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Page history last edited by abogado 1 year, 5 months ago

http://lamission.org

 

 

Format for Law 34 Final Research Paper

 

Possible Topics 

Case citations - federal - california sample past papers  Legal Research 

 

Students in  Law 34 are required to do a legal research and writing paper.

 

Below is the format for your paper. You will post the various parts of your paper and the final paper under canvas.


Make sure you create an "Argumentative Paper" which states and proves an argumentative thesis


 

Here is how your paper will be graded  


The parts of your paper which you will post under your online classroom 

1. post your research topic

2. post preliminary research information on your topic

3. post your paper's thesis

4. post your legal strategy in finding your five (5) cases

5. post your outline for the paper

6. post the end notes - i.e. your five cases (or more) for your paper

7. post your final paper

 


Review Legal Notes for assistance with your paper 

 

Law 34 papers: Make sure your papers include at least five (5) court cases (judicial opinions). Papers that do not have at least 5 court cases will receive reduced points on your paper.0 (ZERO) credit. This is a legal research paper requiring you to support your thesis with court cases you find.  
Doing a social science opinion paper - "I believe ... because"  supported by wikipedia information is NOT acceptable. You will need to use the legal search engines to find cases.
Read case citations.


 

 

What your Law 34 papers should look like:

 

1. Title of your Paper

2. Thesis Statement

3. Scope of the Paper

4. Body of your Paper

6. Conclusion

6. End notes - at the end of the paper - which gives your 5 cases and codes and refers back to the numbers in the body of your paper giving, or citing the auhtority.

 

 

format:

1. Length:  sufficient to cover your topic and thesis.

2. At least (5) different cases cited under footnotes - Papers without any court cases receive 0 credit. 

3. Writing must be original, that is "yours", and not "copy and pasted" from elsewhere.

4. Anything you do "copy and paste" must be "between quotes" and must have a footnote, and the webpage, or URL where you got it

 

Sample Paper

 

1. Title of Paper

 

Give a name to your paper

 

"Sellers Beware: Caveat Emptor Under Fire in New York"

 

2. Thesis Statement

 

Stakeout your "claim" - that is give your "interpretation" on the reading and research you have down, and later you will support that with evidence, facts, and argument

 

Recent jurisprudence in New Jersey threatening to abrogate entirely the common-law doctrine of caveat emptor in that state as it applies to the sale of real estate (though the Legislature effected a limited rescue of the doctrine), has raised concerns among builders and sellers of real estate in New York. (For details see box at p. ____) However, a review of recent jurisprudence in New York suggests that courts here are unlikely to go as far in eroding the doctrine as it applies to real estate transactions. On the other hand, a bill that Governor Pataki vetoed in December,1 (“NY Bill”) would have caused substantial confusion about the respective rights and duties of sellers and purchasers, and a potentially significant erosion of the doctrine. Though the NY Bill was vetoed last year (on the last possible day), similar legislation has been proposed in prior years and is likely to come up again.

 

3. Scope of this Paper

 

Tell the reader what you are going to discuss and what you are "not" going to discuss. This then limits your paper to something reasonable.

 

This article will discuss recent jurisprudence in New York to evaluate whether New York courts are as prepared as the New Jersey courts (absent legislative intervention) to impose new disclosure obligations and do away with purchasers’ independent duties to investigate. Next, because a version of the NY Bill is likely to be proposed again, this article will discuss the possibility that the bill would have effected a similar erosion of caveat emptor as the Strawn decision did in New Jersey (before the Legislature intervened). Finally, this article will discuss protective steps to be taken by sellers in light of this still-unfolding history.

 

4. Body of your Research or Legal Writing Paper

 

This is where you provide your interpretation. Any work that is "copied and pasted" must be "placed between quotes", and underlined and then followed by a footnote, eg. 1, 2,3, which appears also at the bottom under footnotes. 

 

NY Courts Still Adhere to Caveat Emptor

New York Courts, like those in New Jersey, have in past decades been re-examining the application of caveat emptor to real estate transactions. However, while recognizing the need for the common law to evolve, New York courts, in sharp contrast to the courts of New Jersey, emphasize their continued adherence to the doctrine. Indeed, the reasoning they employ in adopting new interpretations in particular cases proceeds directly from the core logic of the doctrine itself: the duty of purchasers to exercise reasonable intelligence and use the means available to assess for themselves the nature of the deal. Still, recent decisions suggest the New York courts are prepared to recognize duties of disclosure on the part of sellers previously thought to be precluded by the doctrine1. At the same time, unlike in New Jersey, even when recognizing new disclosure duties on the part of sellers, New York courts adhere unambiguously and steadfastly to the principle that regardless of a seller’s duties, purchasers cannot claim they were induced into a transaction by a seller’s misrepresentation or non-disclosure, where they themselves could have discovered the nature of the deal by conducting reasonable inquiry. However, while this threshold seems plainly greater than the condition recognized by the New Jersey courts (prior to legislative intervention), simply that the relevant facts not be “readily observable” by the purchaser (see box at p. ____), New York courts also find in some cases that the question whether the threshold is met involves questions for the trier of fact. Thus, sellers in many cases are not likely to be spared the expense, delay and risk of a jury trial.

 

New York decisions recognizing the principle that claims can be brought against sellers for “active concealment,” in reality reinforce and rely on the fundamental logic of caveat emptor. For example, in London v. Courduff, the Appellate Division, Second Department, stated that in order to successfully show active concealment, “the plaintiffs must show in effect that the defendants had thwarted their efforts to fulfill their responsibilities fixed by the doctrine of caveat emptor.”2 The court cited the well-settled principle that sellers of real property who deal at arms length are under no duty to speak, absent some act or conduct which deceives the purchaser, and that rather “[the buyer has the duty to satisfy himself as to the quality of his bargain under the doctrine caveat emptor, which in New York State still applies to real estate transactions.”3 Courts continue to apply the rule that a claim for active concealment requires a showing that the seller ffirmatively thwarted the purchaser’s efforts to fulfill her or his duty of investigation.4 However, it should be noted that “active concealment” includes not only physically covering up a defect, but also making “a representation good as far as it goes, but accompanied with such a suppression of facts as to make it convey a misleading impression.”5

 

Similar reliance on the basic logic of caveat emptor is apparent in the most recent Court of Appeals decision to address the continued viability of the doctrine, wherein the Court recognized an implied, common-law “Housing Merchant” warranty of habitability (now superseded by statute).6 While emphasizing the need for evolution in the doctrine, the Court in Caceci v. DiCanio nonetheless limited its holding to cases where the purchaser contracts for the construction and sale of a new home. Crucially, the reason for such limitation is that in such cases, as opposed to cases where the contract is made after the house is constructed, the purchaser has no opportunity to inspect the house for him or herself, because it has yet to be constructed, and so can only rely on the uildervendor to deliver what was bargained for.7 Thus, while recognizing a modification or departure from the traditional rule of caveat emptor, the Court of Appeals did so only to the extent that purchasers could not, by any reasonable degree of diligence, discover the defects for themselves (because the house is yet to be constructed). Once again, the exception proves the rule that where purchasers have the means available to discover facts material to their bargain, it is their duty to do so. The same principle is again reinforced in a recently developed “exception” to caveat emptor which finds support in the decision in Stambovsky v. Ackley.8 According to the purchaser’s allegations in that case, the seller publicized her assertion in the local community that the subject Nyack house was haunted by poltergeists, but failed to disclose the same to the purchaser. The Appellate Division held that the lower court improperly granted the seller’s motion to dismiss the cause of action for rescission, observing:

 

The doctrine of caveat emptor requires that a buyer act prudently to assess the fitness and value of his purchase and operates to bar the purchaser who fails to exercise due care from seeking the equitable remedy of rescission...It should be apparent, however, that the most meticulous inspection and the search would not reveal the presence of poltergeists at the premises or unearth the property’s ghoulish reputation in the community.9

 

However, the court emphasized also the fact that the seller had herself created the condition in question (the house’s local reputation for being haunted).10

 

The Stambovsky decision continues to be law in New York. Subsequent stigmatized property legislation only bars causes of action for non-disclosure of two limited sorts of stigmas: (1) that an existing or prior owner or occupant is or was ever suspected to be infected with the HIV virus or other disease highly unlikely to be transmitted through subsequent occupancy, or (2) that the property is suspected to have been the site of a homicide, suicide or other death or felony.11

 

Moreover, recent decisions have not only reaffirmed the holding in Stambovsky, but have not required that the seller herself created the condition complained of. Instead, they have simply emphasized the requirement that the relevant condition be peculiarly within the seller’s knowledge and not likely to be discovered by a reasonable inquiry by the purchaser.12 The lower court in Haberman v. Greenspan, decided before Stambovsky, had likewise found that a duty to speak arises “where there are circumstances peculiarly or exclusively within the knowledge of one party, materially affecting the property, and he is or should be aware that the other party is dealing with him in ignorance of such factors or on the assumption of some other state of facts.”13

 

Conclusion

 

Give your conclusions here about your paper

 

The protection provided sellers by the doctrine of caveat emptor is not as extensive as it once was. Sellers in New York may be held liable, not only in cases where they engage in affirmative misrepresentation, active concealment, or partial disclosure so misleading as to amount to a misrepresentation, but also in cases where there are no accessible public records or other means readily available to purchasers to discover the facts omitted. However, in circumstances where purchasers can by reasonable investigation discover the facts omitted or allegedly misrepresented, and where sellers do not actively thwart such discovery, the doctrine of caveat emptor still applies in New York to bar such claims. Under such circumstances, well-crafted merger and disclaimer clauses continue to provide significant, additional protection. Governor Pataki’s veto of the New York disclosure Bill prevented, for the moment, a substantial legislative erosion of the common-law doctrine of caveat emptor and a possible erosion of the effectiveness of such merger and disclaimer clauses. However, the likelihood that the Legislature will continue to consider and pass legislation similar to the recently-vetoed bill, leaves room for substantial uncertainty about the future. But given that courts continue to enforce specific merger and disclaimer clauses, and given at least the substantial possibility that they will enforce such clauses, even against statutory claims that may be

 

4. End Notes or Footnotes:

 

Be sure to give the name of the case or code, all cases or codes are underlined, and also provide the website" eg. http://yahoo.com/casename.htm

 

1. PROPERTY CONDITION DISCLOSURE ACT, N.Y. A.B. 1173, 222d Ann. Leg. Sess. (1999)

(vetoed on December 8, 2000, after being sent to the Governor on November 27, 2000).

2. London v. Courduff, 141 A.D.2d 803, 804, 529 N.Y.S.2d 874, 875 (N.Y. App. Div., 2d

Dept. 1988), leave denied, 73 N.Y.2d 809, 537 N.Y.S.2d 494 (N.Y. 1988).

3. Id.

4. See Jee Foo Realty Corp. v. Lemmle, 259 A.D.2d 401, 402, 687 N.Y.S.2d 103, 104 (N.Y.

App. Div., 1st Dept. 1999).

5. Haberman v. Greenspan, 82 Misc.2d 263, 265, 368 N.Y.S.2d 717, 720 (N.Y. Sup. Ct.,

Richmond Co. 1975). See Striker v. Graham Pest Control Co., Inc., 179 A.D.2d 984, 984-85,

578 N.Y.S.2d 719, 720-21 (N.Y. App. Div., 3d Dept. 1992), lv. dismissed, 79 N.Y.2d 1040, 584

N.Y.S.2d 449 (N.Y. 1992).

6. Caceci v. Di Canio Construction Corp., 72 N.Y.2d 52, 530 N.Y.S.2d 771 (N.Y. 1988).

See Fumarelli v. Marsam Development, Inc., 92 N.Y.2d 298, 302, 680 N.Y.S.2d 440, 442 (N.Y.

1998).

7. Caceci, 72 N.Y.2d at 58-59, 530 N.Y.S.2d at 774 (N.Y. 1988).

8. 169 A.D.2d 254, 572 N.Y.S.2d 672 (N.Y. App. Div., 1st Dept. 1991).

9. Id., 169 A.D.2d at 258-59, 572 N.Y.S.2d at 676 (N.Y. App. Div., 1st Dept. 1991).

10. Id., 169 A.D.2d at 259, 572 N.Y.S.2d at 676 (N.Y. App. Div., 1st Dept. 1991).

11. N.Y. REAL PROPERTY LAW § 443-A (1995 N.Y. LAWS CH. 606).

12. See Trustco Bank, N.A. v. Cannon Building of Troy Assoc., 246 A.D.2d 797, 799, 668

N.Y.S.2d 251, 253 (N.Y. App. Div., 3d Dept. 1998).

created by legislation in coming years, sellers of previously occupied housing (i.e., those covered

by the proposed NY Bill) should continue including such clauses in their contracts as should

builders/developers of new housing.

 

updated: 6/27/19

 

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