Music: Al Stewart, Time Passages (1978)

1. LUNCHES Meet Today Here @ 12:35 Flood*Gottfried*E.Horowitz House*Ivey*Nagele (+1?) Tomorrow on Brix @ 12:25 Cain*Carlo*Jesson*Mantel Weisman (+2?) Rev. Prob. 5A: §I Eagles: Capacity Lugo*Carlo*Meyers Gonzalez Alts:Glibowski/Steskal Falcons: Undue Infl Weisman*Susson Donohoe*Eisenband Alts:Jesson/Hamner Music: Al Stewart, Time Passages (1978)

2. LUNCHES Meet Today Here @ 12:35 Flood*Gottfried*E.Horowitz House*Ivey*Nagele (+1?) Tomorrow on Brix @ 12:25 Cain*Carlo*Jesson*Mantel Weisman (+2?) Rev. Prob. 5A: §J Eagles: Capacity O’Connell*Langan Eble*Alman Alts:TuckerManGini Falcons: Undue Infl Gottfried*Goggin Perez*McCardle Alts:Kempf/Schillinger Music: Al Stewart, Time Passages (1978)

3. REVIEW PROBLEM 5A: OWLS CRITIQUE DUE WED 3/3 @ 11 am • §I: Do Capacity Issues • §J: Do Undue Influence Issues • Instead of Identifying “Arguments” • Example of Legal Research You Liked • Example of Legal Research You Didn’t Like • Example of Factual Research You Liked • Example of Factual Research You Didn’t Like • Example of Either You Didn’t Hear • For each, briefly explain why useful (or not)

4. REVIEW PROBLEM 5A:CAPACITY ISSUES: EAGLES • Legal Research? • Factual Research?

5. REVIEW PROBLEM 5A:UNDUE INFLUENCE: FALCONS • Legal Research? • Factual Research?

6. UNDUE INFLUENCE:DIFFICULTY DETERMINING Florida Definition (by a beneficiary or on a beneficiary's behalf): a. "fear, overpersuasion, duress, force or coercion to the extent of destroying the free agency and will power of the testator and must be operative on the mind of the testator at the time the will is executed." b. BUT "influence, consisting of appeals, requests, entreaties, arguments, flattery, cajolery, persuasion, solicitations or even importunity, is legitimate" as long as doesn't destroy free agency of testator.”

7. UNDUE INFLUENCE:DIFFICULTY DETERMINING Hard to distinguish “due” from “undue” infl.: • Webb: Kindness OK • Often Sole Caretaker v. Other/Closer Family • Can be difficult to distinguish gratitude from yielding to unfair means of persuasion

8. UNDUE INFLUENCE:REVIEW PROBLEM 5C Lot of Evidence of Undue Influence • Dr. K in Confidential Relationship w VZ • Participated in Drafting & Beneficiary • Presumption of Undue Infl. in some Jurisds. • Actually “translated” VZ statements to Atty • VZ weakened condition

9. UNDUE INFLUENCE:REVIEW PROBLEM 5C Qs that Might Affect Result • Length of Relationship betw Dr K & VZ? • VZ Relationship with Family Members? • VZ able to correct “translation”? • Her lawyer or his? • Value of Tapes v. Rest of Estate?

10. UNDUE INFLUENCE:REVIEW PROBLEM 5D Evidence of Undue Influence • J in Confidential Relationship w Testator • Beneficiary • BUT turned Over Drafting to B when T insisted on including J as beneficiary Why Might That Not Help J?

11. UNDUE INFLUENCE:REVIEW PROBLEM 5D Evidence of Undue Influence • J in Confidential Relationship w Testator • Beneficiary • BUT turned Over Drafting to B when T insisted on including J as beneficiary Why Might That Not Help J? • B is Junior Associate & J is Partner; Maybe not sufficiently independent to defeat presumption

12. UNDUE INFLUENCE:REVIEW PROBLEM 5D Evidence of Undue Influence • J in Confidential Relationship w Testator • Beneficiary • Turned Over Drafting to (Junior Associate) B when T insisted on including J as beneficiary Lots of Evidence Ag. Undue Influence • Leave for you

13. CLOSING UP UNDUE INFLUENCE & CAPACITY • Both doctrines subject to manipulation by courts • By definition in these cases, formalities met, yet court can throw out will • Strong family bias, even where no real sense of family as in Strittmater

14. CLOSING UP UNDUE INFLUENCE & CAPACITY Court Subject to Cultural Biases Webb maybe different result if: • he is 23, not 46 • both men or both women • relatives less nasty • less evidence of her independent life/mind to counter stereotype of “little old lady”

15. CLOSING UP UNDUE INFLUENCE & CAPACITY Court Subject to Cultural Biases Strittmater maybe different result if: • Gift to Libertarian Party or mainstream party opposed by her parents • Specific evidence of bad behavior by parents

16. CLOSING UP UNDUE INFLUENCE & CAPACITY Court Subject to Cultural Biases “Pre-Understanding”

17. CLOSING UP UNDUE INFLUENCE & CAPACITY Lawyering to Address Pre-Understanding • Will drafting & creation to increase reliability • Craft presentation of story to take into account likely biases of courts

18. Risk Of Loss & Equitable Conversion • Problems arise during period from signing of contract to sell until closing (when legal title passes). • During this period, both parties have interests in property. • Relationship described as “vendor & purchaser.”

19. Risk Of Loss & Equitable Conversion Equitable Conversion • Basis: “Equity views as done that which ought to be done.” • Once K signed, Equity views transaction as effectively complete, so: • Purchaser has “equitable title” • Vendor has equitable interest in purchase $$ • E.g., vendor dies during K period. • Heirs just get “bare legal title” • Must convey when purchase money profferred

20. Risk Of Loss & Equitable Conversion Equitable Conversion • Basis: “Equity views as done that which ought to be done.” • Once K signed, Equity views transaction as effectively complete: • Compare to partially paid mortgage: • Technically borrower can lose title to mortgage-holder if stops paying • Equity views borrower as owning interest in house equal to value less amount still owing (what we call having Equity in your house).

21. Risk Of Loss & Equitable Conversion What happens if property being conveyed is damaged during K period? E.g., • Fire or disaster damages buildings or land • Change in law makes current or intended use unlawful • Eminent Domain removes all or part of land (issue if price gov’t gives is significantly different than price agreed on)

22. Risk Of Loss & Equitable Conversion What happens if damage during K period? • Can always put in K provision resolving. • Casebook asks: Why would parties be reluctant to address? • Maybe Cognitive Dissonance • May be easier to agree to ignore & take chance • “Parties can always draft better K alone.” • Hard to bargain re big but unlikely risks.

23. Risk Of Loss & Equitable Conversion What happens if damage during K period and no provision in K? States Vary. • Traditional Rule (Equitable Conversion): Risk falls on purchaser b/c K viewed as completed when signed. • Rule in Paine v. Meller • May be sensible if agricultural land where value is primarily in land, not buildings

24. Risk Of Loss & Equitable Conversion What happens if damage during K period and no provision in K? States Vary. • Traditional Rule: Risk on purchaser • Some states: Risk on vendor • Modern Trend: Risk goes with Possession • If vendor retains possession, retains risk • If purchaser takes possession, gets risk

25. Risk Of Loss & Equitable Conversion What happens if damage during K period and no provision in K? States Vary. Modern Trend: Risk with Possession: Justifications? • Better position to guard ag. hazards • Better position to insure • Better position to collect evidence after loss • May be what people expect

26. Risk Of Loss & Equitable Conversion If party not bearing risk of loss gets insurance proceeds, do they have to be turned over to other side (or set off)? • E.g., in state with traditional rule, vendor still has insurance after K signed. If building burns and insurance pays vendor, does vendor have to reduce purchase price by amount of insurance?

27. Risk Of Loss & Equitable Conversion If party not bearing risk of loss gets insurance proceeds, do they have to be turned over to other side (or set off)? • English Rule: No: insurance = private K and so other party has no claim • Modern American trend: Yes: so insured party doesn’t get unfair windfall

28. Risk Of Loss & Equitable Conversion SKELLY OIL (Mo. 1963) • Fire destroys building during K period • Probably raised value to purchaser • Vendor received insurance proceeds • Purchaser sued to force sale and to have insurance proceeds set-off against purchase price

29. Risk Of Loss & Equitable Conversion SKELLY OIL (Mo. 1963) • Court rejects traditional rule • Adopts Mass. Rule: • Risk of loss on vendor • If substantial loss, purchaser can rescind • If smaller loss, purchaser must close deal but can get damages for value lost

30. Risk Of Loss & Equitable Conversion SKELLY OIL (Mo. 1963) Court reduces purchase price by amt of insur. proceeds. Seen as inconsistent with adoption of Mass. Rule: • If risk of loss on vendor, windfall benefit should follow • Reason for insurance set-off was unfairness of one party bearing risk and other getting $$$. Not true here.

31. Risk Of Loss & Equitable Conversion SKELLY OIL (Mo. 1963) Court reduces purchase price by amt of insur. proceeds. Maybe court thinks easier to give vendor exactly the amount expected & give windfall to purchaser then to try and figure out what damages would make purchaser whole.

32. Risk Of Loss & Equitable Conversion Policy Qs For You (Parallel Ldld-Tnt) Should Rules Be Different for…? • Urban v. Rural • Residential v. Commercial • Type of loss (physical v. legal) • For Eminent Domain or Zoning change, can’t insure • Effect on parties may be unequal w Zoning change • Size of loss? (e.g., Mass. Rule) • if substantial, vendor can't specifically enforce K • if not, can enforce but purchaser gets price abatement

33. LOGISTICS • Chapter 7 • I’ll do Intro Lecture at start of Wed/Fri class • Helpful to do reading although I’m lecturing • Most important thing: Memorize Definitions • Using the Workbook • Old Exam Qs/Answers posted over break • Exam is on Fri March 26 • Should Arrange Accommodations Now • If Can’t Be There, Address Now with Dean of Students (Not Me!)

34. LOGISTICS • Written Assignments • Qs on Written Assignment #3? • Look at Written Assmts #4 & #5 for Monday • Due at Start of Class • Errors in Submissions • Instructions • General Sloppiness • Lateness Generally • Acting • CD Player

35. Intro to Landlord-Tenant Law Unit III: Mi Casa Es Su Casa: Voluntary Division of Property Rights in One Parcel of Land Over Time • Chapter 7: Estates & Future Interests (EFI) • Chapter 6: Landlord-Tenant Law: • Starts as subset of EFI; develops into separate body of law. • We’ll do a few issues to get a sense of kinds of problems that arise • Disputes in context of primarily voluntary K’ual agreement • Issues similar to Chapter 4 & Chapter 8

36. Intro to Landlord-Tenant Law Key Theme: Should We View Lease Primarily as Contract or as Conveyance? Contract View of Leases • View as ongoing relationship with mutual responsibilities • Assume parties can negotiate freely • Focus on terms of lease & parties' intent • Allows parties freedom to structure relationship

37. Intro to Landlord-Tenant Law Key Theme: Should We View Lease Primarily as Contract or as Conveyance? “Property” Approach to Problems • Determine category; rules flow from that (EFI) • Like rules for parent-child or spouses: • Legal rights mostly arise from relationship not from terms of specific agreements/Ks

38. Intro to Landlord-Tenant Law Key Theme: Should We View Lease Primarily as Contract or as Conveyance? Lease as Conveyance: Traditional • Near complete transfer of ppty rts from L to T • Remember bundle of sticks • Cut up in time: T gets rights for 10 yrs, e.g. • L retains rights after lease ends • T essentially owner of property for term of lease (w duties to L)

39. Intro to Landlord-Tenant Law Key Theme: Should We View Lease Primarily as Contract or as Conveyance? Lease as Conveyance: Modern Statutes • Statutes in all states: check first, then cases • Define a variety of rights/duties that are based on relationship, not on K (often non-waivable) • E.g., Florida Residential L-T statute in your materials

40. Intro to Landlord-Tenant Law Key Theme: Should We View Lease Primarily as Contract or as Conveyance? • Trends re property & K views noted in casebook. • Move from primarily agriculture to residential & commercial (property  K) • Increasing vision of residential tenants as vulnerable (K Property) • not seen as equal bargainers • form leases (many tenants don't read) • tenants lack knowledge/competence at repair, etc. • small knowledge of rights

41. Intro to Landlord-Tenant Law Key Theme: Leases Include Wide Range of Transactions • Traditional Agriculture • Residential (Range of Transactions) • Type of unit: single family v. multi • Range of time: short term, long term • Commercial: (Relative Strength of Parties) • Both Big (Large Development co. v. Large Law firm) • Big Ldld, Small Tnt: (Shopping Center v. Boutique) • Big Tnt, Smll Ldld: (Farmer v. Oil Co. re Oil Lease)

42. Intro to Landlord-Tenant Law Key Theme: Leases Include Wide Range of Transactions • Traditional Agriculture • Residential (Range of Transactions) • Commercial: (Relative Strength of Parties) • For each issue we study, should rules be same for each type of lease? • Might vary w categories • Might vary w fact-specific Qs re bargaining power; sophistication, etc.

43. Intro to Landlord-Tenant Law EXAM COVERAGE • Measure of testability of issues = time in class • Some info just background • E.g., Types of Tenancies; Doctrine of Waste • Some info we won’t cover separately; but will bring up where relevant to major issues • Lists of available remedies for ldld • Form & usefulness of summary proceedings

44. Intro to Landlord-Tenant Law EXAM COVERAGE • Florida Residential L-T Statute • Detailed Work in Written Assmt #4; Responsible For Info/Issues in Comments & Best Answers • Always can use Fl as example on Open-Ended Q • If Q requires you to use specific Fl provision or provisions, I’ll attach to test

45. Ldld-Tnt Law: Tnt’s Right to Possession (HAWKS) Basic Issue • Lease provides that incoming tenant may enter on specific date. • Prior tenant doesn’t leave on time; incoming tenant harmed. • Who is responsible to evict holdover tenant? Landlord or Incoming Tenant?

46. Ldld-Tnt Law: Tnt’s Right to Possession (HAWKS) Who has to evict holdover tenant? • American Rule = Tenant • Consistent with “property approach” • Your land; your responsibility • British Rule = Landlord

47. Ldld-Tnt Law: Tnt’s Right to Possession (HAWKS) Who has to evict holdover tenant? • American Rule = Tenant • British Rule = Landlord • Consistent with “Contract Approach” • Tenant Likely Bargained For/Expected Actual Possession, Not Empty Legal Right • Could Reassess for DifferentExpectations in Particular Situations

48. Ldld-Tnt Law: Tnt’s Right to Possession (HAWKS) Who has to evict holdover tenant? • American Rule = Tenant • Britsh Rule = Landlord • Consistent with “Contract Approach” • Tenant Likely Bargained For/Expected Actual Possession, Not Empty Legal Right • Could Reassess for DifferentExpectations in Particular Situations

49. Ldld-Tnt Law: Tnt’s Right to Possession (HAWKS) Rationales for British Rule? (1) L better info re old T: • (Rstmt pt #1): L knows status of property before new T moves in • (Restmt pt #2) L knows whether persons in possession properly or improperly (e.g., when does old lease end) • L likely better info re eviction procedures • L likely most efficient evictor (forms; atty in field on retainer etc.)

50. Ldld-Tnt Law: Tnt’s Right to Possession (HAWKS) Rationales for British Rule? (2) L better position to act: • (Rstmt pt #3): prior to effective date of new lease, only L can evict • (Restmt pt #4) L can get protection from old T re holdovers (loss of deposit, etc.) • L likely most efficient evictor (forms; atty in field on retainer etc.) • In possession of relevant evidence (leases etc.) • Concern about L incentives to be firm w prior T