Guidelines For Individual Executors And Trustees

Constitution

Describe about the Guidelines for Individual Executors & Trustees?

Activity 16:

The main issue to be decided in this case was that whether the President was authorized to make a law for seizure of private property in the absence of express authority by congress or the provision of the American constitution.(Lee, T.R. 1999)

The facts of the case are that the President made a rule for seizure of all the steel mills for public use. The secretary of commerce was ordered by the president to seize all the steel mills after there was unrest in the labor of steel industrious.

RULE:

Article 2 of the American constitution provides for the executive branch of the government. As per the article 2 of the constitution the executive power of the federal is vested in the President. Section 2 of article 2 provides for presidential powers, whereas, the section 3 of article 2 provides for the responsibilities of the president. (Saikowski, C. 1987) Section 3 of article 2 provides that the president is responsible for giving information to the congress about the state of the union and to make recommendations which the president thinks necessary. The president is also responsible for to take care of the faithful execution of the law.?(Stack, K.M. 2009)

ANALYSIS:

The presidential order to take over and operate the steel mills was not based on any statute, but was based on national emergency due to possibility of strike in an industry playing an important part in defense production during the Korean War. (Hicks, D.B. 1996)

In this case the majority of judges favored the arguments that without the existence of a statute and authorization from the congress, the president cannot pass an order for seizure of private property. The argument was given that lawmaking is a function of the congress, which is vested in congress and not in the office of the President. The power of the president to issue an order must be authorized either by Congress or the constitution itself. It is also stated that the procedure used for seizure of industry procedure to solve labor disputes was unauthorized not only by a statute, but also before this dispute in the year 1947 an amendment was rejected by congress which would have given consent for such governmental seizures.

The dissenting justices said that these powers of seizure by the president are extraordinary powers which are exercised in extraordinary times like War. They were of the view that this shall leave the president powerless in those times when he needs it.

CONCLUSION:

The steel companies were successful in obtaining an injunction at the district court level, which was later stayed by the court of appeals. The judges with a majority dismissed the appeal of the defendant and stayed the injunction on the order of the president restraining the seizure of steel mills in the absence of express authority of the Congress and the American constitution.

The dissenting judges stated that the president used his extraordinary powers in extraordinary circumstances and this order shall leave the president powerless in the situations when he needs the power.

Presidential Power

The decision in the case Curtiss-Wright Export Corp would have been the same even if the acts of the president were not authorized by the Congress. As it was a case in which supremacy of the Executive branch of the government and governmental regulation of business were involved. Justice Sutherland wrote in his opinion of the Court: It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations–a power which does not require as a basis for its exercise an act of Congress.(Curtiss-Wright Corp, USA, 2013)

It is said that t in the United States the government is based on Federalism. Federalism is a principle of government that defines the relationship between the central government and state government. In the United States of America it is a Federal government. There is a central government at the national level and the states have their own governments at the regional level. (Béland, D. & Lecours, A. 2014)

Separation of powers is a political doctrine by which powers are divided among the different organs of the Government such as the legislature, the executive and the Judiciary. In U.S the legislative powers are vested with the congress and Congress can make laws. The executive power to enforce and implement the laws is vested in the President and the Judiciary is vested with the power to adjudicate on the matters of dispute.(Chang, K.H. 2001)

The source of presidential power of the president of the United States of America is the Constitution of America. It is the constitution which gives all the powers to the president. Additionally, it can also be said that its people who give the president power through the electoral process.(Conley, R.S. 2007)

There are two procedures in domestic law through which the United States can become a party to an international agreement. First are the international agreements which come to force with the consent of 2/3^rd members of the senate under article II section 2 clause 2 of the constitution are treaties. International agreements which are brought into force on constitutional basis other than the consent of the senate are international agreements other than treaties which are also called Executive agreements.(Larkins, E.R. 1997)
The decision in the case of Plessy V Ferguson was correct as per the purpose of the fourteenth amendment. As Justice William Strong stated in case of Strauder V West Virginia that the object of the fourteenth amendment was to prevent any kind of legislation which is racial discriminatory.  In Brown V Board of Education the decision of Plessy V Ferguson was overturned which allowed state sponsored segregation. In this case the court declared state laws establishing separate schools for white and blacks as unconstitutional. So the elements of understanding of fourteenth amendment were different in this case. The element of equal but separate was rejected in this case. (Calabresi, S.G. & Agudo, S.E. 2008)

Doctrine of State action is the legal concept in America which provides that the protections of the constitution provided by the first and fourteenth amendment are against the power of the state against the individual but not against the coercive power of the individual. Thus, private discrimination does not become actionable under the fourteenth amendment. (Ake, A.K. 2006)

(a) The primary responsibility of desegregating the schools as per the orders of the Supreme Court in case of Brown V Board of Education is on the local state government. (McKinley, M. 2011)

(b) the practical problems before a court in deciding the school district integration speed was Desegregation Busing which is a Practice of  transporting students to schools in a manner as to redress prior racial segregation of schools, or to overcome the effects of residential segregation on local school .

International Agreements

In  the  Episode 14 of the Season 1 of The West Wing titled “Take This Sabbath Day”, it is shown that the Supreme Court denies the writ of Certiorari and hence refuses to stay the execution of a prisoner, who has been convicted of murder of two drug kingpins (HubPages, 2015). In this scenario, president Bartlet has to take a decision regarding the commutation of sentence within 48 hours. It is related to the constitutional law of Certiorary. Under this writ, the supreme court has the power to issue directions for the judicial review of the lower court’s decision for the existence of legal error and only when the option of appeal is not available (Uscourts.gov, 2015).

Bush v. Gore

Issues:

In this case the court had to decide mainly two issues to resolve the case. The first issue was that whether the constitutionality of conducting the recounts. The second was that if the recounts are unconstitutional what the remedy is. This case resolved the dispute surrounding the 2000 presidential elections in United Stats. The court had primarily stopped a recount the court had to decide whether to restart it. (Hasen, R.L. 2007)

Rule

The equal protection clause of fourteenth amendment and Article 2 sections 1 clause 2 of the constitution of United States provides that each state legislature will decide how the electors to the Electoral College will be selected. If there is a margin of less than one half of a percent an automatic machine recount is conducted under floridal election code.

Analysis: 

It was argued by both the parties that the recounts in Florida violated the equal protection clause of the fourteenth amendment. The state wise standard that each county board to determine whether a given ballot was a legal vote was not present.( Geyerman, G. & Suggs, D. 2004)

Conclusion:

It was decided by a majority of five judges that the equal protection clause of the fourteenth amendment had been violated by adopting different standards of counting in different counties.

The equal protection clause is a part of fourteenth amendment of constitution of United States. It provides that no person shall be denied by  any state within its jurisdiction the equal protection of laws which includes right to vote. The equal protection clause provides equal rights to vote to be provided.

(a) The school assignment is based on individualized racial classifications to achieve diversity or avoid racial isolation through student assignment.

(b) The fundamental right of equality is involved in this case.

(c) If this case was to be heard by the Supreme Court it would have applied the affirmative test.

In Bush v Gore the court found the recount to violate the equal protection clause because different standards were adopted by the states for counting.

On May 17, 1999, the case of Saenz v. Roe 119S. Ct. 1518 (1999) was decided and a new chapter  began in the Constitutional law. In this case, the court condemned the requirement of residency of 1 year duration, provided by the California welfare statute. The decision in this case was based on the immunities or privileges clause of the 14^th amendment of the Constitution. The supreme court held that although the word travel does not exist in the constitution, but it is a constitutional right and held that the new residents, who want to become permanent residents had the right to travel and it included the right for equal treatment with the other citizens of that state.

Substantive due process provides a limitation on the kinds of laws, which can be enacted by the government and prohibits it from making laws, which interfere with the right to life, liberty and property. While procedural due process provides a limitation on those procedures, which are adopted by the government while depriving a person of life, liberty and property, means prohibited the government from taking away such right.

The difference between the taking and forfeiture is that the government may take away the assets of the criminal, even if an arrest or conviction may not have taken place. In forfeiture, the government takes away the property because of the fact that property itself was involved in an illegal act and is directed against the property and not the person possessing that property.

Doctrine of State Action

The contract clause contains a prohibition on the state from making any laws, which may interfere with the fulfillment of the obligations of the contract. However, this part of the constitution is not absolute and in certain circumstances, the police powers of a state are used by the state for enacting such laws, which may interfere with the fulfillment of contractual obligations. Thus, the state’s police powers may affect the contract clause.

Practical Problem:

Appraisers are also called “property valuers”. Everyone has e right to receive a fair market value for his property. The term, market value refers to the most feasible price, which a seller should get for his property, if it is brought in an open market with all the conditions required for a fair sale and with the purchaser and seller acting wisely and honestly. This value is determined by the appraisers (Murphy, 2010). The appraiser should be highly qualified and experienced. Either a real estate professional, who is experienced in the real estate business and has essentially acquired a certificate or license in this field can be hired for the purpose in the given case. He must have undergone an appraisal methodology (Reuters, 2014). Or any other appraiser, who fits into the standards specified in  Uniform Standards of Professional Appraisal Practice and qualifies the licensing criteria defined by the Appraisal Qualifications Board. Thus, he should be state licensed as well as certified.

Activity 16:

Case problem 3: In this case the type of easement involved is Easement by necessity. As in this case Carol claims a right of easement over her land for providing access from the public street. In this case Carol has a valid claim because most of the states give landowners who are not connected to a public road the right to apply for granting a private way over connecting lands. Carol will be successful in her claim for right of easement.(Easement and License. Parol License Irrevocable by Execution. Easement by “Estoppel by Deed”, 1919)

Case Problem 4: In this case Carol can sue David for trespass over her property. As the driveway easement had expired six months ago but David continued to use the driveway. As per law the easement terminates after expiration of the term. On expiration person cannot claim the right to easement. (Orth, J.V. 2006)

Judgment lien is a ruling of the court which gives the creditor a right to take possession of the real property of the debtor if the debtor fails to fulfill the obligations of the contract. Judgment lien may be made against individual or business and it allows the creditor to access the business of the debtor. A real property owner should be concerned about it because once the court has determined matter of non payment and validity of the contract the court shall order judgment lien in favor of the creditor to recover the debt. (Wesoloski, E. 2014)

the four ways in which an easement can be created are as hereunder:

Express easement

Implied easement

Easement by way of necessity

Easement by prescription

Easement by necessity is a right where the owner of land has no access to the public road hen he has a right to apply for grant of a private way or a easement over connecting lands. The easement of prescription requires use of land to be open ad undisputed from a specified period of time. Prescription is title by authority of law which derives its force from use of the land and the time.(Calvanico, J.J. 2007)

The easement can be terminated by way of merger. An easement is automatically terminated if at any point of time the same person becomes the owner of both the dominant and the servient tenements.(Conard, A.1942)
The preparation of real estate contract requires a very careful attention because the purchaser and the seller of the real property both have number of issues and concerns which are required to be addressed. The paralegal who prepares the sale purchase agreement must be aware of all these issues in general and may ask his clients about including any special or specific issue in the agreement.

The time of essence clause in a real estate contract means that one party to the contract must perform the obligations of the contract at the date specified in the contract in order to compel the other party to perform their part of the contract.(Stannard, J.E. 2005)

When a title is known as a marketable title it means that the history of ownership about that property is clear and there is no dispute or defect regarding the ownership. As a result, they can be marketed without any additional effort. On the other hand the insurable title may have a known defect and it is agreed by an insurance company to provide insurance against such defects.(Spencer Compton, ,S.H. 2003)

In most of the real property contracts it is provided about the possession of the property that the purchaser will take possession of the property after the payment of the full and final amount of consideration as agreed in the contract.

The closing date is important in the real estate because on this date the ownership of the property transferred to the buyer and the deed is signed over to the buyer.
The provisions of the said real estate contract are in favor of the seller as it provides that according to contract seller shall transfer insurable title to the buyer an shall transfer all utility easements an restrictions with it.(Fink, J. 1994)

In this case the buyers had the knowledge of the fact that the house they are going to buy is very old and might leak. They should have included this fact in the terms of the contract. The Harold and Maude cannot prove the oral statement as a misstatement. The buyers Harold and Maude cannot succeed in an action against Sam because the agreement expressly says that no warranty which is not expressly included in the agreement shall not be entertained.

Practical problem 2:

A copy of a contract for sale of residential real estate from a local real estate broker  and the one given in Exhibit 7-1 are similar in the sense that both contain the buyer and seller name at the beginning of the contract and then the 2nd and 3^rd parts are also similar. Both contain the details of the property in question and the purchase price and mode of payment respectively. However, the next part differs. The exhibit 7-1 contains the information about the  types of loan, which is missing in the local contract. Then the details of earnest money are in both, but Exhibit contains a more detailed form of it. Closing, title and possession details are similar. But, the termite letter is missing in the local contract. Details of agency and brokerage is again more detailed in Exhibit.  The notices heading is also missing in the local one. Rest all the things are similar in both.

Practical problem 4:

As mentioned in the § 10-12-3 of The Uniform Electronic Transactions Act, adopted by Georgia, which came into effect from 1 July, 2009 (Appendix 1), electronic signatures are recognized on real estate documents (J. Piercy, 2015). However, there are certain limitations to it, as specified by subsection (b) of this section, which is: such signatures are not recognized for a transaction, if  it is governed by:

(1) A law, which governs the creation and execution of codicils, wills  or testamentary trusts (Justia Law, 2015);

(2) Title 11 except the Code Sections 11-1-107 and 11-1-206, Article 2, and Article 2A; or

(3) The Uniform Computer Information Transactions Act (Lexisnexis.com, 2014).

(a) Brokerage commission in this sale is 1% of the purchase price and it will be completely paid by the seller.

(b) Wearever Life Assurance Company, will be the holder of the real estate note and the deed to secure debt that is going to be assumed by the purchaser in connection with this transaction.

(c) My Town, Great County, State is the name of the property sold in this sale.

(d) The seller must obtain 85% of the tenant estoppels.

(e) The purchaser is willing to consent to new leases on the property only subject to terms: base rental should be $ 16 per square foot and common area maintenance charges should be $1.75.

(f) 54,520 net rentable square feet are contained in this agreement.

(g)  The closing of this transaction will take place at the offices of Purchaser’s attorneys,    Winkom, Blinkholm and Nodd, 1400 Crabtree Place Tower, My Town, State, or any other such location, which will be mutually agreeable to purchaser as well as seller.

(h) The amount of gross rental income from the property, which the seller guarantees are $850,000.00.

(i) Quarterly basis.

(j) Saturday is not a business day.

(k) $75,000.00

(l) The Effective Date shall be the last date on which, either the Purchaser or Seller will  have executed this Agreement.

(m) Quitclaim deed.

(n) At closing.

(o) The only remedy which seller will have is that the whole deposit will be paid to him in the form of full liquidated damages.

(p) Yes, the purchaser can do so.

(q) Yes, if the amount is anything less than $25,000, the purchaser can terminate the agreement.

(r) Interest bearing.

(s) Ticor Title Insurance Company of California or Chicago.

(t) October 1.

(u) No.

(v) Half by purchaser and half by seller.

(w) Shall be terminated and release will be obtained with respect to them.

(x) Seller will have till delivery.

(y) A credit will be paid to the purchaser for security deposits under lease.

(a) Specific performance of contract, (b) rescission, (c) money damages or (d) liquidated damages.

Contract with partnerships must be carefully examined so as to determine the actual authority, which the partners have, in case less than the total number of partners negotiate and sign the contract. Moreover, in limited partnerships, the authority of partners is limited. In case of executors, they have only limited power to enter into real estate contracts, which is provided to them by the state law along with the will. So, it is essential to look into the state law as well as the will, to know the actual powers executors have (Americanbar.org, 2015). Similarly, it’s important to examine carefully the contracts entered into trustees, because they too have powers limited to the extent provided by the state law and the trust instrument.

A real estate broker is entitled to a commission if he gets successful in finding a person who wishes and is capable of purchasing the real estate property at that price an those conditions, which have been provided by the seller in the listing agreement (Grieco, 2015).

The remedy of specific performance is the most desirable because this remedy, the party in default is ordered by the court to perform the contract as was agreed and hence the purchaser gets what was initially bargained for in under the contract (Carey, S.A., Guggenheim, D.B. And Soejoto, M.D., 2013).

Case problem 1:

The money damages is the difference between the contract price and the property’s market value, which is at the time of default. In the given problem, the contract price is: $1,75,000 and the market value is: $190,000. Thus, applying the rule to calculate the money damages, it will be equivalent to: $190,000-$1,75,000= $1,5000.

Case problem 4:

The rules for the commission of broker imply that a broker earns commission as soon as he presents a person, who fits into the requirements of the listing agreement of the seller. Even if the seller refuses the offer of a purchaser or even if they both go to contract but the contract is not closed due to some reason, the broker is still entitled to a commission (Callahan, D.G., 2006. Hence, in the present case, Honest Broker becomes entitled to a commission as soon as he introduces I.M. Rich to Alice SkinFlint, irrespective of the fact that the deed closed after the expiration of the date specified by SkinFlint in the listing agreement.

Practical problem 4:

Yes, a broker can become a dual agent, meaning thereby an agent both for the seller and the purchaser in the transaction of the same real estate. A dual agent must disclose to both the buyer and the seller that he is acting as such and should also disclose the probable effects of him acting as a dual agent. He must also obtain a written consent for such relationship from both the parties on a form, as given in Appendix 2.

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