LOGISTICS No Office Hours Today Test Grades & Answers/Comments Handout Available by Early Next Week Fall Schedule Available Later in the Week –I’ll Talk About Course Selection Next Monday –Also Course Selection Advice on My Home Page Doing an Old Exam Question for Feedback –Info on Course Page –I’ll Talk About and Take Qs on Wed/Fri

CORRECTIONS Course Page changes made Sat. a.m. –DQ : “blackletter tests” are on S155 –Several adjustments to Assignment Sheet Corrections to Textbook for Wed/Fri –P830 line 9: “dominant” should be “servient” –P848 2d para. line 5: “licensor” should be “licensee”

Music: Stevie Nicks, Bella Donna (1981) NCAA CONTEST POTENTIAL WINNERS If Michigan State reaches finals: Ainsworth If Butler over W.V. in finals: Ainsworth If W.V. over Butler in finals: B. Young If Duke v. Butler in finals: Rosado-Barreras

The Rule Against Perpetuities Not Tested! So Why Cover?

The Rule Against Perpetuities Why Cover? Horror Movie VALUE (The Shadow of the Past)

The Rule Against Perpetuities Why Cover? Awareness of Rule Policy Reasons for Interfering with Intent of Grantor – Alienability – Limit Dead Hand Control

The Rule Against Perpetuities No [contingent future] interest [in a grantee] is good unless it must vest, if at all, not later than twenty- one years after some life in being at the creation of the interest.

The Rule Against Perpetuities Paradigm Grant: (in will): To my children for life, then to my first grandchild to turn 21.

The Rule Against Perpetuities Paradigm Grant: (in will): To my children for life, then to my first grandchild to turn 21. Easy Case (Void): To my children for life, then to my first grandchild to turn 30.

The Rule Against Perpetuities Paradigm Grant: (in will): To my children for life, then to my first grandchild to turn 21. Easy Case (Void): To my children for life, then to my first grandchild to turn 30. Easy Case (Void): To B and B’s heirs, but if the property is ever used for commercial purposes, to C and C’s heirs.

The Rule Against Perpetuities Jiminy conveys to Pinocchio for life, then to Cleo if Cleo attains the age of 30." Cleo is now 2 years old.

The Rule Against Perpetuities Jiminy conveys to Pinocchio for life, then to Cleo if Cleo attains the age of 30." Cleo is now 2 years old. OK. Must vest (if at all) during Cleo’s lifetime. That can vest 21 year’s after P’s death doesn’t matter if C can serve as measuring life.

The Rule Against Perpetuities Mary, a teacher of property law, grants $1,000 "for all members of my present property class who are admitted to the bar."

The Rule Against Perpetuities Mary, a teacher of property law, grants $1,000 "for all members of my present property class who are admitted to the bar." OK. Whenever grant to living person conditional on that person doing something, OK because has to happen w/in their life.

The Rule Against Perpetuities PRACTICE POINTS Modified by statute or caselaw in most states (although basic analysis usually still required). Can show up (as surprise) with regard to business transactions like options and security interests.

Transition: Back to Landlord-Tenant & Forward to Servitudes Common Ground –Based in Contracts –Shared Rights to Same Piece of Land Common Issues –Interpretation of Contract Provisions –Public Policy Limitations on Right to Contract

Tenant’s Right to Transfer Featuring EAGLES

Tenant’s Right to Transfer 1.Overview 2.“Reasonable” Withholding of Consent 3.Should Courts Imply “Reasonableness”? a.Commercial Tenancies b.Residential Tenancies 4.Waiver Permissible?

Tenant’s Right to Transfer: Overview ASSIGNMENT Transfer of entire remaining lease term. Original L and T retain responsibilities to each other. Generally speaking L and Assignee now also responsible to each other for original lease terms

Tenant’s Right to Transfer: Overview SUBLEASE Transfer of less than entire remaining lease term. Original L and T retain responsibilities to each other. Generally speaking L and Sublessee not responsible to each other for original lease terms

Tenant’s Right to Transfer: Overview Right to Transfer T allowed to transfer unless lease provision to contrary. Limits read narrowly (e.g., ban on “assignment” won’t prevent subleases). Common provision: “No transfer w/o consent of landlord”

Tenant’s Right to Transfer 1.Overview 2.“Reasonable” Withholding of Landlord’s Consent 3.Should Courts Imply “Reasonableness”? a.Commercial Tenancies b.Residential Tenancies 4.Waiver Permissible?

Tenant’s Right to Transfer: Definition of 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: Definition of 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: Definition of of “Reasonable” LEGITIMATE CONCERNS Assurances re Rent Assurances re Use & Care of Premises Proposed Use: – Need for Alterations – Legality – Compatible w Other Tenants

Tenant’s Right to Transfer: Definition of of “Reasonable” NOT LEGITIMATE CONCERNS Personal Taste, Sensibility or Convenience Lever to Change Lease Terms (esp. T expectations re $) Note Cases: Collateral Economic Advantage (e.g., Filling Other Units)

Tenant’s Right to Transfer: Definition of of “Reasonable” HYPOS Bait & Switch (T wants to transfer to previously rejected applicant; no financial reason to reject) Religious or Political Objections

Tenant’s Right to Transfer 1.Overview 2.“Reasonable” Withholding of Consent 3.Should Courts Imply “Reasonableness”? a.Commercial Tenancies b.Residential Tenancies 4.Waiver Permissible?

Tenant’s Right to Transfer: Imply Reasonableness (Comm’l)? Arguments FOR Implying Reasonableness?

Tenant’s Right to Transfer: Imply Reasonableness (Comm’l)? Arguments FOR Implying Reasonableness 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

Tenant’s Right to Transfer: Imply Reasonableness (Comm’l)? Arguments AGAINST Implying Reasonableness?

Tenant’s Right to Transfer: Imply Reasonableness (Comm’l)? Arguments Against Implying Reasonableness Rewriting Contract Interferes w L’s Control of Own Property May Lead to Lot of Litigation

Tenant’s Right to Transfer 1.Overview 2.“Reasonable” Withholding of Consent 3.Should Courts Imply “Reasonableness”? a.Commercial Tenancies b.Residential Tenancies 4.Waiver Permissible?

Tenant’s Right to Transfer: Imply Reasonableness (Residential)? Why Might We Look at Differently if Residential Lease?

Tenant’s Right to Transfer: Imply Reasonableness (Residential)? 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 1.Overview 2.“Reasonable” Withholding of Consent 3.Should Courts Imply “Reasonableness”? a.Commercial Tenancies b.Residential Tenancies 4.Waiver Permissible?

Tenant’s Right to Transfer Waiver Permissible? Usual Arguments re Waivers (be familiar with) Restatement says Waiver OK if “freely bargained for.” Some States say NO.

HABITABILITY & Related Issues Featuring FALCONS

HABITABILITY & Related Issues 1.Review of History 2.Constructive Eviction 3.Warranty of Habitability 4.Retaliatory Eviction

HABITABILITY & Related Issues: Review of History 1.Common Law: Absent K, No L Duty to Provide Premises in Usable Condition or to Repair 2.Constructive Eviction: Physical Problems Attributable to L Equivalent to Eviction, T Can End Lease 3.Implied Warranty of Habitability: a.Courts Create L Duty to Maintain Minimum Habitability Stds in Residential Leases (1960s  80s) b.Version exists today in almost every state via statute or caselaw

HABITABILITY & Related Issues 1.Review of History 2.Constructive Eviction & Related Doctrines 3.Warranty of Habitability 4.Retaliatory Eviction

HABITABILITY & Related Issues: Constructive Eviction Implied Covenant of Quiet Enjoyment Traditionally not really about quiet or enjoyment in physical sense. Protected 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 What other kinds of protections are implied in the Covenant of QE?

HABITABILITY & Related Issues: Constructive Eviction Three Doctrines Partial Actual Eviction Constructive Eviction Partial Constructive Eviction (some states)

HABITABILITY & Related Issues 1.Review of History 2.Constructive Eviction 3.Warranty of Habitability 4.Retaliatory Eviction