PROPERTY D SLIDES

PROPERTY D SLIDES 4-12-16 National Grilled Cheese Sandwich Day

Tuesday April 12: Music Stevie Wonder, The Definitive Collection HARD COPIES OF E-MAILED ACADIA & SEQUOIA CRITIQUES AVAILABLE FOR PICK-UP INFO MEMOS POSTED ON COURSE PAGE IM#2: Right to Exclude IM#3: Eminent Domain

Selected Issues in Landlord/Tenant Law • Legitimate Interests of Tenants & Landlords A. Eviction Under the Florida Statutes B. The Right to Transfer (Cont’d) II. Habitability & Related Issues

TNT’s Right to Transfer: DQ6.01 (Sequoia) • Lease: “No Transfer w/o L’s Consent” • “Reasonable” Withholding of Consent • Should Courts Imply “Reasonableness”? • Commercial Tenancies • Residential Tenancies • Should Waiver Be Permissible?

Tenant’s Right to Transfer: DQ6.01Waiver Permissible? • Restatement says Waiver OK if “freely bargained for.” • Some States say NO. Qs on Right to Transfer?

Selected Issues in Landlord/Tenant Law ADJUSTMENTS DUE TO TIME CONSTRAINTS • No Longer Eligible for Testing: • Policy Qs re Whether Provisions Should Be Waivable • Should Know Where States Differ on Existence of Waiver • Details of Notice Requirements • Should Know Where Some Form of Notice Required

Selected Issues in Landlord/Tenant Law ADJUSTMENTS DUE TO TIME CONSTRAINTS • Updated Description of Assignments on Course Page • Some Notes & DQs Dropped • “Tempest at Teapot” Problem Assignments Redone • I Gave You Relevant Statutory/Housing Code Provisions • Don’t Have to Scan Rest for Possible Application • Provisions Listed = Testable for Final Exam • Now Not Asking You to Represent Clients. Instead: • Identify/Explain Relevant Statutory Language • Arguments re Possible Meaning (Where Unclear)

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 • Tempest at the Teapot Statutory Problem (Thursday) • Review Problems 6F & 6G (Friday)

Habitability = Duties of LDLD re Physical Condition 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

Habitability = Duties of LDLD re Physical Condition 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

Habitability = Duties of LDLD re Physical Condition 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& Gurian simultaneous w Javins • Most States Adopt Detailed LT Statutes (at least for Residential)

Habitability = Duties of LDLD re Physical Condition of Premises Responsible For Sense of … • Nature & Extent of LDLD Duties • Remedies Available to TNT • Waivability

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?

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

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

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

(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

(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

(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

(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”

(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

(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

(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

(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

(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

(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

(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

Quiet Enjoyment Claims: Actionable Interference • Must Be Attributable To L (Note 4 P609-10) • Hard Qs Involve Actions of Other Tenants • Trend: L Responsible if has Right to Control T’s Acts • MUST BE “SUBSTANTIAL” (Note 3 P609) • Relatively Meaningless Standard w/o Examples or Explanation • DQ6.04 designed to try to help you think about how to quantify

EVERGLADES: DQ6.04 EGRET IN MANGROVE SWAMP

Everglades: DQ6.04: 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

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

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@ 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

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 Statutes Adopting 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) • Some States Adopt More General Legal Test • Florida §83.51 (S116-17)(Part of Statutory Problem Tomorrow) • Housing Codes Where Applicable • List of 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 Very Slow

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) • Withholding Rent/Rent Abatement • T may have to put rent in escrow (see P619 Javinsfn67) • Repair & Deduct • These are the Real Teeth for Tnts

OLYMPIC: DQ6.06: Available Statutory Remedies for Ldld Breach re Habitability? EEL GLACIER

OPERATION OF IWH2. Available Remedies? OLYMPIC DQ6.06: Remedies in Florida Statutes • §83.54 (S118): Civil Suit. • §83.56(1) (S118): Termination of Lease (with proper notice) • §83.60 (S121): Withholding Rent: Procedural Requirements?

OPERATION OF IWH2. Available Remedies? OLYMPIC DQ6.06: Remedies in Florida Statutes • §83.54 (S118): Civil Suit. (per Wooodbury) • §83.56(1) (S118): Termination of Lease (with proper notice) • §83.60 (S121): 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 • Not Responsible for Details • 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 all requirements for single family home & duplex; some not waivable for apt in multi-unit building • Policy Debate Over Waivability Now Outside Scope of Course; See Note 11 (P625-27) If You’re Interested

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 …

SCOPE OF IWH: Possible Extensions of IWH: Policy Qs DQ6.07 (Sequoia Thursday): Should We Extend IWH & Remedies to Cover [Small] Commercial Tenants? Done in a Few States; See N.10 P624-25 Rev. Prob. 6F (S140) (Acadia Friday): Should We Extend IWH Remedies to Substantial Problems with Amenities that are Not Needed for Minimum Habitability Standards (Pool, Dishwasher, etc.)?

SCOPE OF IWH: Possible Extensions of IWH: Policy Qs Knudsen & DQ6.08 (Sequoia Thursday): If Ldld Rents Neighboring Unit to “Undesirable” Tenant, Is Tenant Entitled to Terminate Lease or Receive Other Remedy… • Under IWH? • Under Constructive Eviction Theory?

PROPERTY D SLIDES