2-27-17 NATIONAL POLAR BEAR DAY NATIONAL KAHLUA DAY PROPERTY A SLIDES 2-27-17 NATIONAL POLAR BEAR DAY NATIONAL KAHLUA DAY

MONday Pop Culture QUIZ Name the Musical Group: Music to Accompany Knudsen Amy Winehouse, Back to Black (2007) featuring “You Know I’m No Good” Last Lunch Today Meet on Bricks @ 11:55 Delgado * Dilts * Hynes Mitchell * Piccolino Poo * S. Stone MONday Pop Culture QUIZ Name the Musical Group: 1st Billboard #1 Hit in 1958 Won 5 Grammys; Nominated for 8 More Featured in Major Studio Motion Picture in 2011

MONday Pop Culture QUIZ Name the Musical Group: 1st Billboard #1 Hit in 1958 Won 5 Grammys; Nominated for 8 More Featured in Motion Picture in 2011

Previously in Property A Intro to XQ3: Opinion/Dissent Chapter 2: Tenant Selection Anti-Discrimination Law Intro to Operation of the Statutes Proof of Discriminatory Intent Sorenson & Rev Prob 2D Right to Transfer Funk & [Implied] Reasonableness Term Rev Prob 2F

Previously in Property A Chapter 2: Habitability Overview Quiet Enjoyment & Constructive Eviction Operation of the Causes of Action Barrash & Gurian as Examples

Habitability & Eviction: Review Problems DF This Week: 2016 Question IV Parts a & b (Both) Tempest at the Teapot (Both) In-Class Tues/Thurs/Fri (ALL PANELS)  Additional Instructions on Course Page Review Problem 2J (Opinion/Dissent Habitability) In-Class Thurs (ACADIA/BADLANDS/EVERGLADES) DF Next Week Review Problem 2G (Short Problem: Right to Transfer & Knudsen) Review Problem 2K Part (a) (Lawyering Habitability)

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 (cont’d) C. Implied Warranty of Habitability & Related Doctrines D. Problems

Three Relevant Doctrines (Recap) 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))

(2) Constructive Eviction: Nature of Claim (from Last Time) EXAMPLES L Acts That Effectively Exclude Reasonable T (cf. Knudsen) L’s Failure to Maintain  Effectively Excludes Reasonable T Finkel Eggshell Skull Q Torts Look at D’s Conduct to Determine Liability. If Liable, Take Ps as You Find Them Here: Liability Only if Harm Sufficient to Drive Out Reas. T Special Case: Disability Accommodation (3604(f)): NOTIO

EGRET IN MANGROVE SWAMP EVERGLADES: DQ2.13 EGRET IN MANGROVE SWAMP

Quiet Enjoyment Claims: Actionable Interference Must Be Attributable To L (See Note 4 P609-10) Hard Qs Involve Actions of Other Tenants Trend: L Responsible if has Right to Control T’s Acts Can Discuss Whether Landlord Likely to Be Able to Control Whether Seems Type of Problem Properly Attributable to Landlord Must Be “Substantial” (See Note 3 P609) Relatively Meaningless Standard w/o Examples or Explanation DQ2.13 designed to try to help you think about how to quantify Both These Issues Raised in 2016 QIV(a) (DF This Week)

Everglades: DQ2.13: “Substantial” Interference (Hard Qs/Easy Qs) 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

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

IMPLIED WARRANTY OF HABITABILITY(IWH): Overview Traditional: No L Duties w/o Express Term in Lease From Early Twentieth Century: Constructive Eviction Evolves Most Cities Adopt Building/Housing Codes Allow Gov’t Enforcement of Minimum Standards for Residences and Commercial Buildings Historically in Practice, Very Uneven Enforcement & Lot of Corruption (E.g., Miami-Dade & Hurricane Andrew)

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 @ P617-18) 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 Statutory Versions of IWH (incl FL)

JUSTIFICATIONS FOR IWH cf. 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) For Non-Residential Leases, Check for Similar “Building Codes” Some States Adopt More Gen’l Legal Test E.g., NY Statute cited in Knudsen (P629): Ldld warrants that Tnts “shall not be subject to any condition which would be dangerous … or detrimental to their life, health, or safety.” Other similar examples in Note 3 on P620-21

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 Some States Adopt More General Legal Test Florida §83.51 (S24)(Covered in Statutory Tempest Problem) Housing Codes Where Applicable List of Specific Requirements if No Applicable Housing Code

OPERATION OF IWH 2. Available Remedies? Generally Traditional Contract Remedies Available Rescission  BUT = No Housing Damages [Detailed in N.6 P621-23 (unassigned)]  BUT Ordinary Civil Suit Very Slow DQ2.14 (1st Q): These are problems with Constructive Eviction Claims (along with focus on possession rather than quality of unit)

OPERATION OF IWH 2. 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) (These are the Real Teeth for Tnts ) Withholding Rent/Rent Abatement T simply stops paying (after proper notice) T may have to put rent in escrow (see P619 Javins fn67) Repair & Deduct Better for Tnts b/c Remain in Housing & Relatively Quick Fix

OPERATION OF IWH 2. Available Remedies? ACADIA DQ2.15 What Remedies Are Provided in Florida Statutes for Problems with Habitability Issues?

OPERATION OF IWH 2. Available Remedies? ACADIA DQ2.15: Remedies in Florida Statutes §83.54/83.55 (S25): Civil Suit.for Damages §83.56(1) (S26): Termination of Lease (with proper notice) §83.60 (S28-29): Withholding Rent: Procedural Requirements? Repair & Deduct?

OPERATION OF IWH 2. Available Remedies? ACADIA DQ2.15: Remedies in Florida Statutes 83.54/83.55 (S25): Civil Suit.for Damages §83.56(1) (S26): Termination of Lease (with proper notice) §83.60 (S28-29): 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 Only Responsible for Details of Notice If Florida Statute Provided -OR- Looking for Reqmts in Lawyering Q Allow L Reasonable Time to Cure

OPERATION OF IWH 4. Waivable? Varies by State & Circumstances Most States: IWH Not Waivable Some States: Depends on Freely Bargained v. Boilerplate FL §83.51: Can waive all reqmts for single family home & “duplex” (FL v. NY) Some reqmts not waivable for apts in multi-unit building Tomorrow After Rev Prob 2L: ~10-12 Minutes Policy Debate Over Waivability (N. 11 P625-27) & DQ2.14 (2d Q) (ACADIA  Volunteers)

SCOPE OF IWH: Possible Extensions of IWH: Policy Qs IWH & Key Remedies Developed to Ensure Minimally Adequate Housing Could seek to extend the reach by Seeking New Legislation -OR- Where IWH/Remediess are entirely products of common law development (no statutes), can ask state courts to extend in context of appropriate litigation. …

SCOPE OF IWH: Possible Extensions of IWH: Policy Qs IWH & Key Remedies Ensure (1) Minimally Adequate (2) Housing. Should States Extend … Key Remedies To Cover Substantial Problems with Amenities Not Needed for Minimum Habitability (Pool, Dryer, etc.) [Not Doing in Class; Worth Thinking About] See Rev. Prob. 2H (S57) Part of Rev Prob 2J that we won’t address in class

SCOPE OF IWH: Possible Extensions of IWH: Policy Qs IWH & Key Remedies Ensure (1) Minimally Adequate (2) Housing. Should States Extend … Key Remedies To Cover Problems Beyond Minimum Habitability To Cover [Small] Commercial Tenants? (DQ2.16) Done in a Few States; See N.10 P624-25 Can Be Called Implied Warranty of “Suitability” Some States Allow Rent Withholding for Lease Violation but no IWH We’ll Address as Part of Rev. Prob. 2J Thursday

ACADIA: Knudsen & DQ2.17 Acadia Sunrise

Knudsen & Tenant Remedies for Undesirable Neighbors (ACADIA) Background to Knudsen: N.Y. Law “Registrable Offenses” = List of Crimes that involve sexual violence and/or sexual activity with minors. “Sex Offender” = Person convicted of Registrable Offense When Sex Offender released to community after conviction, court holds a hearing to determine risk level (likelihood of repeating same or similar offense). The court may assign one of the following three risk levels: Level 1 (low risk of repeat offense), or Level 2 (moderate risk of repeat offense), or Level 3 (high risk of repeat offense and a threat to public safety exists).

Knudsen & Tenant Remedies for Undesirable Neighbors (ACADIA) Background to Knudsen: N.Y. Law When Sex Offender gets a new residence, state provides notification online and (I think) directly to neighbors. Level of detail in the notification depends on Risk Level. For Level 3, notification includes specific address, picture & list of relevant convictions. As I understand it, Landlord effectively can’t prevent renting to Sex Offender

Knudsen & Tenant Remedies for Undesirable Neighbors (ACADIA) Possible Legal Theories Fairness/Public Policy Scope of the Remedy Who can invoke? Against whom can it be invoked?

Knudsen & Tenant Remedies for Undesirable Neighbors (ACADIA) (1) Legal Theory for Tenant Remedy Landlord has no choice but to allow sex offender invited as roommate by an existing tenant (see 2/28 slides). Thus no breach of IWH b/c no ldd duty Problem is Refusing to Let TNT Terminate Lease (Without Penalty) . Court Says: Remaining would be Inconsistent with Covenant of Quiet Enjoyment Refusing Request for Termination Unconscionable/Villation of Covenant of Good Faith & Fair Dealing Could Court have used Constructive Eviction Theory?

(2) Constructive Eviction: Nature of Claim (from 2/23) 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 (same problem as IWH claim) substantially & materially deprives the T of the beneficial use & enjoyment of the premises”