PROPERTY A SLIDES

1. PROPERTY A SLIDES 2-23-17 NATIONAL BANANA BREAD DAY

2. Music to Accompany Javins:Simon & Garfunkel, Greatest Hits (1972)featuring “Bridge Over Troubled Water” (1970) Now On Course Page: • Revised Chapter 2 Supplement (Edits to Last 2 Pages) • In Exam Section at Bottom: • Instructions for Submitting Sample Answers for My Review • Banks of Old Exam QI, QIII, QIV Lunch Tomorrow Meet on Bricks @ 12:25 Criddle * Harreveld Monteiro * Pollitt Sirenord

3. Review Problem 2FOLYMPIC SEQUOIA (for Affirmance) (for Reversal) EEL GLACIER SEQUOIAS

4. Review Problem 2F(S44-45)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

5. Review Problem 2F(S44-45)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’lleases ltd to concerns related to Ldld’s economic interests.

6. Review Problem 2F(S44-45)Opinion/Dissent Arguments • Is Reasonableness Req’mt Waivable in Comm’l Lease? • SEQUOIA Arguments: Yes if Arm’s Length Agreement • OLYMPIC Arguments: Never

7. Review Problem 2F(S44-45): Opinion/Dissent Arguments (B) Were L’s Reasons for Denying Consent “Reasonable”? • Trying to Establish Relevant Rules; Not Just Announcing Winner Here • NOT Especially Helpful Here (As Opposed to My Other Types of Exam Qs) to Speculate on Reasons Beyond What You Are Told re Why L Might Want to Exclude PP/MMM • TCt found prior rejection/political views sufficient w/o more; CtApp disagreed • Concern that customers might boycott PP inconsistent w info about finances • Concern that people might protest at site might be “reasonable” b/c raises economic concerns, but not given as reason by L or addressed by lower courts

8. Review Problem 2F(S44-45)Opinion/Dissent Arguments (B) Were L’s Reasons for Denying Consent “Reasonable”? (Trying to Establish Relevant Rules; Not Just Announcing Winner Here) • OLYMPIC: In Comm’l Lease, Shd Be Ltd to Ldld’s Economic Interests • SEQUOIA: Not Necessary to Limit. to L’s Economic Interests (Gen’lly) • SEQ: “Reasonable” to Exercise Strong Political Belief(OLYMPIC: NOT) • SEQ: “Reasonable” to Deny Already-Rejected Tenant (OLYMPIC: NOT)

9. Review Problem 2F(S44-45)Opinion/Dissent Arguments (B) Were L’s Reasons for Denying Consent “Reasonable”? (Trying to Establish Relevant Rules; Not Just Announcing Winner Here) • OLYMPIC: In Comm’l Lease, Shd Be Ltd to Ldld’s Economic Interests • SEQUOIA: Not Necessary to Limit. to L’s Economic Interests (Gen’lly) • SEQ: “Reasonable” to Exercise Strong Political Belief(OLYMPIC: NOT) • SEQ: “Reasonable” to Deny Already-Rejected Tenant (OLYMPIC: NOT) Comments/Best Student Answers to 2D & 2F Posted in Updated Info Memo #2 Later Today

10. NEXT MONDAY/TUESDAY (2/27-2/28)Review Problem 2L(b)(S59-60) • EVERGLADES: Anti-Discrimination Claim • Evidence Supporting/Refuting that S Rejected B b/c he believed B was Muslim or Arab • Last Part of Class Monday  Tuesday • BADLANDS: Reasonableness Claim (Tuesday) • 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?

11. 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

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

13. 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

14. 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 ) • IWH & related doctrines (1960s ) • Note Barash& Guriansimultaneous wJavins • Most States Adopt Detailed LT Statutes (at least for Residential)

15. 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

16. Possible Extension of Doctrines Addressing Habitability Knudsen & DQ2.17 (ACADIA Monday): • If Ldld Rents Neighboring Unit to “Undesirable” Tenant, Is Tenant Entitled to Terminate Lease or Receive Other Remedy… • Under Constructive Eviction Theory? • Under IWH?

17. 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

18. 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?

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

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

21. 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

22. (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 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

23. (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

24. (1)Partial Actual Eviction:In Cases Guriandoesn’t rely on; reads Barashto say 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: Reqmtof Physical Expulsion or LdldUse of Space Means “Partial Actual” has Limited Value

25. (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”

26. (2) 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 (cf. Knudsen) • L’s Failure to Maintain  Effectively Excludes Reasonable T

27. (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

28. (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

29. (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

30. (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 • 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

31. (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

32. (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