PROPERTY D SLIDES National Beer Day & National Housework Day (A Logical Connection if You Think About It)

Thursday April 7 Music (to Accompany Funk v. Funk ): Rick James, Street Songs (1981) featuring “Below the Funk” and “Superfreak” Olympic 2d Critique Due 10:00 a.m. Olympic 1 st Critique: Hard Copies Available from Me Acadia 1 st Critique Returned Tomorrow a.m. Acadia 2d Critique Due Noon Sequoia 1 st Critique Returned by Noon Monday Sequoia 2d Critique NOW Due 10:00 a.m.

Review Problem 5L (S104) Opinion/Dissent Q: Assume Facts Sufficient for E-by-N & Knowing Waiver Everglades: (Dfdt) Range of [Policy] Arguments for Allowing Knowing Waiver of Easement by Necessity Olympic: (Ptff) Range of [Policy] Arguments for Prohibiting Waivers of Easement by Necessity Acadia: Critique

Badlands: Review Problem 6A (Cont’d) NORBECK PASS

Review Problem 6A: Tim’s Party Tim = Tenant & College Student Holds Big Party at Apt.  Noise; Police Arrest 2 Friends No Prior Violations of Lease or Statute Assume Violation of Fl. Stat.: – Tenant's obligation to maintain dwelling unit. The tenant at all times during the tenancy shall … (7) Conduct himself or herself, and require other persons on the premises with his or her consent to conduct themselves, in a manner that does not unreasonably disturb the tenant's neighbors or constitute a breach of the peace. Can Linda (Landlord) Evict Tim for the Party?

Review Problem 6A: Tim’s Party Statute Gives Two Categories Termination of rental agreement … (2) If the tenant materially fails to comply with §83.52 or material provisions of the rental agreement, other than a failure to pay rent, or reasonable rules or regulations, the landlord may: (a) [Terminate immediately] If such noncompliance is of a nature that the tenant should not be given an opportunity to cure it or if the noncompliance constitutes a subsequent or continuing noncompliance within 12 months of a written warning by the landlord of a similar violation (b) [Give Seven Days to Cure & Terminate if Not Cured or Repeated w/in one Year] If such noncompliance is of a nature that the tenant should be given an opportunity to cure it, …

Review Problem 6A: Tim’s Party Example of Common Statutory Problem Statute Creates Two Categories; Into Which Category Does Tim’s Conduct Fit? Common Types of Argument : (I)Literal (I)Literal : Within language of either (a) or (b)? [Party really neither] (II)Comparison (II)Comparison : More like terms listed in (a) or in (b)? Characterization issue like description of scope of easement Policy (III) Policy: Should this behavior (without more ) be enuf for eviction Think about relevant interests of both Ldld & Tnt)

Review Problem 6A (I)Literal : (I)Literal : Within language of either (a) or (b)? (a)Examples … that the TNT should not be given an opportunity to cure include, but are not limited to, destruction, damage, or misuse of the LDLD's or other TNTs' property by intentional act or a subsequent or continued unreasonable disturbance. (b)Examples [that TNT should be given opportunity to cure] include, but are not limited to, activities in contravention of the lease or this act such as having or permitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permitting such parking; or failing to keep the premises clean and sanitary.

Review Problem 6A (I)Literal : (I)Literal : Within language of either (a) or (b)? Common Problems misuse of the LDLD's or other TNTs' property continued unreasonable disturbance. (a)Examples … that the TNT should not be given an opportunity to cure include, but are not limited to, destruction, damage, or misuse of the LDLD's or other TNTs' property by intentional act or a subsequent or continued unreasonable disturbance. (b)Examples [that TNT should be given opportunity to cure] include, but are not limited to, activities in contravention of the lease or this act such as having or permitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permitting such parking; or failing to keep the premises clean and sanitary.

Review Problem 6A: Qs 1 & 2 (II) Comparison: (II) Comparison: More like items listed in (a) or (b)? Characterization Exercise (a) … destruction, damage, or misuse of the LDLD's or other TNTs' property by intentional act or a subsequent or continued unreasonable disturbance. (b) … having or permitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permitting such parking; or failing to keep the premises clean and sanitary. STRONG D.ROBERTS EXAMPLE: (b) List = More Easily Fixed OTHERS?

Review Problem 6A: Qs 3 & 4 (III) Policy: (III) Policy: Should this behavior be sufficient for a landlord to evict without more? (Think about relevant interests of both Ldlds & Tnts) EXAMPLES?

Rev. Prob. 6A: Qs 3 & 4 (III) Policy: Should this behavior be sufficient for a landlord to evict without more? General Policy Concerns: What’s at Stake TNT in Q: Housing (Shelter; Psychic Ties; Convenience); Fairness LDLD & Other TNTs: Safety; Quiet; Preservation of Building & Personal Property; Financial Interests

Rev. Prob. 6A: Qs 3 & 4 (III) Policy: Should this behavior be sufficient for a landlord to evict without more? General Policy Concerns: What’s at Stake TNT in Q: Housing; Fairness LDLD & Other TNTs: Safety; Quiet; Preservation of Property; $$$ Note Overlap w Other Types of Arguments : Policy Concerns Can Explain: Why Literal Terms Should be Read to Include Conduct (or Not) Significance of Comparisons

Review Problem 6A: SKILLS & EXAM TECHNIQUE I have given this problem both as a short exam problem and as a written assignment in the multi-part format I gave you. I’ll Post Both Sets of Best Student Answers. For both forms, two other possible tasks: Strongest Position (Q5) Additional Facts (Q6&7)

Review Problem 6A: Q5 SKILLS & EXAM TECHNIQUE Strongest Argument (Q5): Helpful on Exams to Conclude a Discussion by Briefly Arguing Which Overall Position is Strongest Central to Opinion/Dissent Q (XQ3): Try to Do for Each Contested Topic & Overall To Substantially Upgrade Your Answers Do Overall for Short Problems (XQ2) Do for Major Contested Issues in Issue-Spotters (XQ4) Today Leave for You

Review Problem 6A: Qs 6 & 7 SKILLS & EXAM TECHNIQUE Additional Useful Facts (Qs 6 & 7): As We’ve Discussed, Often Helpful on Exams to Identify Unstated Facts That Might Affect the Outcome IF – They Aren’t Inconsistent with Stated Facts – They Don’t Drastically Change the Problem. Here, e.g., – Don’t add conduct that itself leads to eviction (damage) – Don’t add facts that completely eliminate T responsibility (tied up in closet whole time; extreme duress) – You Briefly Clarify Why They’re Relevant

Review Problem 6A: Qs 6 & 7 PRELIMINARY Q: WHY IS “SPECULATIVE” A DIRTY WORD? Additional Useful Facts (and Why) (one fact per person please!)

CHAPTER 6 PROBLEMS/SKILLS Policy Arguments on Narrow Issue Policy Arguments on Narrow Issue Rev Prob 6E: DF Fri/Tue Rev Prob 6E: DF Fri/Tue Rev Prob 6F: Last Class Rev Prob 6F: Last Class Florida Statutory Question Like 6A (Prepare Literal; Comparison; Policy) Florida Statutory Question Like 6A (Prepare Literal; Comparison; Policy) Rev Prob 6B: Last Critique Problem Tomorrow Rev Prob 6B: Last Critique Problem Tomorrow Rev Prob 6C: DF Fri/Tue Rev Prob 6C: DF Fri/Tue Part of Tempest Problem Next Thursday Part of Tempest Problem Next Thursday

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

LDLD SELECTION OF TNTs & TNT RIGHT TO TRANSFER 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)

LDLD SELECTION OF TNTs & TNT RIGHT TO TRANSFER 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

LDLD SELECTION OF TNTs & TNT RIGHT TO TRANSFER Two Relevant Time Frames At Start of New Lease (NOTIO) – 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

LDLD SELECTION OF TNTs & TNT RIGHT TO TRANSFER Two Relevant Time Frames At Start of New Lease (NOTIO) 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)

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 Lease Terms Sublease:

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

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

Tenant’s Right to Transfer: Reasonableness Issues Common provision: “No transfer w/o consent of landlord” 1.“Reasonable” Withholding of Consent 2.Should Courts Imply “Reasonableness”? a.Commercial Tenancies b.Residential Tenancies 3.Waiver Permissible?

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?

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)

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