Chapter 1 An Introduction to Law

Chapter 1 -An Introduction to Law I. Law and the Real Estate Profession  The law has a tremendous impact on the work of a real estate agent  The Real Estate profession itself is strictly regulated  Laws prescribe the agent’s qualifications and his or her duties to clients, customers, and employees  Avoiding liability is one of the most compelling reasons to learn about the law II. The Nature and Functions of Law  The LAW is a system of rights and duties established and enforced by a government  MORALITY and EFFICIENCY are forces that shape the law III. Historical Background A. English Foundation  Common Law – is the body of law derived from judicial decisions rather than from statutes or constitutions B. Spanish Influence in California  Treaty of Guadalupe Hidalgo (1848)– all public lands belonging to the Mexican government in California became public lands belonging to the U.S. Government IV. Legal Categories and Concepts A. Substantive Law and Procedural Law   Substantive Law – establishes and defines rights and duties Procedural Law – sets out the methods of enforcing substantive rights B. Criminal Law and Civil Law  The remedy granted is usually a monetary award called Damages IV. Legal Categories and Concepts (cont.) C. Basic Civil Law Concepts  Contracts  Torts  Property Law Example: V. Sources of Law (1) A. Constitutions – a grant of power to a government 1. Federal   2. Power of the Federal and State Governments Protection of Individual Rights California State Constitution V. Sources of Law (2) B. Legislatures: Statutory Law 1. Legislative Process 2. Codification – – a proposed law is called a BILL the process that occurs when legislature gathers up all the laws on a particular subject, reconciles and clarifies them, then sets them out systematically in a comprehensive compendium called a CODE V. Sources of Law (3) C. County, City, and Local Law  The State of California grants cities and counties the ability to administer their own government on the local level  ORDINANCES–  MUNICIPALITY – is created through a government laws passed by a city or county supervisors and are equivalent to California state statutes corporation to enact ordinances V. Sources of Law D. Courts: Case Law 1. Dispute Resolution and Lawmaking 2. Stare Decisis and Precedent      Binding Jurisdiction Hierarchy Opinion Distinguished (4) V. Sources of Law E. Administrative Agencies : Regulations 1. Rule Making 2. Adjudication and Enforcement F. Interaction of Laws 1. Judicial Review 2. Statutory Construction (5) VI. The Judicial System (1) A. Trial Courts and Appellate Courts   TRIAL – original jurisdiction APPEAL – appellate jurisdiction   trial record exhibit 1. Questions of Fact and Questions of Law a. b. c. Prejudicial Error and Harmless Error The Appellate Decision Supreme Court Review by Petition VI. The Judicial System B. State Courts and Federal Courts   subject matter jurisdiction court of general jurisdiction (2) 1. California State Court System a. Trial/Superior Courts b. California Court of Appeal c. California Supreme Court 2. Federal Court System (1) Federal Court System a. Specialized Courts    U.S. Tax Court Federal Circuit Court U.S. Bankruptcy Courts b. United States District Courts (2) Federal Court System (3) c. United States Court of Appeals    There is a federal Court of Appeals for each of 11 numbered circuits California is in the 9th circuit There are 49 judges on the 9th circuit d. United States Supreme Court  The U.S. Supreme Court is made up of the Chief Justice and Eight Associate Justices VI. The Judicial System (3) C. Relationship of the Federal and State Courts 1. 2. Exclusive Jurisdiction Concurrent Jurisdiction  Choosing Between Federal and State Court D. Limitations on Adjudication 1. 2. 3. Case or Controversy Requirement Statute of Limitations DECLARATORY RELIEF – the court Res Judicata will let the parties know in advance what their duties under a contract are QUIET TITLE ACTION – is an example of declaratory relief VII. A Civil Lawsuit A. The Dispute: Prefiling B. Filing the Lawsuit 1. 2. 3. 4. Choosing a Court Personal Jurisdiction Jurisdiction Over Property The Defendant’s Answer C. Pretrial Discovery D. Pretrial -Settlement Negotiations 1. 2. Jury or Judge Choosing the Jury VII. A Civil Lawsuit E. The Trial F. Post Trial 1. 2. Appeal Collecting a Judgment a. b. Judgment Liens Garnishment (cont.)