PROPERTY B SLIDES 2-18-19 PRESIDENTS DAY

Monday Pop Culture Quiz Music to Accompany Funk: Rick James, Street Songs (1981) featuring “Below the Funk” and “Superfreak” Lunch Tomorrow Meet on Bricks @ 12:25 Davies * Kaufman * Needell Perlaza * Rivero * Rosenberg Templer Name the Musical Group: 1st Billboard #1 Hit in 1958 Won 5 Grammys; Nominated for 8 More Featured in Major Studio Motion Picture in 2013 Monday Pop Culture Quiz

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 2013

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 2013

Previously in Property B Finished Work on Chapter 1 JMB, Schmid & First Amendment Access to Malls: Review Problems 1L, 1M, 1P(i) Intro to XQ4: Issue-Spotter Eviction Under the Florida Statutes & Review Problem 2A

Previously in Property B Intro to Fed’l Anti-Discrimination Law Details of FHA & Civil Rights Act of 1866 (DQ2.01-2.06) Sorenson & Proof of Discriminatory Intent

LOGISTICS Next Few DF Sessions: On Course Page: Syllabus & Assmt Sheet for Rest of Chapter 2. Chapter 3 to Follow Soon. Next Few DF Sessions: Current: Rev Prob 2B (Brendan) Today @ 9:40 Here Then: Rev Prob 2E (Lauren) Wednesday @ 9:40 Here Friday @ 9:40 Here Then: Rev Prob 2G Next Mon (Brendan) & Wed (Lauren)

REVIEW PROBLEM 2D EVERYONE IS ON-CALL; I’LL ASSIGN 4 PEOPLE TO EACH SIDE & TAKE ADDITIONAL IDEAS FROM VOLUNTEERS Possible Discriminatory Reasons for Rejection Religion (Not Jewish Enough) Inter-Racial or Inter-Faith Relationship Israeli Possible Non-Discriminatory Reasons? Significance of Specific Facts? Other Evidence Supporting Discriminatory Reasons? Other Evidence Supporting Non-Discriminatory Reasons? Stronger Position Overall? Because?

PreSIDENTs’ DAY SPECIAL: SET 1 9. William Henry Harrison 12. Zachary Taylor

PreSIDENTs’ DAY SPECIAL: SET 1 Representing BENJAMIN (LANDORD) 9. William HENRY HARRISON 12. ZACHARY TAYLOR

PreSIDENTs’ DAY SPECIAL: SET 2 19. Rutherford 23. Benjamin 31. Herbert 35. John F. “Jack” B. Hayes Harrison Hoover Kennedy

PreSIDENTs’ DAY SPECIAL: SET 2 Representing REBECCA (APPLICANT) 19. Rutherford 23. BENJAMIN 31. Herbert 35. JOHN F. “JACK” B. HAY[e]S Harrison HOOVER Kennedy

PreSIDENTs’ DAY SPECIAL: SET 3 1. George 2. John 4, James Washington Adams Madison

PreSIDENTs’ DAY SPECIAL: SET 3 ALTERNATES 1. GEORGE 2. John 4, James Washington ADAM[s] MADISON

Possible Discriminatory Reasons for Rejection Pres9-12: Moreno-Zipper-Kotoske-Kaufman for Benjamin; Pres19-35: Hays-Eastman-Hoover-Doty for Rebecca Possible Discriminatory Reasons for Rejection Religion (Not Jewish Enough) Inter-Racial or Inter-Faith Relationship Israeli Pres9-12: Possible Non-Discriminatory Reasons?

Pres9-12: Moreno-Zipper-Kotoske-Kaufman for Benjamin; Pres19-35: Hays-Eastman-Hoover-Doty for Rebecca Possible Discriminatory Reasons: Religion; Inter-Racial or Inter-Faith Relationship; Israeli Possible Non-Discrim. Reasons: Gen’l Rudeness/Attitude; Disrespect for Religion ALL: Significance of Specific Facts? Rebecca Regularly wears Star of David Chris wears an earring in the shape of a cross Ben says “Black, Red, Green, Whatever. No Problem.” Rebecca says “Part of the reason I left Israel is so I don’t have rabbis watching everything I do.”

Pres9-12: Moreno-Zipper-Kotoske-Kaufman for Benjamin; Pres19-35: Hays-Eastman-Hoover-Doty for Rebecca Possible Discriminatory Reasons: Religion; Inter-Racial or Inter-Faith Relationship; Israeli Possible Non-Discrim. Reasons: Gen’l Rudeness/Attitude; Disrespect for Religion Pres19-35: Other Evidence Supporting Discriminatory Reasons? Pres9-12: Other Evidence Supporting Non-Discriminatory Reasons? ALL: Stronger Position Overall? Because? I’ll Post Comments & Best Answers on This (& 2B) in Update of Chapter 2 Info Memo After Class Today

Chapter 2. Leased But Not Last: Selected Issues in Landlord/Tenant Law The Importance of Context: The Ldld’s Right to Exclude (& Legitimate Interests of Tnts) Eviction Under the Florida Statutes Statutory Anti-Discrimination Law & The Right to Transfer Introduction to Fed’l Fair Housing Statutes Sorenson & Proof of Discriminatory Intent Funk & “Reasonable” Refusals to Allow Transfer Review Problems Habitability & Related Issues

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: 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 (and vice-versa) Part of Pro-Alienation Policy Favoring Easy Transfer of Land (We’ll See Again in Chapter Three). Easy Transfer Helpful Where … E.g., Tenant in Long-Term Lease Gets New Job Across Country E.g., 3d Party Business Can Make Much More $$$ Off Land than Present Tenant

TENANT’S RIGHT TO TRANSFER: REASONABLENESS ISSUES Common provision: “No transfer w/o consent of landlord” Meaning of “Reasonable” Withholding of Consent Should Courts Imply “Reasonableness”? Commercial Tenancies Residential Tenancies If We Imply Reasonableness, Should Tenant Be Able to Waive?

TENANT’S RIGHT TO TRANSFER: MEANING 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: MEANING 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: MEANING OF “REASONABLE” LEGITIMATE CONCERNS Assurances re Ability to Pay Rent Assurances re Use & Care of Premises Proposed Use: Need for Alterations Legality Compatible w Other Tenants (E.g., in Malls)

TENANT’S RIGHT TO TRANSFER: MEANING OF “REASONABLE” NOT LEGITIMATE CONCERNS Personal Taste, Sensibility or Convenience (Funk) Lever to Change Lease Terms (esp. T expectations re $) (Funk) Other Cases: Collateral Economic Advantage (e.g., Filling Other Units) Note: In Appropriate Context You Can Argue That Cases We’ve Read Are Wrong

TENANT’S RIGHT TO TRANSFER: MEANING OF “REASONABLE” Yeshiva (Note 3 P649-50): L wanted to exclude Planned Parenthood b/c of religious concerns re providing contraception Useful language from case (must be “readily measurable criteria” relevant to “any landlord”) suggests religious concerns not OK. BUT also issue of inconsistent application by L Birth control courses taught in Hospital run by L So doesn’t look like bona fide religious concern Asked if hospital courses were embarrassment to L, official replied, “Well, they're in the Bronx."

OLYMPIC: DQ 2.10-2.11 EEL GLACIER

TENANT’S RIGHT TO TRANSFER: MEANING OF “REASONABLE” DQ2.11 (Olympic) L Doesn’t Like Food Served by Proposed Transferee Restaurant (See Rev Prob 2E in DF Wed & Fri) Bait & Switch (T wants to transfer to previously rejected applicant; no financial reason to reject) Political Objections We’ll Come Back to (b) & (c) in More Detail with Rev Prob 2F on Thursday

TENANT’S RIGHT TO TRANSFER: REASONABLENESS ISSUES Common provision: “No transfer w/o consent of landlord” Meaning of “Reasonable” Withholding of Consent Should Courts Imply “Reasonableness”? Commercial Tenancies  Residential Tenancies If We Imply Reasonableness, Should Tenant Be Able to Waive?

TENANT’S RIGHT TO TRANSFER: DQ2.10: Imply Reasonableness? Commercial: PROS Importance of Alienation General Reqmt. of Good Faith & Fair Dealing Protects L’s Legitimate Concerns (esp. re $$$) Prevents L Using Transfer to Extort Better Lease Terms Commercial: CONS Rewriting Contract Interferes w L’s Control of Own Property May Lead to Lot of Litigation OLYMPIC: Why Might Residential Be Different?

TENANT’S RIGHT TO TRANSFER: DQ2.10: Imply Reasonableness Why Different if Residential Lease? Maybe L more personally involved  More L Control If L lives on premises  More L control T may have less knowledge and/or bargaining power  Less L Control More legit. reasons to reject in comm’l setting More States Imply in Residential Setting

TENANT’S RIGHT TO TRANSFER: REASONABLENESS ISSUES Meaning of “Reasonable” Withholding of Consent Should Courts Imply “Reasonableness”? If We Imply Reasonableness, Should Tenant Be Able to Waive? Default Rule v. State-Imposed Non-Waivable Lease Term Recurring Issue in Landlord-Tenant Law (& Other Types of Contracts with Strong Public Policy Implications)

TENANT’S RIGHT TO TRANSFER: REASONABLENESS ISSUES Meaning of “Reasonable” Withholding of Consent Should Courts Imply “Reasonableness”? If We Imply Reasonableness, Should Tenant Be Able to Waive? Restatement says Waiver OK if “freely bargained for.” Some States say NO, especially for Residential Leases We’ll Do Pros & Cons for Comm’l Leases in Rev. Prob. 2F Qs on Right to Transfer?

Right to Transfer: Possible Overlap with Anti-Discrimination Law A. L Refuses Transfer Requested by T for Specific Reason T & Potential Transferee Claim: Actual Reason for Refusal was Unlawful Discrimination “Legitimate” Reason Provided is “Unreasonable” See Review Problems 2G & 2L

Landlord’s Selection of Tenants : More Review Problems Review Problem 2E (Short Problem; Right to Transfer) DF Wed & Fri Review Problem 2F (Opinion/Dissent: Right to Transfer) In Class Wednesday (ACADIA/BADLANDS) Review Problem 2H (Short Problem: Right to Transfer & Knudsen) DF 3/1 & 3/4 Review Problem 2L (Part b) (Both) In Class Fri/Mon (OLYMPIC/SEQUOIA)

FINAL EXAM QUESTIONS Choose Three of Four XQ1: LAWYERING XQ2: SHORT ANSWERS (Choose Three of Four) XQ3: OPINION/DISSENT XQ4: TRADITIONAL ISSUE-SPOTTER

FINAL EXAM QUESTION 3 OPINION/DISSENT Instructions Will Say (Roughly) … Based on the information presented here, draft the analysis sections of a majority opinion for the [Name-of-State] Supreme Court and of a shorter concurrence or dissent, deciding [the legal question(s) indicated].

FINAL EXAM QUESTION 3 OPINION/DISSENT Task: Choose & Defend Rules for a Specific Legal Issue Describe and Defend Two Positions Utilize Range of Relevant Arguments from Course. E.g., Policy from Relevant Area Ease of Application/Institutional Competence Likely Effects on Behavior of Relevant Parties Application to Facts & Resolution of Case Much Less Important Than Defense of Rule

FINAL EXAM QUESTION 3 OPINION/DISSENT Task: Choose & Defend Rules for a Specific Legal Issue Take on Role of State Supreme Court Setting Rules for Lots of Cases While Deciding One Case Can Choose to Affirm or Modify Precedent; Must Defend Always 2 or More Lower Court Positions in Q as Starting Points Ideally Both Your Opinions Address Own Weaknesses Acknowledge & Address Problems w Own Position Address Other Side’s Best Points

FINAL EXAM QUESTION 3 OPINION/DISSENT Read Specific Instructions Carefully (E.g., Rev Prob 2F where Ainsworth S.Ct. granted review to decide two legal Qs): Compose drafts of the analysis sections of a majority opinion … and of a shorter dissent, deciding these Qs …. Both your majority and your dissent should address both of the disputed Qs and the dissent should disagree with the majority about both, even if it ultimately agrees with the majority about who wins….

Review Problem 2F(S45-46) Opinion/Dissent for Wednesday 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 requirement 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.”

Review Problem 2F(S44-45) Opinion/Dissent Arguments for Wednessday Is Reasonableness Req’mt Waivable in Comm’l Lease? BADLANDS: Yes if Arm’s Length Agreement ACADIA: Never Were L’s Reasons for Denying Consent “Reasonable”? BADLANDS: In Comm’l Lease, Not Ltd. to Ldld’s Economic Interests OK to Deny Already-Rejected Tenant OK to Exercise Political Belief ACADIA: In Comm’l Lease, Ltd to Ldld’s Economic Interests Be Ready to Identify Problems with Types of Reasons Here

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