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  1. #11
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    Default Re: Followup Thought I Purchased a Townhome with a Detached Garage

    by the way, is COMMON LAW and CASE LAW the same thing? can anyone search case law or do you have to be a licensed lawyer who has exclusive access to some database.

    by the way, I would only be looking at STATE SUPREME COURT CASES RIGHT? real estate transactions are governed at the state level so I am assuming any case related to this issue that was tried in the state supreme court is something I would want to look at right?

  2. #12
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    Default Re: Followup Thought I Purchased a Townhome with a Detached Garage

    Quote Quoting bray1970
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    by the way, is COMMON LAW and CASE LAW the same thing? can anyone search case law or do you have to be a licensed lawyer who has exclusive access to some database.
    Common law and case law are two completely different things. It is case law that you need to search. There are paid case law databases that are only available to subscribers and may be limited to attorneys only. However there are plenty of other ways to search case law. State with your state appellate and supreme court websites.

    by the way, I would only be looking at STATE SUPREME COURT CASES RIGHT? real estate transactions are governed at the state level so I am assuming any case related to this issue that was tried in the state supreme court is something I would want to look at right?
    No, you would want to look at both appellate cases and supreme court cases. Not all cases go all the way to the supreme court. If you find something at the appellate level however it would be wise to check and see if it went to the supreme court, in case the appellate decision got reversed.

  3. #13
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    Default Re: Followup Thought I Purchased a Townhome with a Detached Garage

    Quote Quoting llworking
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    Common law and case law are two completely different things. It is case law that you need to search. There are paid case law databases that are only available to subscribers and may be limited to attorneys only. However there are plenty of other ways to search case law. State with your state appellate and supreme court websites.



    No, you would want to look at both appellate cases and supreme court cases. Not all cases go all the way to the supreme court. If you find something at the appellate level however it would be wise to check and see if it went to the supreme court, in case the appellate decision got reversed.
    I disagree with you. Common law is that law that is handed down by the courts that is not governed by statute or laws past by the government either state or federal. It is the law that has controlled for centuries.

    If an appeal case is based on common law then how the courts interpret that law becomes a president as to how future cases are decided. So common law is decided by the appellate court and can be affirmed or reversed by a supreme court of a state or the federal court.

    Common law and case law are not two different things.

  4. #14
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    Default Re: Followup Thought I Purchased a Townhome with a Detached Garage

    Quote Quoting budwad
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    I disagree with you. Common law is that law that is handed down by the courts that is not governed by statute or laws past by the government either state or federal. It is the law that has controlled for centuries.

    If an appeal case is based on common law then how the courts interpret that law becomes a president as to how future cases are decided. So common law is decided by the appellate court and can be affirmed or reversed by a supreme court of a state or the federal court.

    Common law and case law are not two different things.

    You cannot "search" common law. A decision might be made based on common law, but that decision, if published, becomes case law. Therefore again, common law is completely different than case law, just like statutes are completely different than case law. Case law is published decisions handed down by the higher courts, no matter what kind of law was used to decide the cases.

  5. #15
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    Default Re: Followup Thought I Purchased a Townhome with a Detached Garage

    thanks for the clarification. I will be breaking this down with a real estate attorney on monday.

    oh, one thing I don't know the realtors can get this original real estate contract. so they may show up in court presenting what they know to the judge but
    not having the actual real estate contract. they were not a party in that contract (only the developer and the first townhome purchaser was). I don't know that the developer would give them a copy. the realtors were pointing all the blame for all this to the developer. and the realtors accepted no blame and the developer hinted several times that they should of caught this error. the realtors would probably have to go to the first townhome owner to get the original contract. he could request it from the title company and they would be required to give it to him (since he was a party to the contract). but the last I heard, the realtors had tried to get him to get the contract but he hadn't gotten around to doing it. he may know the realtors are in a bit of a bind and unless they offering him something nice in return he won't be getting them an copy of the first real estate contract from 2009.

    but if they do show up in court with that contract, I hope it doesn't complicate things.


    I have heard small claims court judges issue a ruling right when the case ends. is there a chance he/she WOULDN'T even check case law on this issue?
    or would he/she be expected to already be aware of any case law related to my case?

    I live in a small city so the court only meets one day a week. and the small claims portion of the court only meets one day every other month.

    so I am not sure if this will be a real judge or just a lawyer masquerading as a judge.

  6. #16
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    Default Re: Followup Thought I Purchased a Townhome with a Detached Garage

    Quote Quoting llworking
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    You cannot "search" common law. A decision might be made based on common law, but that decision, if published, becomes case law. Therefore again, common law is completely different than case law, just like statutes are completely different than case law. Case law is published decisions handed down by the higher courts, no matter what kind of law was used to decide the cases.
    Once again you want to make an argument based on semantics. You go full circle saying that common law becomes case law if it is published. What if it isn't published? Case law is a complication of all the cases that are published or not whether they are interpreting statutes or established common law. So case law may be about common law or about statutes or about court proceedings or about the constitutional interpretation of a law. They are all case law.

    Quote Quoting llworking
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    You cannot "search" common law..
    Searching common law is the same as searching case law. You can search the case law or you can search common law (based on case law) in the Restatement of Law publication.

    Restatements are highly regarded distillations of common law. They are prepared by the American Law Institute (ALI), a prestigious organization comprising judges, professors, and lawyers. ... In essence, they restate existing common law into a series of principles or rules
    The courts often refer to the Restatements.

    Case Law, often used interchangeably with the term Common Law, refers to the precedents and authority set by previous court rulings, judicial decisions and administrative legal findings or rulings. This is one of the main categories of law, with constitutional law, statutory law and regulatory law.

    Although statutory laws, created by legislative bodies in concurrence with constitutional law, strive to provide overall direction, guidance and rules for society at large, it is impossible to deal with all situations, legal issues and questions by this manner alone. Our judicial bodies are tasked with interpreting law and in doing so, often set precedent where statutory, regulatory and even constitutional law is vague, unclear or silent. All of these precedents make up case law.

    Stare decisis is the doctrine of precedent. It is the abbreviation of the full Latin phrase stare decisis et non quieta mvere", of which the literal translation is "to stand by decided matters and not to disturb settled matters". This means that a court will rule according to a previously established decision or finding. Although this does not always hold true, it is very difficult to obtain a ruling against precedent, and generally involves appellate courts. Additionally, legislatively created statutes may be enacted which overrule precedent. The decision cited for precedent must be from a court higher than the one hearing the current case. And in fact, case law is most often established by appellate courts.

    Case law is generally very jurisdiction-specific. For example, a case in California would typically not be overseen and decided using precedent set in Maine. Instead, previous California rulings on the issue would be reviewed to determine interpretation of the law or issue, allowing a party to cite "binding precedent". If no such previous rulings exist, one may offer precedent from a different jurisdiction, but rather than binding, this would merely be "persuasive authority". There are also other factors in play which affect the binding authority of a specific case in common law, such as how old the decision is and how closely the material facts match in both cases.

    Copyright HG.org
    https://www.hg.org/case-law.html

    If you were to actually read case law you may understand how the courts reason a decision based on Stare decisis or how they reason to set new precedence which becomes the new common law.

    Quote Quoting bray1970
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    thanks for the clarification. I will be breaking this down with a real estate attorney on monday.

    oh, one thing I don't know the realtors can get this original real estate contract. so they may show up in court presenting what they know to the judge but
    not having the actual real estate contract. they were not a party in that contract (only the developer and the first townhome purchaser was). I don't know that the developer would give them a copy. the realtors were pointing all the blame for all this to the developer. and the realtors accepted no blame and the developer hinted several times that they should of caught this error. the realtors would probably have to go to the first townhome owner to get the original contract. he could request it from the title company and they would be required to give it to him (since he was a party to the contract). but the last I heard, the realtors had tried to get him to get the contract but he hadn't gotten around to doing it. he may know the realtors are in a bit of a bind and unless they offering him something nice in return he won't be getting them an copy of the first real estate contract from 2009.

    but if they do show up in court with that contract, I hope it doesn't complicate things.


    I have heard small claims court judges issue a ruling right when the case ends. is there a chance he/she WOULDN'T even check case law on this issue?
    or would he/she be expected to already be aware of any case law related to my case?

    I live in a small city so the court only meets one day a week. and the small claims portion of the court only meets one day every other month.

    so I am not sure if this will be a real judge or just a lawyer masquerading as a judge.
    You are claiming that you own a garage bought and paid for in your sales contract and you are talking about an attorney and small claims court? That doesn't make much sense. In the first place attorneys are not allowed in small claims courts. And second, how much are you suing for.

  7. #17
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    Default Re: Followup Thought I Purchased a Townhome with a Detached Garage

    Quote Quoting budwad
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    I have to disagree with you that the seller's agent has no duty to the buyer.

    The OP (as far as I have looked) did not tell us what state this is happening in. But a case law search of all the states finds many cases where there is a duty of the seller's broker to investigate that the information on the listing is correct.
    California is a famously liberal state, and does go a bit farther in finding silence as a form of fraud or misrepresentation than other states. But even the California cases do not say that the seller's broker has to ensure the advertising listing is accurate. The duty to disclose is to an interested buyer, i.e. that the disclosure needs to be made before they get to executing the contract, not that it must be in the listing. However, if the listing is actually incorrect and the seller's broker knows it, that is more likely to create a duty to correct the bad information in the listing. But I agree with you that the exact state matters, as does what the actual contract says and what representations the seller and his/her agent made in the course of the negotiations in this deal. The OP has consulted lawyers in his/her state, who presumably have access to that information and thus are in a much better position to advise the OP, so that is what the OP ought to be relying upon.

    Quote Quoting bray1970
    View Post
    by the way, is COMMON LAW and CASE LAW the same thing? can anyone search case law or do you have to be a licensed lawyer who has exclusive access to some database.
    For your purposes you can think of the common law and case law as pretty much the same thing: both essentially refer to the law that comes from court cases rather than from laws passed by a legislature or rules/regulations issued by a government agency. Anyone can research it, though free online searches, particularly using Google, tend to be a bit hit or miss as the searching systems are not as sophisticated as the systems lawyers pay a lot for, and the databases are often not as a complete as those found in the services that lawyers use. You can sign up for those services, too; you don't have to be a lawyer. It just can get very expensive, especially if you don't know how to use them effectively. You can also go to a public law library, if you have one near you, for help researching cases.

    Quote Quoting bray1970
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    by the way, I would only be looking at STATE SUPREME COURT CASES RIGHT? real estate transactions are governed at the state level so I am assuming any case related to this issue that was tried in the state supreme court is something I would want to look at right?
    You'd be looking at state court cases, but not just the cases from your Supreme Court unless the Supreme Court is the only appellate court in your state. But most states have at least one level of intermediate appellate courts, and those decisions are important too. The Supreme Courts of most states only a select a fraction of the total appeals that are requested of them. So you are more likely to find cases on point in the lower appellate courts. Of course, if you can find one on point from the Supreme Court then those are the best cases as they take priority over decisions of the lower courts.

  8. #18
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    Default Re: Followup Thought I Purchased a Townhome with a Detached Garage

    Like button.

  9. #19
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    Default Re: Followup Thought I Purchased a Townhome with a Detached Garage

    Quote Quoting budwad
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    In the first place attorneys are not allowed in small claims courts.
    Again, the state matters. In some states, lawyers are allowed in small claims court.

    Quote Quoting budwad
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    Like button.
    Now you're getting in the spirit of it.

  10. #20
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    Default Re: Followup Thought I Purchased a Townhome with a Detached Garage

    I could just ride your coat tails now and be as smart as you. How convenient. Saves a lot of time and keystrokes. You do the work and I'll take the credit.

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