PROPERTY A SLIDES

PROPERTY A SLIDES 2-27-17 NATIONAL POLAR BEAR DAY NATIONAL KAHLUA DAY

Music to Accompany KnudsenAmy Winehouse, Back to Black (2007) featuring “You Know I’m No Good” MONdayPop Culture QUIZ Name the Musical Group: • 1st Billboard #1 Hit in 1958 • Won 5 Grammys; Nominated for 8 More • Featured in Major Studio Motion Picture in 2011 Last Lunch Today Meet on Bricks @ 11:55 Delgado * Dilts * Hynes Mitchell * Piccolino Poo * S. Stone

MONdayPop Culture QUIZ Name the Musical Group: • 1st Billboard #1 Hit in 1958 • Won 5 Grammys; Nominated for 8 More • Featured in Motion Picture in 2011

Previously in Property A Intro to XQ3: Opinion/Dissent Chapter 2: Tenant Selection Anti-Discrimination Law Intro to Operation of the Statutes Proof of Discriminatory Intent Sorenson & Rev Prob 2D Right to Transfer Funk & [Implied] Reasonableness Term Rev Prob 2F

Previously in Property A Chapter 2: Habitability Overview Quiet Enjoyment & Constructive Eviction Operation of the Causes of Action Barrash & Gurian as Examples

Habitability & Eviction: Review Problems • DF This Week: 2016 Question IV Parts a & b (Both) • Tempest at the Teapot (Both) • In-Class Tues/Thurs/Fri (ALL PANELS) •  Additional Instructions on Course Page • Review Problem 2J (Opinion/Dissent Habitability) • In-Class Thurs (ACADIA/BADLANDS/EVERGLADES) •  Additional Instructions on Course Page • DF Next Week • Review Problem 2G (Short Problem: Right to Transfer & Knudsen) • Review Problem 2K Part (a) (Lawyering Habitability)

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

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

(2) Constructive Eviction:Nature of Claim (from Last Time) • EXAMPLES • L Acts That Effectively Exclude Reasonable T (cf. Knudsen) • L’s Failure to Maintain  Effectively Excludes Reasonable T • Finkel 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

EVERGLADES: DQ2.13 EGRET IN MANGROVE SWAMP

Quiet Enjoyment Claims: 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” (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 This Week)

Everglades: 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

Chapter 2. Leased But Not Last: Selected Issues in Landlord/Tenant Law • The Importance of Context • Ldld’sRight 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

IMPLIED WARRANTY OF HABITABILITY(IWH): Overview • Traditional: No L Duties w/o Express Term in Lease • From Early Twentieth Century: • Constructive Eviction Evolves • Most Cities Adopt Building/Housing Codes • Allow Gov’t Enforcement of Minimum Standards for Residences and Commercial Buildings • Historically in Practice, Very Uneven Enforcement & Lot of Corruption (E.g., Miami-Dade & Hurricane Andrew)

IWH: Intermediate Step Illegal Lease Theory • See Brown (discussed in Javins@ P617-18) • Housing Code violations severe enough to make occupancy of unit illegal (Problems must exist at start of lease)

IWH: Intermediate Step Illegal Lease Theory • See Brown (discussed in Javins@ P617-18) • Housing Code violations severe enough to make occupancy of unit illegal (Problems must exist at start of lease) • Remedy: Lease is Void • Tenant free from rent obligations

IWH: Intermediate Step Illegal Lease Theory • See Brown (discussed in Javins@ P678-79) • Housing Code violations severe enough to make occupancy of unit illegal (Problems must exist at start of lease) • Remedy: Lease is Void; Tenant owes no rent • BUT w/o lease, LDLD can evict right away • & TNT can’t rely on helpful lease provisions

IMPLIED WARRANTY OF HABITABILITY(IWH): Overview • Traditional: No L Duties w/o Lease Term • From Early Twentieth Century: • Constructive Eviction Evolves • Most Cities Adopt Building/Housing Codes • 1965-1985: Most States Adopt IWH • Some State Supreme Courts (& D.C. Cir.) Do as Common Law • See Javins @ P615-17 Justifying Evolution of Common Law • Lot of State Legislatures Pass Statutory Versions of IWH (incl FL)

JUSTIFICATIONS FOR IWHcf. Products Liability • 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

OPERATION OF IWH: KEY Qs • What Constitutes Breach? • Available Remedies? • Notice & Time to Cure Required? • Waivable?

OPERATION OF IWH:1. What Constitutes Breach? Legal Test Varies by State (see N.3 P620-21) • Some States Tie to Breaches of Housing Code • E.g., Javins • Can’t be de minimis(see footnote 60 on P619) • For Non-Residential Leases, Check for Similar “Building Codes” • Some States Adopt More Gen’l Legal Test • E.g., NY Statute cited in Knudsen (P629): Ldld warrants that Tnts “shall not be subject to any condition which would be dangerous … or detrimental to their life, health, or safety.” • Other similar examples in Note 3 on P620-21

OPERATION OF IWH:1. What Constitutes Breach? Legal Test Varies by State (see N.3 P620-21) • Some States Tie to Breaches of Housing Code • Some States Adopt More General Legal Test • Florida §83.51 (S24)(Covered in Statutory Tempest Problem) • Housing Codes Where Applicable • List of Specific Requirements if No Applicable Housing Code

OPERATION OF IWH2. Available Remedies? • Generally Traditional Contract Remedies Available • Rescission  BUT = No Housing • Damages [Detailed in N.6 P621-23 (unassigned)]  BUT Ordinary Civil Suit Very Slow • DQ2.14 (1st Q): These are problems with Constructive Eviction Claims (along with focus on possession rather than quality of unit)

OPERATION OF IWH2. Available Remedies? • Generally Traditional Contract Remedies Available • Rescission  No Housing • Damages  Very Slow • Many States Add More Tenant-Friendly Remedies (see N.7 P684-85)(These are the Real Teeth for Tnts) • Withholding Rent/Rent Abatement • T simply stops paying (after proper notice) • T may have to put rent in escrow (see P619 Javinsfn67) • Repair & Deduct • Better for Tnts b/c Remain in Housing & Relatively Quick Fix

OPERATION OF IWH2. Available Remedies? ACADIA DQ2.15 What Remedies Are Provided in Florida Statutes for Problems with Habitability Issues?

OPERATION OF IWH2. Available Remedies? ACADIA DQ2.15: Remedies in Florida Statutes • §83.54/83.55 (S25): Civil Suit.for Damages • §83.56(1) (S26): Termination of Lease (with proper notice) • §83.60 (S28-29): Withholding Rent: Procedural Requirements? • Repair & Deduct?

OPERATION OF IWH2. Available Remedies? ACADIA DQ2.15: Remedies in Florida Statutes • 83.54/83.55 (S25): Civil Suit.for Damages • §83.56(1) (S26): Termination of Lease (with proper notice) • §83.60 (S28-29): Withholding Rent: Procedural Requirements? • Subsection (1): Proper notice • Subsection (2): If defending a suit for non-payment of rent on basis of IWH violation, tenant must pay amount due into court registry to maintain claim. • Repair & Deduct? Not Provided by Fl. Stat.

OPERATION OF IWH:3. Notice & Time to Cure? • Usually to Invoke IWH, T Must: • Provide Notice of Problem to L • Only Responsible for Details of Notice If • Florida Statute Provided -OR- • Looking for Reqmts in Lawyering Q • Allow L Reasonable Time to Cure

OPERATION OF IWH4. Waivable? Varies by State & Circumstances • Most States: IWH Not Waivable • Some States: Depends on Freely Bargained v. Boilerplate • FL §83.51: • Can waive allreqmts for single family home & “duplex” (FL v. NY) • Some reqmts not waivable for apts in multi-unit building • Tomorrow After Rev Prob 2L: ~10-12 Minutes Policy Debate Over Waivability (N. 11 P625-27) & DQ2.14 (2d Q) (ACADIA  Volunteers)

SCOPE OF IWH: Possible Extensions of IWH: Policy Qs • IWH & Key Remedies Developed to Ensure Minimally Adequate Housing • Could seek to extend the reach by • Seeking New Legislation -OR- • Where IWH/Remediessare entirely products of common law development (no statutes), can ask state courts to extend in context of appropriate litigation. …

SCOPE OF IWH: Possible Extensions of IWH: Policy Qs IWH & Key Remedies Ensure (1) Minimally Adequate (2) Housing. Should States Extend … • Key Remedies To Cover Substantial Problems with Amenities Not Needed for Minimum Habitability (Pool, Dryer, etc.) [Not Doing in Class; Worth Thinking About] • See Rev. Prob. 2H (S57) • Part of Rev Prob 2J that we won’t address in class

SCOPE OF IWH: Possible Extensions of IWH: Policy Qs IWH & Key Remedies Ensure (1) Minimally Adequate (2) Housing. Should States Extend … • Key Remedies To Cover Problems Beyond Minimum Habitability • To Cover [Small] Commercial Tenants? (DQ2.16) • Done in a Few States; See N.10 P624-25 • Can Be Called Implied Warranty of “Suitability” • Some States Allow Rent Withholding for Lease Violation but no IWH • We’ll Address as Part of Rev. Prob. 2J Thursday

ACADIA: Knudsen & DQ2.17 Acadia Sunrise

Knudsen & Tenant Remedies for Undesirable Neighbors (ACADIA) Background to Knudsen: N.Y. Law • “Registrable Offenses” = List of Crimes that involve sexual violence and/or sexual activity with minors. • “Sex Offender” = Person convicted of Registrable Offense • When Sex Offender released to community after conviction, court holds a hearing to determine risk level (likelihood of repeating same or similar offense). The court may assign one of the following three risk levels: • Level 1 (low risk of repeat offense), or • Level 2 (moderate risk of repeat offense), or • Level 3 (high risk of repeat offense and a threat to public safety exists).

Knudsen & Tenant Remedies for Undesirable Neighbors (ACADIA) Background to Knudsen: N.Y. Law • When Sex Offender gets a new residence, state provides notification online and (I think) directly to neighbors. • Level of detail in the notification depends on Risk Level. For Level 3, notification includes specific address, picture & list of relevant convictions. • As I understand it, Landlord effectively can’t prevent renting to Sex Offender because • Notification triggered by Sex Offender moving in; and • Landlord can’t evict just b/c Sex Offender

Knudsen & Tenant Remedies for Undesirable Neighbors (ACADIA) • Possible Legal Theories • Fairness/Public Policy • Scope of the Remedy • Who can invoke? • Against whom can it be invoked?

Knudsen & Tenant Remedies for Undesirable Neighbors (ACADIA) (1) Legal Theory for Tenant Remedy • Court doesn’t say that Landlord breached lease by renting to Sex Offender • Instead, Problem is Refusing to Let TNT Terminate Lease (Without Penalty) . Court Says: • Remaining would be Inconsistent with Covenant of Quiet Enjoyment • Refusing Request for Termination Unconscionable/Villation of Covenant of Good Faith & Fair Dealing • Why not violation of Implied Warranty of Habitability? • Could Court have used Constructive Eviction Theory?

(2) Constructive Eviction:Nature of Claim (from 2/23) • 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”

Knudsen & Tenant Remedies for Undesirable Neighbors (ACADIA) (2) Fairness/Public Policy • Court notes on P628 Public Policy to prevent repeat sexual offenses by notifying potential victims (particularly children). • How do we know that NY State has not chosen to make this concern its first priority in all circumstances? • Assuming the Landlord could not reject the Sex Offender as a tenant, is it fair to allow the Tenant to terminate the lease?

PROPERTY A SLIDES