2-23-17 NATIONAL BANANA BREAD DAY PROPERTY A SLIDES 2-23-17 NATIONAL BANANA BREAD DAY

Lunch Tomorrow Now On Course Page: Meet on Bricks @ 12:25 Music to Accompany Javins: Simon & Garfunkel, Greatest Hits (1972) featuring “Bridge Over Troubled Water” (1970) Lunch Tomorrow Meet on Bricks @ 12:25 Criddle * Harreveld Monteiro * Pollitt Sirenord Now On Course Page: Revised Chapter 2 Supplement (Edits to Last 2 Pages) In Exam Section at Bottom: Instructions for Submitting Sample Answers for My Review Banks of Old Exam QI, QIII, QIV

Review Problem 2F OLYMPIC SEQUOIA (for Affirmance) (for Reversal) EEL GLACIER SEQUOIAS

Review Problem 2F(S44-45) Opinion/Dissent: General Background State Supreme Court in Prior Case: Where Commercial Lease Required Landlord’s Consent to Transfer, the Landlord could not withhold consent Unreasonably; Did not rule on whether T could expressly waive this reasonableness req’mt Lease Here: “Tenant may not transfer its interest in this lease without permission of the Landlord, which permission maybe withheld for any reason at all.” L refuses T attempt to transfer lease rights to PP; “no problem” w financial credentials BUT: CEO of PP was “outspoken public advocate” of political positions L “sharply disagreed with” 5 years earlier, had denied same lease to PP

Review Problem 2F(S44-45) Opinion/Dissent: Lower Courts Trial Ct (in favor of Liz). Waiver of “reasonableness” valid if comm’l lease/arm’s length agmt. Anyway, L’s refusal “reasonable” (even in comm’l lease): No duty to accept a transfer to already-rejected tenant Ldld should have right to exercise strongly-held political beliefs. Intermediate Ct App (Reversing). “Reasonableness” implied in all leases and non-waivable “Reasonableness” in comm’l leases ltd to concerns related to Ldld’s economic interests.

Review Problem 2F(S44-45) Opinion/Dissent Arguments Is Reasonableness Req’mt Waivable in Comm’l Lease? SEQUOIA Arguments: Yes if Arm’s Length Agreement OLYMPIC Arguments: Never

Review Problem 2F(S44-45): Opinion/Dissent Arguments (B) Were L’s Reasons for Denying Consent “Reasonable”? Trying to Establish Relevant Rules; Not Just Announcing Winner Here NOT Especially Helpful Here (As Opposed to My Other Types of Exam Qs) to Speculate on Reasons Beyond What You Are Told re Why L Might Want to Exclude PP/MMM TCt found prior rejection/political views sufficient w/o more; CtApp disagreed Concern that customers might boycott PP inconsistent w info about finances Concern that people might protest at site might be “reasonable” b/c raises economic concerns, but not given as reason by L or addressed by lower courts

Review Problem 2F(S44-45) Opinion/Dissent Arguments (B) Were L’s Reasons for Denying Consent “Reasonable”? (Trying to Establish Relevant Rules; Not Just Announcing Winner Here) OLYMPIC: In Comm’l Lease, Shd Be Ltd to Ldld’s Economic Interests SEQUOIA: Not Necessary to Limit. to L’s Economic Interests (Gen’lly) SEQ: “Reasonable” to Exercise Strong Political Belief (OLYMPIC: NOT) SEQ: “Reasonable” to Deny Already-Rejected Tenant (OLYMPIC: NOT)

Review Problem 2F(S44-45) Opinion/Dissent Arguments (B) Were L’s Reasons for Denying Consent “Reasonable”? (Trying to Establish Relevant Rules; Not Just Announcing Winner Here) OLYMPIC: In Comm’l Lease, Shd Be Ltd to Ldld’s Economic Interests SEQUOIA: Not Necessary to Limit. to L’s Economic Interests (Gen’lly) SEQ: “Reasonable” to Exercise Strong Political Belief (OLYMPIC: NOT) SEQ: “Reasonable” to Deny Already-Rejected Tenant (OLYMPIC: NOT) Comments/Best Student Answers to 2D & 2F Posted in Updated Info Memo #2 Later Today

NEXT MONDAY/TUESDAY (2/27-2/28) Review Problem 2L(b)(S59-60) EVERGLADES: Anti-Discrimination Claim Evidence Supporting/Refuting that S Rejected B b/c he believed B was Muslim or Arab Last Part of Class Monday  Tuesday BADLANDS: Reasonableness Claim (Tuesday) S has Legit. Interest in Whether B Can Afford to Pay Rent Why Might Rejection Be Unreasonable Anyway? What Evidence Here is Relevant? What Additional Facts Might be Relevant?

Chapter 2. Leased But Not Last: Selected Issues in Landlord/Tenant Law The Importance of Context Ldld’s Right to Exclude (& Legitimate Interests of Tnts) Habitability & Related Issues A. Overview B. Quiet Enjoyment/Constructive Eviction C. Implied Warranty of Habitability & Related Doctrines D. Problems

Habitability = Duties of LDLD re Physical Condition/Usability of Premises Traditional View LDLD Guarantees TNT has Legal Access to Premises No Duties re Physical Condition Unless Specifically Stated in Lease Based in Agrarian View of Leases

Habitability = Duties of LDLD re Physical Condition/Usability 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/Usability 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)

For Each Cause of Action Discussed, Responsible For Sense of … Habitability = Duties of LDLD re Physical Condition/Usability of Premises For Each Cause of Action Discussed, Responsible For Sense of … Nature & Extent of LDLD Duties Remedies Available to TNT Waivability

Possible Extension of Doctrines Addressing Habitability Knudsen & DQ2.17 (ACADIA Monday): If Ldld Rents Neighboring Unit to “Undesirable” Tenant, Is Tenant Entitled to Terminate Lease or Receive Other Remedy… Under Constructive Eviction Theory? Under IWH?

Chapter 2. Leased But Not Last: Selected Issues in Landlord/Tenant Law The Importance of Context Ldld’s Right to Exclude (& Legitimate Interests of Tnts) Habitability & Related Issues A. Overview B. Quiet Enjoyment/Constructive Eviction C. Implied Warranty of Habitability & Related Doctrines D. Problems

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 Direct Physical Exclusion Non-Physical or Indirect Exclusion Whole Premises [Actual Eviction] (2) Constructive Eviction Part of Premises (1) Partial Actual Eviction (3) Partial Constructive Eviction (Some States) Exam Prep Note: Claims Overlap & All 3 Can Arise from Same Facts (See Review Problem 2K & 2016 Exam Q 4(a))

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 Gurian doesn’t rely on; reads Barash to 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: Reqmt of Physical Expulsion or Ldld Use 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