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This presentation discusses the availability of repair and deduct and rent-withholding remedies for commercial tenants. It explores different court positions and provides arguments supporting various rules. Case allegations are analyzed to demonstrate the application of these remedies in commercial leases.
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PROPERTY A SLIDES 3-2-17 (SAME DAYS AS LAST YEAR)
Music to Accompany Tempest at the TEAPOTBeauty and the Beast Soundtrack (1991) DF Today in Room A110A On Course Page Later Today Updated Info Memo #3 with: • NY Roommate Law • Write-Up of Rev Probs 2H, 2J, 2L(b)
Review Problem 2J(S57-58) • ACADIA: Arguments in Support of Trial Court Position (Remedies Not Implied in Comm’l Lease) • BADLANDS: Arguments in Support of Appellate Court Majority Position (Both Remedies Implied as Default Rule) • EVERGLADES: Arguments in Support of Concurring/ Dissenting Position = Non-Waivable Right • Just for Minimum Habitability • Not Available to Large Sophisticated Comm’lTnts
Rev. Prob. 2J: Legal Background • State common law says repair-and-deduct & rent-withholding remedies avail for breaches of minimal habitability in residential leases; hasn’t ruled on availability in other contexts. • State Supreme Court grant of review: When, if ever, these remedies should be available for commercial tenants. • Lowrr courts provide three possible positions (lots of other possibilities).
Rev. Prob. 2J: Task (On Exam) • Q Presented: When, if ever, repair-and-deduct & rent-withholding should be available for commercial tenants. • Lowrr courts provide three possible positions (lots of other possibilities). • TASK: Write drafts of analysis sections of two opinions. For each: • Choose one possible rule (doesn’t have to be one chosen by lower cts) • Provide arguments supporting choice, including why better than at least some alternatives (especially your other choice). • For sense of what these look like in writing, see posted CMA for 2F online, & for this problem later today. More examples soon.
Rev. Prob. 2J: Task (On Exam) • Q Presented: When, if ever, repair-and-deduct & rent-withholding should be available for commercial tenants. • Lowrr courts provide three possible positions (lots of other possibilities). • PRIMARY FOCUS: Choose and defend two possible rules. • Use of Facts/Record of Case Described in Problem: • Some cases we’ve read: (Shack, JMB, Funk, Javins) lay out rules covering far more than facts in front of them. You can do this. • Can use facts of problem as example or counterexample. • Check specific instructions re application of rule to record. • 2J says briefly apply your rules to allegations here. Primarily to help me understand what your rule is.
Rev. Prob. 2J: Exercise Today • Q Presented: When, if ever, repair-and-deduct & rent-withholding should be available for commercial tenants. • Lowrr courts provide three possible positions (lots of other possibilities). • EXERCUSE TODAY: 3 sets of arguments on specific issues with panels taking positions I gave you. • These could be part of a strong written answer depending on rules chosen. • I’m just working w people on relevant panels to get out some arguments on each side. • If you want to check on other/different arguments or have other Qs, first look at posted CMA and then e-mail me if you want further clarification.
Rev. Prob. 2J: Allegations Here • Posture: Declaratory Judgment Action dismissed on pleadings. • Have to treat T’s allegations as true. • If you think you need more info after you set out rules, explain significance of missing info & remand to let lower cts handle. • Background Allegations: • T runs health spa business. • Enters 12-year lease for two-story stand-alone building in a very large multi-building suburban mall owned/run by L • Lease does not refer to rent-withholding or repair-and-deduct remedies • Common Problems: Multi-Unit Building; T Sophistication; L Size.
Rev Prob 2J(1):Availability of Repair & Deduct as Remedy in Comm’lLease • Relevant Allegations (Think About Why I Include) • Fountain next to building; lease provides that it is substantial/material part of leased premises [not common area] and that landlord will maintain it “in good working order” • 10/13 Fountain stops working; needs replacement part. • 10/13-3/14: Ldld repeatedly tells Tnt that they have ordered part but it’s out of stock. • 3/14: Tnt finds part on internet and orders herself for $2300 retail price and had her staff install. Now claims repair & deduct rights.
Rev Prob 2J(1):Availability of Repair & Deduct as Remedy in Comm’lLease ACADIA: Papiasvili; Burns; Mermell Only Available if Expressly Provided in Lease BADLANDS: Strong, Nugroho, Neuman As Default Rule
Rev Prob2J(2):Availability of Rent Withholding as Remedy in Comm’lLease for Violations of Minimal Habitability/Usability • Relevant Allegations (Think About Why I Include) • Lease unclear on responsibility for basic maintenance. T assumed L responsible for systems serving entire complex (plumbing, electricity, A/C) • 12/13: water pressure on 2d floor of bldg. drops; T needs to carry water upstairs for services. L determines T didn’t cause problem. • L tried repeatedly to fix until 3/14. Then L announced it had no responsibility to fix. • T gave notice of intent to withhold rent until plumbing fixed.
Rev Prob2J(2):Availability of Rent Withholding as Remedy in Comm’lLease for Violations of Minimal Habitability/Usability (Assume Small Commercial Tenants) EVERGLADES: Gray, LaFosse, Montano Non-Waivable Term ACADIA: Braun, Harreveld, Criddle Only Available if Expressly Provided in Lease
Rev Prob2J(3):Availability of Both Remedies to Large Sophisticated Tenants (Can Assume T Here is Not) BADLANDS: Cordell, Delancy, Boughton Available As Default Rule EVERGLADES: Maryanoff; Sparhawk; Sirenord Not Available (presumably OK if explicitly in lease)
Tempest at the Teapot: Revised Assignments for Friday 3/3 • OLYMPIC (from Argument A1): • Two Possible Problems with 1/5 Notice: • L Delivered It on Day Rent Was Due • Listed Date Not 3 Days from Delivery (excluding Weekend): • Original Version on S55 Says: “January 18, 2016” • Amended Version I Gave You on Cpourse Page Says: “January 8, 2017” • L did not file lawsuit until 1/11/17. Whaarguments do you see abut whether the 1/5 notice should be considered adequate despite the flaws?
Tempest at the Teapot: Revised Assignments for Friday 3/3 • From Argument B2: • Assume that the aerial violated Fl. Stat. §83.52, but that the May 2016 notice did not serve as a sufficient “right to cure” notice regarding the aerial. • Can M evict F for the aerial immediately (without giving a right to cure notice) under §83.56(2)(a)? • ACADIA: Arguments for Tenant • BADLANDS: Arguments for Landlord
Tempest at the Teapot: Revised Assignments for Friday 3/3 • SEQUOIA (from Argument A2 re Roaches): • What Requirements Are Created re Extermination of Cockroaches by the Miami-Dade Housing Code? • How Do Those Requirements Interact with the Provisions of the Lease and §§83.47 & 83.51 of the Florida Statute • EVERGLADES(from Argument B1): Arguments re Whether the Aerial Violates §83.52 of the Florida Statute