PROPERTY D SLIDES

1. PROPERTY D SLIDES 4-21-14

2. Monday April 21: Music Stevie Wonder, The Definitive Collection CRITIQUES READY FOR PICK-UP INFO MEMOS POSTED ON COURSE PAGE IM#3: Eminent Domain IM#4: Wills & Intestacy IM#5: Adverse Possession IM#6: Easements • Rev. Prob. 6B (Biscayne) • Rev. Prob. 6F (Redwood)

3. PROPERTY D: 4/21 Monday Pop Culture Moment Best Use of Leftover Easter Candy Ever: LordofthePeeps.com

4. Selected Issues in Landlord/Tenant Law • Legitimate Interests of Tenants & Landlords II. Habitability & Related Issues A. Overview B. Quiet Enjoyment/Constructive Eviction C. Implied Warranty of Habitability & Related Doctrines D. Problems • Review Problems 7E & 7F • Statutory Problem: Tempest at Teapot

5. 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?

6. Three Relevant Doctrines Exam Prep Note: Claims Overlap & All 3 Can Arise from Same Facts (See Review Problem 6C & Old Exam Q 4U)

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

8. Overview of Quiet Enjoyment/ Constructive Eviction Gurian(P666) (bad omen) • 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

9. 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

10. 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

11. Partial Actual Eviction:In Cases Guriandoesn’t rely on; reads Barashto say very ltd. 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

12. 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)

13. 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

14. 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

15. Constructive Eviction:In Cases (GLACIER DQ95) 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

16. 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

17. 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

18. 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

19. 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

20. 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 has Right to Control T’s Acts • MUST BE “SUBSTANTIAL” (Note 3 P670) • Relatively Meaningless Standard w/o Examples or Explanation • DQ7.04 designed to try to help you think about how to quantify

21. REDWOOD: DQ7.04 REDWOODS & FERNS

22. Redwood: DQ7.04: Meaning of Substantial Interference • 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

23. Selected Issues in Landlord/Tenant Law • Legitimate Interests of Tenants & Landlords II. Habitability & Related Issues A. Overview B. Quiet Enjoyment/Constructive Eviction C. Implied Warranty of Habitability & Related Doctrines D. Problems • Review Problems 7E & 7F • Statutory Problem: Statutory Problem: Tempest at Teapot

24. 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

25. 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)

26. 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 free from rent obligations

27. 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

28. 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 @ P673 Justifying Evolution of Common Law • Lot of State Legislatures Pass Statutes Adopting Versions of IWH (incl FL)

29. 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

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

31. OPERATION OF IWH:1. What Constitutes Breach? Legal Test Varies by State (see N.3 P682) • Some States Tie to Breaches of Housing Code • E.g., Javins • Can’t be de minimis(see footnote 60 on P680) • Some States Adopt More General Legal Test • Florida §83.51 (S158-59) (Part of Statutory Problem Tomorrow) • Housing Codes if Applicable • List of Requirements if No Housing Code

32. OPERATION OF IWH2. Available Remedies? • Generally Traditional Contract Remedies Available • Rescission  No Housing • Damages [Detailed in N.5 P682-83 (unassigned)]  Very Slow

33. 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.6 P684-85) • Withholding Rent/Rent Abatement • T may have to put rent in escrow (see P680 Javinsfn67) • Repair & Deduct • These are the Real Teeth for Tnts

34. OPERATION OF IWH2. Available Remedies? DQ7.06: Remedies in Florida Statutes • §83.56(1) (S160): Termination of Lease (with proper notice) • §83.60 (S163): Withholding rent (with proper notice). 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. • No repair and deduct provision.

35. OPERATION OF IWH:3. Notice & Time to Cure? • Usually to Invoke IWH, T Must (see Note 4 P682): • Provide Notice of Problem to L • (We’ll look at with Statutory Problem) • Allow L Reasonable Time to Cure

36. OPERATION OF IWH4. Waivable? Varies by State & Circumstances (see N.7 P685) • Most States: IWH Not Waivable • Some States: Freely Bargained v. Boilerplate • FL §83.51 (S158-59): Can waive all requirements for single family home & duplex; some not waivable for apt in multi-unit building

37. OPERATION OF IWH4. Waivable?: Policy Debate • Some Relevant Points in N.10 (P686-88) • Arguments for No Waiver Rule Include: • Otherwise, L Might Force Bad Conditions on Ts w/o Bargaining Power • Public Policy re Minimum Quality of Housing

38. OPERATION OF IWH4. Waivable: Policy Debate DQ7.05: Harms to Ts or Market if Non-Waivable? • Limits T freedom of choice by preventing genuine agreements to lease sub-standard housing at below-market prices • Ls may withdraw units from market b/c of increased maintenance costs (condo conversions or abandonment). • BUT may encourage Ls to do preventative maintenance to avoid costly repairs later.

39. OPERATION OF IWH: Actual Impact of Non-Waivable IWH? • Probably less low-end rental housing than in 1970. Empirically very hard to sort out effects of IWH on housing market in light of other social phenomena such as: • Gentrification • Increased household spending on housing • Decreased government housing construction and subsidies • Increase in wealth gaps Qs on Habitability Issues?

40. Final Exam Basically Complete • Your Questions Will Look Like Old Exam Questions in Terms of Form & Level of Difficulty • Coverage: • Chapters 1-3 in One Question or Problem Each • Chapters 5-7 in Two Questions or Problems Each • Several Issues from Review Problems that were Critiqued • Includes Names of Arches & Biscaynesplus Ben + Abraham, Franks, James, Newman, Rosenn, Widen • Exam has Theme …

42. Seven Dwarfs  Seven Questions/Problems Bashful Doc Grumpy Happy Dopey Sleepy Sneezy

43. LOGISTICS & SCHEDULE • Today & Tomorrow: Normal Class Times & Office Hours • Wednesday: Final Class (7:55-9:20 Here) After Class: • I’ll Post Exam Instructions & Syllabus • I’ll Post Info Memo #7 (Chapter 7) • Thursday-Saturday: • Afternoon Office Hours (See Course Page) • I’ll Contact Students as Feedback is Ready on Sample Exam Answers • Saturday : Review Session @ 6:30 pm Here • Will Be Taped & Slides Posted • I’ll Do Last Set of Advice About Each Type of Q • I’ll Take Qs About Exam Technique, Then About Substance • Sunday Office Hours 10-2; 3-7 & E-Mail Qs Until 7

44. SCOPE OF IWH: Possible Extensions of IWH: Policy Qs Assume we are in state where IWH and Key Remedies are entirely products of common law development (no statutes). Should state courts extend IWH & Remedies to …

45. SCOPE OF IWH: Possible Extensions of IWH: Policy Qs DQ7.07 (S169) (Yellowstone): Should We Extend IWH & Remedies to Cover [Small] Commercial Tenants? Done in a Few States; See N.9 P685-86 Rev. Prob. 7E (S182) (Biscayne): Should We Extend IWH Remedies to Substantial Problems with Amenities that are Not Needed for Minimum Habitability Standards (Pool, Dishwasher, etc.)?