent.

Community Property:
A form of ownership in which each spouse owns an equal one-half share of the income of both
spouses and the assets acquired during the marriage.
Property that is acquired through gift or inheritance either before or during marriage remains
separate property. Interest payments, dividends, and appreciation of separate property
received or accrued during marriage are also separate property.
When a spouse dies, the surviving spouse automatically receives one-half of the community
property. The other half passes to the heirs of the deceased spouse, as directed by will or by
state intestate statute if there is no will. During the marriage, neither spouse can sell, transfer,
or gift community property without the consent of the other spouse. Upon a divorce, each
spouse has a right to one-half of the community property.

Condominium:
A common form of ownership in a multiple-dwelling building in which the purchaser has title to
the individual unit and owns the common areas as a tenant in common with the other
condominium owners.

Cooperative:
A form of co-ownership of a multiple-dwelling building in which a corporation owns the building
and the residents own shares in the corporation.
Each cooperative owner leases a unit in the building from the corporation under a renewable,
long-term, proprietary lease. Individual residents may not secure loans for the units they
occupy.
Usually, cooperative owners may not sell their shares or sublease their units without the
approval of the other owners.

Future Interests:
A person may be given the right to possess property in the future rather than in the present.

Reversion:
A reversion is a right of possession that returns to the grantor after the expiration of a limited
or contingent estate. Reversions do not have to be expressly stated because they arise
automatically by law.

Remainder:
If the right of possession returns to a third party upon the expiration of a limited or contingent
estate. The person who is entitled to the future interest is called a remainder beneficiary.

Transfer of Ownership of Real Property:

Sale of Real Estate:
An owner may offer his or her real estate for sale either by himself or herself or by using a real
estate broker. When a buyer has been located and the parties have negotiated the terms of the
sale, a real estate sales contract is executed by the parties.
The Statute of Frauds in most states requires this contract to be in writing.
The seller delivers a deed to the buyer, and the buyer pays the purchase price at the closing, or
settlement.
Unless otherwise agreed, it is implied that the seller is conveying fee simple absolute title to the
buyer. If either party fails to perform, the other party may sue for breach of contract and obtain
either monetary damages or specific performance.

Deed:
– Deed: Instrument that describes a person’s ownership interest in a piece of real
property
  Grantor: Party who transfers an ownership interest in real property
 Grantee: Party to whom an interest in real property is transferred

General warranty deed:

A deed that protects a grantee of real property from defects in title caused by the grantor and
prior owners of the property.
In a general warranty deed, the seller warrants that he owns the property, has the legal right to
sell it, that the property is not subject to encumbrances (e.g., mortgages), leases, or easements
other than those that are disclosed, the property is not subject to that his title is superior to any
other claim of title to the property, that he will defend the grantee’s title against all other
claims, and will compensate the grantee for any losses suffered if title proves faulty. The
guarantee is not limited to the time that the grantor owned the property but extends back to
the property’s origins.

Special warranty deed:

A special warranty deed (or limited warranty deed) only protects a buyer from defects in title
that were caused by the seller. Thus, under this type of deed, the seller is not liable for defects
in title that existed before the seller obtained the property or for encumbrances that were
present when the seller obtained the property.

Quitclaim deed:
A quitclaim deed is a deed in which the grantor transfers only whatever interest he has in the
real property.
In a quitclaim deed, the grantor does not guarantee that he owns the property. A quitclaim
deed provides the least amount of protection to a grantee because only the grantor’s interest
in the property is conveyed.
Quitclaim deeds are not usually used as a deed from a seller to a buyer. They are most often
used when property transferred between relatives by gift or otherwise.

Recording Statute:
A state statute that requires a mortgage or deed of trust to be recorded in the county
recorder’s office of the county in which the real property is located.
Quiet Title Action:
An action brought by a party, seeking an order of the court declaring who has title to disputed
property. The court “quiets title” by its decision.
A party who is concerned about his or her ownership rights in a parcel of real property can
bring a quiet title action, which is a lawsuit to have a court determine the extent of those rights.
Public notice of the hearing must be given so that anyone claiming an interest in the property
can appear and be heard.

Marketable Title:
Title to real property that is free from any encumbrances or other defects that are not disclosed
but would affect the value of the property. A grantor has the obligation to transfer marketable
title, or good title, to the grantee.
1. Attorney’s opinion. An attorney examines an abstract of title and renders an opinion
concerning the status of the title. The attorney can be sued for any losses caused by his or her
negligence in rendering the opinion.
2. Torrens system. The Torrens system is a method of determining title to real property in a
judicial proceeding at which everyone claiming an interest in the property can appear and be
heard. After the evidence is heard, the court issues a certificate of title to the person who is
determined to be the rightful owner.
3. Title insurance. The best way for a grantee to be sure that he or she has obtained marketable
title is to purchase title insurance from an insurance company. The title insurer must reimburse
the insured for any losses caused by undiscovered defects in title. Each time a property is
transferred or refinanced, a new title insurance policy must be obtained.

Tax Sale:
If an owner of real property fails to pay property taxes, the government can obtain a lien on the
property for the amount of the taxes. If the taxes remain unpaid for a statutory period of time,
the government can sell the property at a tax sale to satisfy the lien.

Gift or Inheritance:
Ownership of real prspouseoperty can be transferred by gift. The gift is made when the deed to
the property is delivered by the donor to the donee or to a third party to hold for the donee.
Adverse Possession:
A situation in which a person who wrongfully possesses someone else’s real property obtains
title to that property if certain statutory requirements are met.
Under the doctrine of adverse possession, the transfer of the property is involuntary and does
not require the delivery of a deed. To
• To obtain title, wrongful possession must be:
– For a statutorily prescribed time period
– Open, visible, and notorious
– Actual and exclusive
– Continuous and peaceful
– Hostile and adverse

Easements and Nonpossessory Interests:

Easement:
Required right to make limited use of someone else’s land without owning or leasing it.
Easements can be expressly created by grant (where an owner gives another party an
easement across his or her property)
Reservation (where an owner sells land that he or she owns but reserves an easement on the
land).
Implication, where an owner subdivides a piece of property with a well, path, road, or other
beneficial appurtenant that serves the entire parcel, or by
Necessity— for example, where “landlocked” property has an implied easement across
surrounding property to enter and exit the landlocked property. Easements can also be created
by prescription—that is, by adverse possession.

Easement Appurtenant:
A situation created when the owner of one piece of land is given an easement over an adjacent
piece of land.
 – Servient estate: Land over which an easement is granted
– Dominant estate: Land that benefits from an easement

Easement in Gross:
An easement in gross authorizes a person who does not own adjacent land the right to use
another person’s land. An easement in gross is a personal right because it does not depend on
the easement holder owning adjacent land. Thus, there is no dominant estate.

License:
A license grants a person the right to enter upon another’s property for a specified and usually
short period of time. The person granting the license is called the licensor; the person receiving
the license is called the licensee.

Profit-à-Prendre:
A document that grants a person the right to remove something from another’s real property.

Zoning:
Local laws that are adopted by municipalities and local governments to regulate land use within
their boundaries.
Most counties and municipalities have enacted zoning ordinances to regulate land use. Zoning
generally
(1) Rstablishes land use districts within the municipality (i.e., areas are generally designated
residential, commercial, or industrial);
(2) Restricts the height, size, and location of buildings on a building site; and
(3) Establishes aesthetic requirements or limitations for the exterior of buildings.

• Variance: Exception that permits a type of building or use in an area that would not
otherwise be allowed by a zoning ordinance
 • Nonconforming uses: Uses for real estate and buildings that exist in a zoned area that
are permitted to continue even though they do not fit within a new zoning use
established for the area

• Case
– Robenolt v. Zyznar
– 2014 Ohio App. Lexis 2541 (2014)
– Court of Appeals of Ohio
• Issue
– Was there a mutual mistake that would warrant reformation of the deed?

https://www.chegg.com/homework-help/state-court-case-reformation-deed-robenolt-v-
zyznar-2014-ohi-chapter-48-problem-1rctq-solution-9780134728780-exc

• Case
– Paine v. Sexton
– 37 N.E.3d 1103 (2015)
– Appeals Court of Massachusetts
• Issue
– Have the plaintiffs obtained the disputed property through adverse possession?
https://www.chegg.com/homework-help/questions-and-answers/record-holders-real-
property-bear-burden-checking-discover-whether-someone-else-using-prop-q74133933

• Case
– The Willows, LLC v. Bogy
– 2013 Ark. App. Lexis 66 (2013)
– Court of Appeals of Arkansas
• Issue
 – Has a prescriptive easement been created?
https://www.chegg.com/homework-help/state-court-case-easement-willows-llc-v-bogy-2013-
ark-app-le-chapter-48.3c-problem-1eq-solution-9780134004815-exc
 CHAPTER # 54 INTERNATIONAL AND WORLD TRADE LAW

International Law:
• Law that:
– Governs affairs between nations
– Regulates transactions between individuals and businesses of
different countries
• Has no:
– Single legislative source
– Single world court responsible for interpretation
– World executive branch to enforce international law

• Foreign Commerce Clause: Vests Congress with the power to regulate

commerce with foreign nations
• Treaty Clause: States that the president shall have the power to make
treaties, provided two-thirds of the senators present concur
Treaty:
• Agreement between two or more nations that is formally signed by an authorized
representative of each nation and ratified by each nation
– Bilateral treaty: Between two nations
– Multilateral treaty: Involves more than two nations
– Convention: Treaty sponsored by an international organization
United Nations (UN):
• International organization created by multilateral treaty in 1945 to:
– Promote economic and social cooperation among nations
– Protect human rights
Governance of the United Nations:

• General Assembly: Legislative body that is composed of all UN member nations

– Adopts resolutions concerning human rights, trade, finance, and economics
• Security Council: Composed of 15 member nations
– Five permanent members
– Ten members are chosen by the members of General Assembly, responsible for
maintaining international peace and security

• Secretariat: Staff of persons that administers the day-to-day operations of the UN

– Headed by the secretary-general, who is elected by the General Assembly

United Nations Agencies:

• United Nations Educational, Scientific, and Cultural Organization (UNESCO)
• United Nations Children’s Fund (UNICEF): Agency of the United Nations whose primary
function is to provide aid to improve the lives of the world’s children
– Goal is to provide humanitarian aid and assistance to children and mothers of
children in developing countries
• International Monetary Fund (IMF): Agency of the United Nations whose primary
function is to promote sound monetary, fiscal, and macroeconomic policies worldwide
by providing assistance to poor countries

World Bank:
• Comprises more than 180 member nations
• Provides money to developing countries to fund projects for humanitarian purposes and
to relieve poverty

International Monetary Fund (IMF):

 • Agency of the United Nations whose primary function is to promote sound monetary,
fiscal, and macroeconomic policies worldwide by providing assistance to poor countries

International Court of Justice (ICJ):

• Judicial branch of the United Nations
• Also called the World Court
• Located in The Hague, the Netherlands
• Only nations can have cases decided by this court
• Cases involving treaties and the UN Charter

European Union (EU):

• Regional international organization comprised of:
– Austria, Belgium, Bulgaria, Croatia, Cyprus (the Greek part), Czech Republic,
Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy,
Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania,
Slovakia, Slovenia, Spain, Sweden
– Not United Kingdom is comprised of four countries: Britain, Wales, Scotland, and
Northern Ireland
 It joined the EU in 1973 but voted to leave it in 2016
• EU was created to promote peace and security, and economic, social, and cultural
development

EU Administration:
• Council of Ministers: Composed of representatives from each member country who
meet periodically to coordinate efforts to fulfill objectives of the treaty
• European Union Commission: Charged to act in the best interest of the union
– Independent of the member nations
• Euro: Single monetary unit that has been adopted by many countries of the EU that
comprise the eurozone
North American Free Trade Agreement (NAFTA):
• Treaty that has removed or reduced tariffs, duties, quotas, and other trade barriers
among the United States, Canada, and Mexico
• Country can reimpose tariffs if an import surge from one of the other nations hurts its
economy or workers
• Special protection for favored industries

Association of Southeast Asian Nations (ASEAN):

• Cooperative regional association of diverse nations that cooperate in promoting
economic, political, and cultural issues
• ASEAN Plus Three (APT): Includes China, Japan, and South Korea
• ASEAN-China Free Trade Area (ACFTA)
• ASEAN-India Free Trade Area (AIFTA)
• ASEAN-Japan Comprehensive Economic Partnership
• ASEAN-Korea Free Trade Area (AKFTA)

Other Regional International Organizations:

• Organization of the Petroleum Exporting Countries (OPEC): Comprising of the oil-
producing and oil-exporting countries of the world
• Central America Free Trade Agreement (CAFTA): An association of several Central
American countries and the United States designed to reduce tariffs and trade barriers
among member nations

South and Central American Regional Economic Organizations

• Mercosur: Comprised of Argentina, Brazil, Paraguay, Uruguay, and Venezuela
• Andean Community of Nations (CAN): Comprised of Bolivia, Columbia, Ecuador, and
Peru
• Union of South American Nations (UNASUR): Economic organization consisting of 12
member nations with a population of approximately 400 million people
World Trade Organization (WTO):
• International organization of 160 member nations created to promote and enforce
trade agreements among member countries and customs territories
– Headquartered in Geneva, Switzerland
• General Agreement on Tariffs and Trade (GATT)
– Multilateral treaty that establishes trade agreements and limits tariffs and trade
restrictions among its member nations

WTO Dispute Resolution:

• WTO panel: Body of three WTO judges that hears trade disputes between member
nations and issues panel reports
• WTO dispute settlement body: Composed of one representative from each WTO
member nation that reviews panel reports
• WTO appellate body: Panel of seven judges selected from WTO member nations that
hears and decides appeals from decisions of the dispute-settlement body

National Courts and International Dispute Resolution:

• National courts: Courts of individual nations
– Primarily deals with commercial disputes between private litigants
• Commercial disputes between U.S. companies and foreign governments or
parties may be brought in U.S. District Court

Judicial Procedure:
• Choice of forum clause (forum-selection clause): Designates which nation’s court has
jurisdiction to hear a case arising out of the contract
• Choice of law clause: Designates which nation’s laws will be applied in deciding a
dispute arising out of the contract

Act of State Doctrine:

• Judges of one country cannot question the validity of an act committed by another
country within that other country’s borders
 – Based on the principle that a country has absolute authority over what
transpires within its own territory

Doctrine of Sovereign Immunity:

• Countries are granted immunity from suits in courts of other countries
• Foreign Sovereign Immunities Act (FSIA)
– Governs suits against foreign nations that are brought in federal or state courts
in the United States
– Codifies the principle of:
 Qualified immunity
 Restricted immunity

Under the restrictive approach, immunity is only available in respect of acts resulting from the

exercise of a sovereign power. As such, states may not claim immunity in respect of
commercial activities or over commercial assets.
In the United States, qualified immunity is a legal principle that grants government officials
performing discretionary (optional) functions immunity from civil suits unless the plaintiff shows
that the official violated "clearly established statutory or constitutional rights of which a
reasonable person would have avoided.

Exceptions to the FSIA:

• If the foreign country has waived its immunity, explicitly or by implication
• Commercial activity exception
– States that a foreign country is subject to lawsuit in the United States if it:
 Engages in commercial activity in the United States
 Carries on such activity outside the United States but causes a direct
effect in the United States
• Case
– Glen v. Club Mediterranee, S.A.
– 450 F.3d 1251 (2006)
 – United States Court of Appeals for the Eleventh District
• Issue
– Does the act of state doctrine bar recovery by the Glens?

https://www.chegg.com/homework-help/federal-court-case-act-state-doctrine-glen-v-club-
mediterran-chapter-54.1c-problem-1eq-solution-9780134004815-exc

• Case

– OBB Personenverkehr AG v. Sachs

– 136 S.Ct. 390 (2015)

– Supreme Court of the United States

• Issue

– Does the commercial activity exception to sovereign immunity apply to the facts of the
case?

https://www.oyez.org/cases/2015/13-1067