Music: Al Stewart, Time Passages (1978)
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)
LUNCHES
Rev. Prob. 5A: §J
Eagles: Capacity
Meet Today Here @ 12:35
Flood*Gottfried*E.Horowitz
House*Ivey*Nagele (+1?)
O’Connell*Langan
Eble*Alman
Alts:TuckerManGini
Tomorrow on Brix @ 12:25
Cain*Carlo*Jesson*Mantel
Weisman (+2?)
Falcons: Undue Infl
Gottfried*Goggin
Perez*McCardle
Alts:Kempf/Schillinger
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)
REVIEW PROBLEM 5A:
CAPACITY ISSUES: EAGLES
• Legal Research?
• Factual Research?
REVIEW PROBLEM 5A:
UNDUE INFLUENCE: FALCONS
• Legal Research?
• Factual Research?
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.”
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
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
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?
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?
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
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
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
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”
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
CLOSING UP UNDUE INFLUENCE &
CAPACITY
Court Subject to Cultural Biases
“Pre-Understanding”
CLOSING UP UNDUE INFLUENCE &
CAPACITY
Lawyering to Address PreUnderstanding
• Will drafting & creation to increase
reliability
• Craft presentation of story to take into
account likely biases of courts
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.”
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
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 mortgageholder 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).
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)
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.
Risk Of Loss & Equitable
Conversion
What happens if damage during K period and
no provision in K? States Vary.
1. 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
Risk Of Loss & Equitable
Conversion
What happens if damage during K period and
no provision in K? States Vary.
1. Traditional Rule: Risk on purchaser
2. Some states: Risk on vendor
3. Modern Trend: Risk goes with Possession
•
•
If vendor retains possession, retains risk
If purchaser takes possession, gets risk
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?
1. Better position to guard ag. hazards
2. Better position to insure
3. Better position to collect evidence after
loss
4. May be what people expect
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?
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
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
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
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.
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.
Risk Of Loss & Equitable Conversion
Policy Qs For You (Parallel Ldld-Tnt)
Should Rules Be Different for…?
1. Urban v. Rural
2. Residential v. Commercial
3. Type of loss (physical v. legal)
•
•
For Eminent Domain or Zoning change, can’t insure
Effect on parties may be unequal w Zoning change
4. Size of loss? (e.g., Mass. Rule)
–
–
if substantial, vendor can't specifically enforce K
if not, can enforce but purchaser gets price abatement
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!)
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
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
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
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
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)
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
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
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)
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.
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
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
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?
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
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 Different
Expectations in Particular Situations
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 Different
Expectations in Particular Situations
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.)
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
Ldld-Tnt Law: Tnt’s Right to
Possession (HAWKS)
Rationales for British Rule?
(3) Restmt #5: T is getting less than
reasonably anticipated bargain
Why more true for T than for L?
Ldld-Tnt Law: Tnt’s Right to
Possession (HAWKS)
Rationales for British Rule?
(3) Restmt #5: T is getting less than
reasonably anticipated bargain
Why more true for T than for L?
• Might view L anticipated bargain to be:
– steady income stream +
– minimal upkeep
Ldld-Tnt Law: Tnt’s Right to
Possession (HAWKS)
Rationales for American Rule?
• Shouldn’t be responsible for wrongful acts
of another absent express K
• T has adequate unlawful detainer remedy
• L difficulty leasing before prior T leaves
– Holdover always poss
– Would force L to leave gap between tenancies
(inefficient)
• OTHERS?
Ldld-Tnt Law: Tnt’s Right to
Possession (HAWKS)
Rationales for American Rule?
• Shouldn’t be responsible for wrongful acts
of another absent express K
• T has adequate unlawful detainer remedy
• L difficulty leasing before prior T leaves
– Holdover always poss
– Would force L to leave gap between tenancies
(inefficient)
• CONVINCING?
Ldld-Tnt Law: Tnt’s Right to
Possession (HAWKS)
DQ85: Reasons to Treat This Differently?
Agriculture
v.
Commercial
v.
Residential
Ldld-Tnt Law: Tnt’s Right to
Possession (HAWKS)
DQ86: If English Rule (Landlord Duty),
Waivable for Residential Lots?
Ldld-Tnt Law: Tnt’s Right to
Possession (HAWKS)
Related Issue: Risk of Loss
• Traditional Rule (Property Approach
Based in Agric.): T is “owner”; T bears
risk
• Modern Trend: If building necessary to
purpose of lease, T can rescind
Ldld-Tnt Law: Tnt’s Right to
Possession (HAWKS)
Related Issue: Risk of Loss
• P662: Matter if Residential or
Commercial?
Ldld-Tnt Law: Tnt’s Right to
Possession (HAWKS)
Related Issue: Risk of Loss
• P662: Matter if Residential or
Commercial?
• DQ87: Issue Connected to Right to
Possess?
Ldld-Tnt Law: Tnt’s Right to
Possession (HAWKS)
Related Issue: Risk of Loss
• P662: Matter if Residential or
Commercial?
• DQ87: Issue Connected to Right to
Possess?
• P662: Change in Environmental
Quality (No Explicit K Provision)?