2-25-19 NATIONAL CLAM CHOWDER DAY PROPERTY B SLIDES 2-25-19 NATIONAL CLAM CHOWDER DAY

More Music to Accompany Knudsen: Alicia Keys, As I Am (2007) Lunch Tomorrow Meet on Bricks @ 12:25 Bolaños * Cabreras Caceres, N. * Comas Gonzalez * Pivarnyik Volosin Next Few DF Sessions: Current: Rev Prob 2G Today @ 9:40 Here (Brendan) Wednesday @ 9:40 Here (Lauren) Then: Rev Prob 2H (Brendan) Friday @ 12:30 Here Monday 3/4 @ 9:40 Here

MONday Pop Culture MOMENT RIPPED FROM THE HEADLINES

MONday Pop Culture MOMENT Baseball Game Delayed After Fish Falls From Sky

MONday Pop Culture MOMENT Baseball Game Delayed After Fish Falls From Sky Spring Training has Just Begun, But the Marlins Already Are in Free Fall

MONday Pop Culture MOMENT  Parents Outraged at Teacher's Decision to Read Book About Gay Bunnies

MONday Pop Culture MOMENT  Parents Outraged at Teacher's Decision to Read Book About Gay Bunnies They Apparently Were Upset by the Gay Stereotypes in the Book; One of the Bunnies was a Hare Stylist

MONday Pop Culture MOMENT Man Attacks Lawyer In Court After Getting Long Sentence

MONday Pop Culture MOMENT Man Attacks Lawyer In Court After Getting Long Sentence Another Example of Why You Must Be Concise!!

Previously in Property B Intro to XQ3: Opinion/Dissent Chapter 2: Tenant Selection Anti-Discrimination Law: Rev Prob 2D Right to Transfer Funk & [Implied] Reasonableness Term Rev Prob 2F

Previously in Property B Chapter 2: Habitability Overview Quiet Enjoyment & Constructive Eviction Operation of the Causes of Action Barrash & Gurian as Examples Implied Warranmty of Habitability Javins & Key Concerns NY Rooommate Law & Intro to Knudsen

Knudsen: Overview TNT1 in NY Building Brings in as Roommate a Registered Sex Offender (Crimes Unstated; Court assumes specifically relevant to TNT2) TNT2 in Neighboring Apt w 3 Young Daughters wants to move out. LDLD refuses to allow TNT2 to Break Lease w/o Penalty. Court holds LDLD must allow TNT2 to Leave w/o Penalty

Knudsen & Tenant Remedies for Undesirable Neighbors Background (Last Class) NY Sex Offender Laws NY Roommate Act Possible Legal Theories for Tenant Remedies Fairness/Public Policy Scope of the Remedy Who can invoke? Against whom can it be invoked?

Knudsen & Tenant Remedies for Undesirable Neighbors (RECAP) Legal Theory for Tenant Remedy IWH?: Landlord has no choice but to allow sex offender invited as roommate by an existing tenant. Thus no breach of IWH b/c no LDLD duty. Remedy Chosen: 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/Violation of Covenant of Good Faith & Fair Dealing THUS TNT can leave w/o Penalty

EGRET IN MANGROVE SWAMP EVERGLADES: DQ2.19 EGRET IN MANGROVE SWAMP

2.19 Could Court Use Constructive Eviction Theory? EVERGLADES Nature of Claim (from last week) 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”

2.19 Could Court Use Constructive Eviction Theory? EVERGLADES 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” NOTE: If no statute forcing LDLD to allow undesirable TNT, presumably you could use this cause of action if all elements met.

Knudsen & Tenant Remedies for Undesirable Neighbors Background NY Sex Offender Laws NY Roommate Act Possible Legal Theories for Tenant Remedies Fairness/Public Policy Scope of the Remedy Who can invoke? Against whom can it be invoked?

Knudsen & Tenant Remedies for Undesirable Neighbors Fairness/Public Policy (ALL) If Ldld could not prevent the Sex Offender from living in the building, is it fair to allow Tnt to terminate the lease w/o Penalty?

Knudsen & Tenant Remedies for Undesirable Neighbors Fairness/Public Policy If Ldld could not prevent the Sex Offender from living in the building, is it fair to allow Tnt to terminate the lease? 2017 Point: Tnt Safety Interest > Ldld $$$ Interest BUT if (as seems likely) TNT moves out regardless of outcome of case, then Q is just who bears burden of cost of remainder of lease Maybe easier for Ldlds to find replacement tenant to limit damages. Less likely to be catastrophic loss for Ldlds who can spread cost of risk over all Tnts by increasing rent. BUT Literal Language of Lease Puts Burden on Tnt BUT Very Amorphous Theory of Case  Lot of Litigation

Knudsen Reboot & Tenant Remedies for Undesirable Neighbors Fairness/Public Policy Casebook asks about fairness of treating tenants better than condo owners. Quick check suggests roommate law doesn’t apply. If that’s true, condo assn. could ban sex offenders from residence in condo units.

Knudsen & Tenant Remedies for Undesirable Neighbors Background NY Sex Offender Laws NY Roommate Act Possible Legal Theories for Tenant Remedies Fairness/Public Policy Scope of the Remedy (Very Testable) Who can invoke? Against whom can it be invoked?

Knudsen: Scope of the Remedy Who Can Invoke? Could a tenant invoke this remedy if … No children? Male children if victims all female? Resided on a Different Floor? BIG LINE-DRAWING PROBLEMS

Knudsen: Scope of the Remedy EVERGLADES: DQ2.19 (Who Triggers?) What Other Types of “Undesirable” Neighbors Might Be Covered by the Reasoning in Knudsen?

Knudsen: Scope of the Remedy EVERGLADES: DQ2.19 (Who Triggers?) What Other Types of “Undesirable” Neighbors Might Be Covered by the Reasoning in Knudsen? I tested in short problem in 2016 Rev Prob 2H in DF (Friday & Next Monday)

Review Problem 2L(b)(S64-65) OLYMPIC: Anti-Discrimination Claim Evidence Supporting/Refuting that S Rejected B b/c he believed B was Muslim or Arab Last Part of Class Friday  Monday SEQUOIA: Reasonableness Claim (Monjday) 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?

OLYMPIC: Review Problem 2L(b) Anti-Discrimination EEL GLACIER

Review Problem 2L(b)(S59-60) OLYMPIC: Anti-Discrimination Claim B may claim that S Rejected B b/c he believed B was Muslim or Arab Evidence Supporting Claim? Evidence Refuting Claim? Other Evidence You Might Look For? Which Seems Stronger and Why?

SEQUOIA: Review Problem 2L(b) Reasonableness of Refusing Transfer SEQUOIAS

Review Problem 2L(b)(S59-60) SEQUOIA: Reasonableness Claim Lease Requires Consent to Transfer “Not Be Unreasonably Withheld” (So No Need to Check if State Implies “Reasonableness”) Clearly S has Legitimate Interest in Whether B Can Afford to Pay Rent Why Might Rejection Here Be Unreasonable Anyway?

Review Problem 2L(b)(S59-60) SEQUOIA: Reasonableness Claim S has Legitimate Interest in B’s Ability to Pay Rent Why Might Rejection Here Be Unreasonable Anyway? Source of Info: S “had heard” employer was having financial difficulties Strength of Connection: betw employer’s problems & B ability to pay rent Evidence/Possible Facts Relevant to Reasonableness?

Rev. Prob. 2J: Legal Background State common law says repair-and-deduct & rent- withholding remedies avail for breaches of minimal habitability in residential leases; hasn’t ruled on availability in other contexts. State Supreme Court grant of review: When, if ever, these remedies should be available for commercial tenants. Lower courts provide three possible positions (lots of other possibilities).

Review Problem 2J(S57-58) Trial Court Position = Remedies Not Implied in Comm’l Lease (Take Lease as Written) Appellate Court Majority Position = Both Remedies Implied as Default Rule (Imply if Lease is Silent, but Can Waive in Lease) Concurring/ Dissenting Position = Non-Waivable Right = Imnplied in Leases Regardless of Language Just for Minimum Habitability Not Available to Large Sophisticated Comm’l Tnts

Rev. Prob. 2J: Task (On Exam) Q Presented: When, if ever, repair-and-deduct & rent-withholding should be available for commercial tenants. Lower courts provide three possible positions (lots of other possibilities). TASK: Write drafts of analysis sections of two opinions. For each: Choose one possible rule (doesn’t have to be one chosen by lower cts) Provide arguments supporting choice, including why better than at least some alternatives (especially your other choice). For sense of what these look like in writing, see posted CMA for 2F online, & for this problem later this week. More examples soon.

Rev. Prob. 2J: Task (On Exam) Q Presented: When, if ever, repair-and-deduct & rent-withholding should be available for commercial tenants. Lowrr courts provide three possible positions (lots of other possibilities). PRIMARY FOCUS: Choose and defend two possible rules. Use of Facts/Record of Case Described in Problem: Some cases we’ve read: (Shack, JMB, Funk, Javins) lay out rules covering far more than facts in front of them. You can do this. Can use facts of problem as example or counterexample. Check specific instructions re application of rule to record. 2J says briefly apply your rules to allegations here. Primarily to help me understand what your rule is.

Rev. Prob. 2J: Allegations Here Posture: Declaratory Judgment Action dismissed on pleadings. Have to treat T’s allegations as true. If you think you need more info after you set out rules, explain significance of missing info & remand to let lower cts handle. Background Allegations: T runs health spa business. Enters 12-year lease for two-story stand-alone building in a very large multi-building suburban mall owned/run by L Lease does not refer to rent-withholding or repair-and-deduct remedies Common Problems: Multi-Unit Building; T Sophistication; L Size.

Rev. Prob. 2J: Exercise Today Q Presented: When, if ever, repair-and-deduct & rent-withholding should be available for commercial tenants. Lowrr courts provide three possible positions (lots of other possibilities). EXERCISE TODAY: 3 sets of arguments on specific issues with panels taking positions I gave you. These could be part of a strong written answer depending on rules chosen. I’m just working w people on relevant panels to get out some arguments on each side. If you want to check on other/different arguments or have other Qs, first look at posted CMA and then e-mail me if you want further clarification.

Review Problem 2J(S57-58) ACADIA: Arguments in Support of Trial Court Position (Remedies Not Implied in Comm’l Lease) & BADLANDS Counter BADLANDS: Arguments in Support of Appellate Court Majority Position (Both Remedies Implied as Default Rule) & Everglades Counter EVERGLADES: Arguments in Support of Concurring/ Dissenting Position = Non-Waivable Right & Acadia Counter Just for Minimum Habitability Not Available to Large Sophisticated Comm’l Tnts

Relevant Allegations (Think About Why I Include) Rev Prob 2J(1):Availability of Repair & Deduct as Remedy in Comm’l Lease Relevant Allegations (Think About Why I Include) Fountain next to building; lease provides that it is substantial/material part of leased premises [not common area] and that landlord will maintain it “in good working order” 10/13 Fountain stops working; needs replacement part. 10/13-3/14: Ldld repeatedly tells Tnt that they have ordered part but it’s out of stock. 3/14: Tnt finds part on internet and orders herself for $2300 retail price and had her staff install. Now claims repair & deduct rights.

Only Available if Expressly Provided in Lease Rev Prob 2J(1):Availability of Repair & Deduct as Remedy in Comm’l Lease ACADIA: Only Available if Expressly Provided in Lease BADLANDS: As Default Rule

Relevant Allegations (Think About Why I Include) Rev Prob 2J(2):Availability of Rent Withholding as Remedy in Comm’l Lease for Violations of Minimal Habitability/Usability Relevant Allegations (Think About Why I Include) Lease unclear on responsibility for basic maintenance. T assumed L responsible for systems serving entire complex (plumbing, electricity, A/C) 12/13: water pressure on 2d floor of bldg. drops; T needs to carry water upstairs for services. L determines T didn’t cause problem. L tried repeatedly to fix until 3/14. Then L announced it had no responsibility to fix. T gave notice of intent to withhold rent until plumbing fixed.

(Assume Small Commercial Tenants) Rev Prob 2J(2):Availability of Rent Withholding as Remedy in Comm’l Lease for Violations of Minimal Habitability/Usability (Assume Small Commercial Tenants) EVERGLADES: Non-Waivable Term ACADIA: Only Available if Expressly Provided in Lease

Rev Prob 2J(3):Availability of Both Remedies to Large Sophisticated Tenants (Can Assume T Here is Not) BADLANDS: Implied As Default Rule EVERGLADES: Not Implied; Only Available if Explicitly in Lease)