PROPERTY B SLIDES

1. PROPERTY B SLIDES 2-20-19 NATIONAL CHERRY PIE DAY

2. Music to Accompany Javins:Simon & Garfunkel, Greatest Hits (1972)featuring “Bridge Over Troubled Water” (1970) Next Few DF Sessions: • Current: Rev Prob 2E (Lauren) • Today @ 9:40 Here • Friday @ 9:40 Here • Then: Rev Prob 2G • Monday @ 9:40 Here (Brendan) • Wednesday @ 9:40 Here (Lauren) New on Course Page Banks of Old Hour-Long Exam Qs (QI, QIII, QIV) Comments & Best Answers forthcoming as we Cover Underlying Material

3. MONDAY (2/25)Review Problem 2L(b)(S64-65) • OLYMPIC: Anti-Discrimination Claim (Monday) • Evidence Supporting/Refuting that S Rejected B b/c he believed B was Muslim or Arab • SEQUOIA: Reasonableness Claim (Monday) • S has Legit. Interest in Whether B Can Afford to Pay Rent • Why Might Rejection Be Unreasonable Anyway? • What Evidence Here is Relevant? • What Additional Facts Might be Relevant?

4. Chapter 2. Leased But Not Last: Selected Issues in Landlord/Tenant Law • The Importance of Context • Ldld’s Right to Exclude (& Legitimate Interests of Tnts) • Habitability & Related Issues A. Overview B. Quiet Enjoyment/Constructive Eviction C. Implied Warranty of Habitability & Related Doctrines D. Problems

5. Habitability = Duties of LDLD re Physical Condition/Usability of Premises (Recap) Traditional View • LDLD Guarantees TNT has Legal Access to Premises • No Duties re Physical Condition Unless Specifically Stated in Lease • Based in Agrarian View of Leases

6. Habitability = Duties of LDLD re Physical Condition/Usability 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

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

8. Habitability = Duties of LDLD re Physical Condition/Usability of Premises For Each Cause of Action Discussed, Responsible For Sense of … • Nature & Extent of LDLD Duties • Remedies Available to TNT • Waivability

9. Possible Extension of Doctrines Addressing Habitability Knudsen & DQ2.19 (EVERGLADES Friday): • If Ldld Rents Unit Next to TNT1 to “Undesirable” TNT2, Is TNT1 Entitled to Terminate Lease or Receive Other Remedy… • Under Constructive Eviction Theory? • Under IWH?

10. Chapter 2. Leased But Not Last: Selected Issues in Landlord/Tenant Law • The Importance of Context • Ldld’s Right to Exclude (& Legitimate Interests of Tnts) • Habitability & Related Issues A. Overview B. Quiet Enjoyment/Constructive Eviction C. Implied Warranty of Habitability & Related Doctrines D. Problems

11. 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?

12. Three Relevant Doctrines Exam Prep Note: Claims Overlap & All 3 Can Arise from Same Facts (See Review Problem 2K & 2016 Exam Q 4(a))

13. Overview of Quiet Enjoyment/ Constructive Eviction Barash(P602) • 2 Penn Plaza: Office Building • No A/C Nights & Weekends • BUT Lease Says This Will Be True

14. Overview of Quiet Enjoyment/ Constructive Eviction Gurian(P605) • 301 E. 69th St. (Apt. 18E) • Problems on Terrace (“Prime Factor” in Entering Lease) • A/C  Green Fluid/Stream of Water (cf. Nickelodeon) • Incinerator  Ash Particles

15. (1) 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 • 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

16. (1)Partial Actual Eviction:In Cases 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

17. (1)Partial Actual Eviction:In Cases Guriandoesn’t rely on this cause of action; reads Barashto say claim is very ltd. Casebook Asks If 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? Bottom Line: Reqmt of Physical Expulsion or Ldld Use of Space Means “Partial Actual” has Limited Value

18. (2) 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 (Very Bottom P603): • “L’s wrongful act • substantially & materially • deprives the T of the beneficial use & enjoyment of the premises”

19. (2) Constructive Eviction:Nature of Claim • T’s REMEDY: • Terminate Lease (Musy Leave + Stop Paying Rent) • Gurian: Must Act w Reasonable Promptness (Can Give LDLD Some Time to Address) • EXAMPLES • Physical Blocking of Access • L Acts That Effectively Exclude Reasonable T (cf. Knudsen) • L’s Failure to Maintain  Effectively Excludes Reasonable T

20. (2) Constructive Eviction:Nature of Claim • EXAMPLES • L Acts That Effectively Exclude Reasonable T (cf. Knudsen) • L’s Failure to Maintain  Effectively Excludes Reasonable T • Good 2017 Eggshell Skull Q • Torts • Look at D’s Conduct to Determine Liability. • If Liable, Take Ps as You Find Them • Here: Liability Only if Harm Sufficient to Drive Out Reas. T • Special Case: Disability Accommodation (3604(f)): NOTIO

21. (2) Constructive Eviction:In Cases 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

22. (2) Constructive Eviction:In Cases 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

23. (3) 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

24. (3) 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 (Read Carefully; Let Me Know if Qs) • 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

25. (3) 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 (though housing in Gurian pretty upscale) • Seems harsh to require (v. permit) T to look for new housing if only partly uninhabitable

26. (3) 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 (though housing in Gurian pretty upscale) • Seems harsh to require (v. permit) T to look for new housing if only partly uninhabitable • BUT: Big line-drawing problems arise if T doesn’t leave apt entirely • BUT: Claim focused on possession may be wrong way to handle maintenance issues

27. Quiet Enjoyment Claims (ALL THREE): Actionable Interference • Must Be Attributable To L (See Note 4 P609-10) • Hard Qs Involve Actions of Other Tenants • Trend: L Responsible if has Right to Control T’s Acts • Can Discuss • Whether Landlord Likely to Be Able to Control • Whether Seems Type of Problem Properly Attributable to Landlord • Must Be “Substantial” for CONSTR. EV.(See Note 3 P609) • Relatively Meaningless Standard w/o Examples or Explanation • DQ2.13 designed to try to help you think about how to quantify Both These Issues Raised in 2016 QIV(a) (DF 3/6-3/8)

28. ALL: DQ2.13: “Substantial” Interference (Hard Qs/Easy Qs) • 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

29. 3 Relevant Doctrines: QUESTIONS? Exam Prep Note: Claims Overlap & All 3 Can Arise from Same Facts (See Review Problem 2K & 2016 Exam Q 4(a))

30. REVIEW PROBLEM 2FACADIA BADLANDSfor Affirmance for Reversal Acadia Sunrise NORBECK PASS

31. Review Problem 2F(S45-46)Opinion/Dissent: General Background • State Supreme Court in Prior Case: • Where Commercial Lease Required Landlord’s Consent to Transfer, the Landlord could not withhold consent Unreasonably; • Did not rule on whether T could expressly waive this reasonableness req’mt • Lease Here: “Tenant may not transfer its interest in this lease without permission of the Landlord, which permission maybe withheld for any reason at all.” • L refuses T attempt to transfer lease rights to PP; “no problem” w financial credentials BUT: • CEO of PP was “outspoken public advocate” of political positions L “sharply disagreed with” • 5 years earlier, had denied same lease to PP

32. Review Problem 2F(S45-46)Opinion/Dissent: Lower Courts • Trial Ct (in favor of Liz). • Waiver of “reasonableness” valid if comm’l lease/arm’s length agmt. • Anyway, L’s refusal “reasonable” (even in comm’l lease): • No duty to accept a transfer to already-rejected tenant • Ldld should have right to exercise strongly-held political beliefs. • Intermediate Ct App (Reversing). • “Reasonableness” implied in all leases and non-waivable • “Reasonableness” in comm’l leases ltd to concerns related to Ldld’s economic interests.

33. Review Problem 2F(S45-46)Opinion/Dissent Arguments • Is Reasonableness Req’mtWaivable in Comm’l Lease? • BADLANDS Arguments: Yes if Arm’s Length Agreement • ACADIA Arguments: Never • STRONGEST POSITION?