2-20-19 NATIONAL CHERRY PIE DAY PROPERTY B SLIDES 2-20-19 NATIONAL CHERRY PIE DAY

Comments & Best Answers forthcoming as we Cover Underlying Material Music to Accompany Javins: Simon & Garfunkel, Greatest Hits (1972) featuring “Bridge Over Troubled Water” (1970) New on Course Page Banks of Old Hour- Long Exam Qs (QI, QIII, QIV) Comments & Best Answers forthcoming as we Cover Underlying Material Next Few DF Sessions: Current: Rev Prob 2E (Lauren) Today @ 9:40 Here Friday @ 9:40 Here Then: Rev Prob 2G Monday @ 9:40 Here (Brendan) Wednesday @ 9:40 Here (Lauren)

MONDAY (2/25) Review Problem 2L(b)(S64-65) OLYMPIC: Anti-Discrimination Claim (Monday) Evidence Supporting/Refuting that S Rejected B b/c he believed B was Muslim or Arab SEQUOIA: Reasonableness Claim (Monday) 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 (Recap) 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 ) Implied Warranty of Habitability (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 & DQ2.19 (EVERGLADES Friday): If Ldld Rents Unit Next to TNT1 to “Undesirable” TNT2, Is TNT1 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 Will Be True

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 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 this cause of action; reads Barash to say claim is 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 (Musy Leave + Stop Paying Rent) Gurian: Must Act w Reasonable Promptness (Can Give LDLD Some Time to Address) 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: Nature of Claim EXAMPLES L Acts That Effectively Exclude Reasonable T (cf. Knudsen) L’s Failure to Maintain  Effectively Excludes Reasonable T Good 2017 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

(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 (Read Carefully; Let Me Know if Qs) 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 (ALL THREE): 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” for CONSTR. EV.(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 3/6-3/8)

ALL: 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

3 Relevant Doctrines: QUESTIONS? 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))

REVIEW PROBLEM 2F ACADIA BADLANDS for Affirmance for Reversal Acadia Sunrise NORBECK PASS

Review Problem 2F(S45-46) 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(S45-46) 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(S45-46) Opinion/Dissent Arguments Is Reasonableness Req’mt Waivable in Comm’l Lease? BADLANDS Arguments: Yes if Arm’s Length Agreement ACADIA Arguments: Never STRONGEST POSITION?