PROPERTY E SLIDES

1. PROPERTY E SLIDES 04-11-13

2. LOGISTICS: ON COURSE PAGE • Adjustments to Reflect Final Coverage Choices • Updated Assignment Sheet • Updated Versions of Sample Exam Qs & Best Answers • Information Memos for Chapters 1 & 2 • Exam Version of Syllabus (with other Exam Prep Materials) • Detailed Instructions for Review Problem 6D for Monday (Let Me Know if Qs)

3. LOGISTICS: GENERALLY • If you need help with course selection, I’ll be at school much of next several days. On weekdays, just drop by; E-Mail to set a time on the Weekend. • Monday will be a long class • Lot of Review Problems in final six classes; Intended to help you with Exam Prep • Deadline for Sample Exam Answers is Sat. 4/27 @ 9pm; instructions on course page

4. CHAPTER 6 PART B:HABITABILITY ISSUES • Overview • Quiet Enjoyment/Constructive Eviction • Implied Warranty of Habitability & Related Doctrines

5. OPERATION OF IWH • What Constitutes Breach? • Available Remedies? • Notice & Time to Cure Required? • Waivable? • Prohibition of Retaliation?

6. OPERATION OF IWH:1. What Constitutes Breach? Legal Test Varies by State (see Note 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 • Housing Codes if Applicable • List of Requirements if No Housing Code

7. OPERATION OF IWH2. Available Remedies? • Generally Traditional Contract Remedies Available [in Note 5 P682-83 (unassigned)] • Rescission • Damages • Many States Add More Tenant-Friendly Remedies (see Note 6 P684-85) • Withholding Rent/Rent Abatement • T may have to put rent in escrow (see P680 fn67) • Repair & Deduct

8. OPERATION OF IWH2. Available Remedies? DQ98: Remedies in Florida Statutes • §83.56(1): Termination of Lease (with proper notice) • §83.60: Withholding rent (with proper notice). If defending a suit for non-payment of rent, tenant must pay amount due into court registry to maintain claim. • No repair and deduct provision.

9. OPERATION OF IWH:3. Notice & Time to Cure? • Usually to Invoke IWH, T Must (see Note 4 P682): • Provide Notice of Problem to L • Allow L Reasonable Time to Cure • Significance: • Some States: No Breach Until After • Some States: Breach as Soon as Habitability Problem Occurs, but Remedies Limited w/o

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

11. OPERATION OF IWH4. Waivable: Policy Debate • Some Relevant Points in Note 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 • DQ97: Possible Harms to Ts or Market if Non-Waivable?

12. OPERATION OF IWHConsequences if No Waiver • 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.

13. 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

14. OPERATION OF IWH5.Prohibition of Retaliation? Generally L cannot punish T (eviction, rent increase) for complaining to L or Govt re Habitability Issues • Need to protect more vulnerable party in long term relationship when you provide certain rights • More Common for Residential than Commercial • Operation varies depending on state cases/statutes • See Note 8 P685, Fl Stat §83.64 • Not responsible for way rules/statutes work this year

15. OPERATION OF IWH5.Prohibition of Retaliation? Generally L cannot punish T (eviction, rent increase) for complaining to L or Govt re Habitability Issues • Need to protect more vulnerable party in long term relationship when you provide certain rights • More Common for Residential than Commercial • Operation varies depending on state cases/statutes • See Note 8 P685, Fl Stat §83.64 • Not responsible for way rules/statutes work this year

16. SCOPE OF IWH: Compare to Other Related Doctrines 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

17. SCOPE OF IWH: Compare to Other Related Doctrines Constructive Eviction • DQ97 asks about advantages of IWH • Key points made in Note 2 [P681-82] • Fewer advantages to IWH if state allows Partial Constructive Eviction • Problem doesn’t have to affect whole apartment • T doesn’t have to move out completely

18. SCOPE OF IWH: Possible Extensions of IWH Policy Qs for You to Think About • Extension to Small Commercial Tenants? • Done in a Few States • See DQ99 & Note 9 P685-86 • Extension of IWH Remedies to Problems with Amenities that are Not Needed for Minimum Habitability Standards (Pool, Dishwasher, etc.)? See Rev. Prob. 6B

19. CHAPTER 6 PART B:HABITABILITY ISSUES • Overview • Quiet Enjoyment/Constructive Eviction • Implied Warranty of Habitability & Related Doctrines • Questions?

20. CHAPTER 6 PART C:LIMITS ON TENANT SELECTION • Overview • Right to Transfer • Anti-Discrimination Law

21. OVERVIEW OFLIMITS ON TENANT SELECTION L Ability to Select Ts = Significant Aspect of Property Rights • Can See as Part of Right to Exclude • Can See as Right to Use Land in Way that L Sees as Most Beneficial (Economically & Otherwise)

22. OVERVIEW OFLIMITS ON TENANT SELECTION L Ability to Select Ts = Significant Aspect of Property Rights Today: Limits on Right to Select to Further Other Important Interests • Anti-Discrimination Law: Inclusion & Access • T’s Right to Transfer • Alienability • T’s Economic & Fairness Interests

23. OVERVIEW OFLIMITS ON TENANT SELECTION Two Relevant Time Frames • At Start of New Lease • Common Law: L Had Complete Discretion • Today Limited by Anti-Discrimination Statutes (Federal & State) • During Lease: If T Wishes to Transfer, L Consenting to the Transferee

24. OVERVIEW OFLIMITS ON TENANT SELECTION Two Relevant Time Frames • At Start of New Lease • During Lease: If T Wishes to Transfer, L Consenting to the Transferee • Common Law: Governed by Lease Terms • Today Limited by • Anti-Discrimination Statutes (Federal & State) • Qs re “Reasonableness” of Withholding Consent (State Law)

25. CHAPTER 6 PART C:LIMITS ON TENANT SELECTION • Overview • Right to Transfer • Anti-Discrimination Law

26. TENANT’S RIGHT TO TRANSFER: ASSIGNMENT v. SUBLEASE Two Types of Transfers • Assignment: • T Transfers Entire Lease Term to “Assignee” • T Still Responsible to L, BUT L and Assignee Also Generally Directly Responsible to Each Other for LeaseTerms • Sublease:

27. TENANT’S RIGHT TO TRANSFER: ASSIGNMENT v. SUBLEASE Two Types of Transfers • Assignment: • Sublease: • T Transfers Less Than Entire Lease Term to “Sublessee” • T Still Responsible to L; Sublessee and L Generally NOT Directly Responsible to Each Other for Lease Terms

28. TENANT’S RIGHT TO TRANSFER: BACKGROUND RULES • T Right to Transfer Unless Lease Says Otherwise • Limits in Lease Read Narrowly: “No Subleases” = Assignments Allowed • Part of Pro-Alienation Policy Favoring Easy Transfer of Land • Like Some Estates & Future Interests Rules • Like Repose Idea in Adverse Possession

29. Tenant’s Right to Transfer: Reasonableness Issues Common provision: “No transfer w/o consent of landlord” • “Reasonable” Withholding of Consent • Should Courts Imply “Reasonableness”? • Commercial Tenancies • Residential Tenancies • Waiver Permissible?

30. Tenant’s Right to Transfer:Definition of of “Reasonable” • Some leases will say “No transfer without consent of L, which will not be withheld unreasonably.” • Some states imply “reasonableness” into leases requiring L’s consent to transfer • What is “reasonable” in these contexts?

31. Tenant’s Right to Transfer:Definition of of “Reasonable” • What is “reasonable” in these contexts? • Funk: look to what a “reasonable man in the L’s position” would do. (Thanks)

32. Tenant’s Right to Transfer:Definition of of “Reasonable” LEGITIMATE CONCERNS • Assurances re Rent • Assurances re Use & Care of Premises • Proposed Use: • Need for Alterations • Legality • Compatible w Other Tenants

33. Tenant’s Right to Transfer:Definition of of “Reasonable” NOT LEGITIMATE CONCERNS • Personal Taste, Sensibility or Convenience (Funk) • Lever to Change Lease Terms (esp. T expectations re $) (Funk) • Other Cases: Collateral Economic Advantage (e.g., Filling Other Units) • Note: In Appropriate Context You Can Argue That Cases We’ve Read Are Wrong

34. Tenant’s Right to Transfer:Definition of of “Reasonable” HYPOS: DQ101(b/c) & Rev. Prob. 6F(B) • Bait & Switch (T wants to transfer to previously rejected applicant; no financial reason to reject) • Religious or Political Objections • We’ll Do Arguments Next Tuesday w Everglades; Yosemites should jump in if you have ideas about.

35. Tenant’s Right to Transfer • Lease: “No Transfer w/o L’s Consent” • “Reasonable” Withholding of Consent • Should Courts Imply “Reasonableness”? • Commercial Tenancies • Residential Tenancies • Waiver Permissible?

36. Tenant’s Right to Transfer:Imply Reasonableness (Comm’l)? Arguments FOR Implying Reasonableness • Importance of Alienation • General Reqmt. of Good Faith & Fair Dealing • Protects L’s Legitimate Concerns (esp. re $$$) • Prevents L Using Transfer to Extort Better Lease Terms

37. Tenant’s Right to Transfer:Imply Reasonableness (Comm’l)? Arguments Against Implying Reasonableness • Rewriting Contract • Interferes w L’s Control of Own Property • May Lead to Lot of Litigation

38. Tenant’s Right to Transfer • Lease: “No Transfer w/o L’s Consent” • “Reasonable” Withholding of Consent • Should Courts Imply “Reasonableness”? • Commercial Tenancies • Residential Tenancies • Waiver Permissible?

39. Tenant’s Right to Transfer:Imply Reasonableness (Residential)? Why Different if Residential Lease? • Maybe L more personally involved  More L Control • If L lives on premises  More L control • T may have less knowledge and/or bargaining power  Less L Control • More legit. reasons to reject in comm’l setting More States Imply in Residential Setting

40. Tenant’s Right to Transfer • Lease: “No Transfer w/o L’s Consent” • “Reasonable” Withholding of Consent • Should Courts Imply “Reasonableness”? • Commercial Tenancies • Residential Tenancies • Waiver Permissible?

41. Tenant’s Right to TransferWaiver Permissible? • Restatement says Waiver OK if “freely bargained for.” • Some States say NO. • We’ll Do Arguments w DENALI in Context of Review Problem 6F(A) Starting Late on Monday; Again Yosemites should jump in if you have ideas

42. CHAPTER 6 PART C:LIMITS ON TENANT SELECTION • Overview • Right to Transfer • Anti-Discrimination Law

43. LIMITS ON TENANT SELECTIONFROM ANTI-DISCRIMINATION LAW • Always Statutory • Relevant Federal Statutes • FHA §3604 (S11) • Civil Rights Act of 1866 §§1981-82 (S153) • State Statutes Often Have Additional or Different Coverage • Can Look Up on Lawyering Q if Relevant • Otherwise, Not Expected to Address

44. RELEVANT FEDERAL ANTI-DISCRIMINATION LAW

45. ZION: Sorenson & DQ102-04 TEMPLES & TOWERS OF THE VIRGIN

46. ZION: DQ102 Evidence in Sorenson • What evidence supported the plaintiff in Sorenson? • What evidence supported the defendant? • Whose story do you find more convincing (and why)?