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PROPERTY E SLIDES

PROPERTY E SLIDES. O4-09-13. NCAA Contest. TOP 7. BOTTOM 7. BRIEF IS IN!! WHAT NOW??. Five Weeks of Fun. BRIEF IS IN! WHAT NOW??. Generally Keep Preparing & Going to Class End of semester material often tested disproportionately.

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PROPERTY E SLIDES

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  1. PROPERTY E SLIDES O4-09-13

  2. NCAA Contest TOP 7 BOTTOM 7

  3. BRIEF IS IN!! WHAT NOW??

  4. Five Weeks of Fun

  5. BRIEF IS IN! WHAT NOW?? Generally • Keep Preparing & Going to Class • End of semester material often tested disproportionately. • Profs often summarize, tie together themes, and give exam hints in last classes.

  6. BRIEF IS IN! WHAT NOW?? Generally • Keep Preparing & Going to Class • Old exam Qs under exam conditions • Practice the skills • Learn what your Profs look for

  7. BRIEF IS IN! WHAT NOW?? Generally • Keep Preparing & Going to Class • Old exam Qs under exam conditions • Think about exam technique • Exam skills workshops • Info from current Profs • Review last semester’s exams

  8. BRIEF IS IN! WHAT NOW?? Generally • Keep Preparing & Going to Class • Old exam Qs under exam conditions • Think about exam technique • It’s a Marathon, Not a Sprint • Plan Your Studying • Conserve Energy

  9. BRIEF IS IN! WHAT NOW?? Property • Short Turnaround after ConLaw Exam: Plan Appropriately • Can’t do 90% of Exam Prep in 2 Days • Set Aside Time for Property between now & Crim Pro Exam

  10. BRIEF IS IN! WHAT NOW?? Property • Plan for Short Turnaround • Old Qs Under Exam Conditions • 15 min read/60 min write • closed book except for syllabus

  11. BRIEF IS IN! WHAT NOW?? Property • Plan for Short Turnaround • Old Qs Under Exam Conditions • Submit Sample Q for Feedback • Deadline = Sat 4/27 @ 9pm

  12. BRIEF IS IN! WHAT NOW?? Property • Plan for Short Turnaround • Old Qs Under Exam Conditions • Submit Sample Q for Feedback • Read end-of-semester IMs & Old Comments/Models

  13. BRIEF IS IN! WHAT NOW?? Property • Plan for Short Turnaround • Old Qs Under Exam Conditions • Submit Sample Q for Feedback • Read IMs & Old Comments/Models • Utilize Review Session & Pre-Exam Office Hours

  14. YOU CAN DO THIS !

  15. LOGISTICS: Operation of Class • I’ll Redo Remaining Schedule This Afternoon • Adjust to Where We Finish Today • Long Class Next Monday • More Detailed Instructions for Rev. Prob. 6D Monday • Remove Last Part of Chapter 7 • Add Two More Problems to do in Class • For Thursday/Monday: Cases on Evidence of Intentional Discrimination (identifying as many relevant pieces of evidence as possible)

  16. LOGISTICS: Dean’s Fellow • This Week: Review Problem 6C • Next Week: Review Problem 6I • Greg will e-mail more detailed instructions

  17. LOGISTICS: My Priorities • Fix Old Exam Files to Reflect Topics Dropped • Get Chapter by Chapter Info Memos Posted • Comment on Sample Exam Answers as Submitted • I can give better & quicker feedback to submissions that come in early • Once I start receiving substantial numbers, then I’ll likely wait until all are in QUESTIONS?

  18. CHAPTER 6 PART B:HABITABILITY ISSUES • Overview • Quiet Enjoyment/Constructive Eviction • Implied Warranty of Habitability & Related Doctrines

  19. Habitability = Duties of LDLD re Physical Condition of Premises Traditional View • LDLD Guaranteed Legal Access to Premises • No Duties re PhysicalCondition Unless Specifically Stated in Lease • Again, Based in Agrarian View of Leases

  20. Habitability = Duties of LDLD re Physical Condition of Premises Changes Over Time A. Social Changes • Most Leases for Residence or Business, so Primary Value of Lease Usually is Building, Not Land • TNTs less competent to do maintenance B. Legal Changes

  21. Habitability = Duties of LDLD re Physical Condition of Premises Changes Over Time A. Social Changes B. Legal Changes • Courts increasingly protect tenants a. Quiet Enjoyment/Constr. Eviction (early 20th C ) b. IWH & related doctrines (1960s ) • Most States Adopt Detailed LT Statutes (at least for Residential)

  22. Habitability = Duties of LDLD re Physical Condition of Premises Pay Attention to: • Nature & Extent of LDLD Duties • Remedies Available to TNT • Waivability

  23. CHAPTER 6 PART B:HABITABILITY ISSUES • Overview • Quiet Enjoyment/Constructive Eviction • Implied Warranty of Habitability & Related Doctrines

  24. Overview of Quiet Enjoyment/ Constructive Eviction Implied Covenant of Quiet Enjoyment • Generally Implied in Leases • Traditionally not about quiet or enjoyment in physical or literal sense. • Protected T’s legal right to possess from acts authorized by L • e.g., L evicts or excludes prior to end of lease • e.g., L purports to rent or sell to someone else prior to end of lease • Over Time, Legal Q Develops: What other kinds of protections are implied in the Covenant of QE?

  25. Overview of Quiet Enjoyment/ Constructive Eviction Three Relevant Doctrines 1. Partial Actual Eviction: 2. Constructive Eviction 3. Partial Constructive Eviction (Not All States) Exam Prep Note: Claims Overlap & All 3 Can Arise from Same Facts (See Review Problem 6C & Old Exam Q 4U)

  26. Overview of Quiet Enjoyment/ Constructive Eviction Barash(P662) • 2 Penn Plaza: Office Building • No A/C Nights & Weekends • BUT Lease Says This

  27. Overview of Quiet Enjoyment/ Constructive Eviction Gurian(P666) • 301 E. 69th St. (Apt. 18E) • Problems on Terrace • Terrace = “Prime Factor” in Entering Lease • A/C  Green Fluid/Stream of Water • Incinerator  Ash Particles

  28. GLACIER: DQ95-96 &Eviction Causes of Action Glacier Mountain Lion

  29. Partial Actual Eviction:Nature of Claim 1.L physically uses or authorizes use of part of leased premises a. some states: can be any part b. some states: needs to be substantial 2. Remedy a. Traditional: if not de minimis, complete abatement of rent b. Some States/Trend: Apportion: pro rata decrease in rent

  30. Partial Actual Eviction:In Cases (GLACIER DQ95) • Why Not Met in Barash? • No physical expulsion/exclusion of T • No seizure or actual use by L • Remedy for unpleasant odors etc. = constructive eviction

  31. Partial Actual Eviction:In Cases (GLACIER DQ95) • Guriandoesn’t rely on b/c reads Barashto say very limited. DQ95: Too Cautious? • Argument that Fits Claim? • Excluded from Terrace by Problems L Could Control • Possible Arguments Against? • Scope of Problem Unclear; Really Excluded from Terrace?

  32. Constructive Eviction:Nature of Claim • L acts that don’t literally deprive T of physical possession but are essentially equivalent to eviction • Test in Barash: “L’s wrongful act substantially & materially deprives the T of the beneficial use & enjoyment of the premises” (P664)

  33. Constructive Eviction:Nature of Claim • T’s REMEDY: • Terminate Lease (Leave + Stop Paying Rent) • Gurian: Must Act w Reasonable Promptness • EXAMPLES • Physical Blocking of Access • L Acts That Effectively Exclude Reasonable T • L’s Failure to Maintain  Effectively Excludes Reasonable T

  34. Constructive Eviction:In Cases (GLACIER DQ95) • Not Met in Barash: Didn’t Leave • Why Require T to Leave?(Problems with: “An ordinary T would have left but I am tough and hung in there?”) • Parallel to Ordinary Eviction • Easy Way to Show Really Uninhabitable; Eliminates Line-Drawing Problems

  35. Constructive Eviction:In Cases (GLACIER DQ95) 2. Gurian: Not Met Because: • Have to Leave Entire Apt for This Claim • Waited Too Long (17 Months) • Can Take Time to Wait for L to Act • Can be Flexible Given Housing Mkt • BUT no evidence that they tried to get other apt earlier

  36. PARTIAL Constructive Eviction: Nature of Claim • L acts that seriously interfere with T’s use that are essentially equivalent to eviction from part of the premises • T just has to leave affected area, not whole premises • Not recognized by all states • T’s REMEDY: • Some States full rent abatement (e.g. Gurian) • Some States pro-rated

  37. PARTIAL Constructive Eviction: In Cases • Gurian: • Easy case if you allow these claims; terrace unusable and abandoned immediately • Nice Lawyerly Analysis Defending Existence of Claim • Barash Raises Interesting Qs: Should Doctrine Apply Where: • A/C Unavailable to Some Rooms in Office Suite • Usable v. Unusable Divided by Time, Not Space

  38. PARTIAL Constructive Eviction: Justifications • Parallel to Actual Partial Eviction • No reason to limit remedy to cases where whole apt harmed • Concern about shortages of urban residential housing & bargaining power • Seems harsh to require (v. permit) T to look for new housing if only partly uninhabitable • BUT: Big line-drawing problems not present if T leaves apt entirely

  39. Quiet Enjoyment Claims: Actionable Interference • Must Be Attributable To L (Note 4 P670-71) • Hard Qs Involve Actions of Other Tenants • Trend: L Responsible if Right to Control T’s Acts • MUST BE “SUBSTANTIAL” (Note 3 P670) • Relatively Meaningless Standard w/o Examples of Explanation • DQ96 designed to try to help you think about how to quantify

  40. OLYMPIC: DQ96 • Another T in Residential Bldg Making Noise at Night: • Clearly Insubstantial IF • Clearly Substantial IF • Hard to Say IF c) The Roof Leaks When It Rains • Clearly Insubstantial IF • Clearly Substantial IF • Hard to Say IF

  41. CHAPTER 6 PART B:HABITABILITY ISSUES • Overview • Quiet Enjoyment/Constructive Eviction • Implied Warranty of Habitability & Related Doctrines

  42. IMPLIED WARRANTY OF HABITABILITY(IWH): Overview • Traditional: No L Duties w/o Lease Term • From Early Twentieth Century: • Constructive Eviction Evolves • Building Codes in Most Cities • Most States 1965-1985 • Some State Supreme Courts Adopt IWH • Lot of State Legislatures Pass Statutes Adopting Versions of IWH (incl FL)

  43. JUSTIFICATIONS FOR IWH • Reasonable Expectations of Residential T • L in better position to repair etc. • Concern re unequal bargaining power • Public Policy re Condition of Housing • Reality that Housing Codes not tightly enforced by gov’t

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