VISITORS FROM SECTION J: SEE ME FOR AVAILABLE SEATS MUSIC: The Dinah Washington Story (Disc Two: Recordings )

HABITABILITY & Related Issues continued Featuring FALCONS

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

IWH: COMPARED TO OTHER DOCTRINES 1.Illegal Lease (see P678-79) Problems severe enough to make occupancy illegal Problems must exist at start of lease Remedy: Lease is void 2.Constructive Eviction [DQ89] Problems severe enough to equal eviction Must move out to claim Remedy: Ends lease

IWH: REMEDIES (Generally) 1.Traditional Contract Remedies: Rescission Damages 2.Modern Innovations Withholding Rent Repair & Deduct

IWH: REMEDIES (DQ90: Florida) 1.§83.56(1): Termination of Lease (with proper notice) 2.§83.60: Withholding rent (with proper notice). If defending a suit for non- payment of rent, tenant must pay amount due into court registry to maintain claim. 3.No repair and deduct provision.

IWH: WAIVABLE? 1.States Split –Casebook says waivable in most states –Other sources say non-waivable in most states 2.May depend on circumstances –Florida: Can waive if single-family house or duplex –Others: May depend if freely bargained for

IWH: POSSIBLE ECONOMIC EFFECTS DQ89: Most states have adopted the IWH and [many have] made it non- waivable. What downsides to tenants or to the housing market might there be to doing this?

IWH: POSSIBLE ECONOMIC EFFECTS Limits genuine agreements to lease sub- standard housing at below-market prices. Ls may withdraw units from market b/c of increased maintenance costs (condo conversions or abandonment). BUT may encourage Ls to do preventative maintenance to avoid costly repairs later.

IWH: POSSIBLE ECONOMIC EFFECTS Empirically very hard to sort out effects of IWH on housing market in light of other social phenomena such as: –Gentrification –Increased household spending on housing –Decreased government housing construction and subsidies –Increase in wealth gaps

IWH: POSSIBLE EXTENSIONS OF DOCTRINE DQ92: Small Commercial Rentals (e.g., Dentist’s Offices, Antique Stores, Ice Cream Parlors)? Review Problem 6A: Warranty of Fitness for High End Rentals?

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

Retaliatory Eviction Statutes or cases often prohibit residential Ls from evicting or otherwise punishing Ts who report housing code violations or engage in other protected activities.

Retaliatory Eviction Statutes or cases often prohibit residential Ls from evicting or otherwise punishing Ts who report housing code violations or engage in other protected activities. DQ91: What are the reasons for having a cause of action for retaliatory eviction?

Retaliatory Eviction Statutes or cases often prohibit residential Ls from evicting or otherwise punishing Ts who report housing code violations or engage in other protected activities. DQ91: If the reason for the L’s action is disputed, who should bear the burden of proof as to whether the reason was retaliatory?

Retaliatory Eviction Statutes or cases often prohibit residential Ls from evicting or otherwise punishing Ts who report housing code violations or engage in other protected activities. Often law creates a presumption that the Ls action is retaliatory if w/in a specified length of time of the protected activity (would mean burden on L).

Retaliatory Eviction Qs that arise (often detailed in statute) What L actions are restricted? What T activity is protected? What intent by L is necessary? How can the taint of retaliation be dissipated?

Retaliatory Eviction: Florida (1). It is unlawful for a landlord to discriminatorily increase a tenant's rent or decrease services to a tenant, or to bring or threaten to bring an action for possession or other civil action, primarily because the landlord is retaliating against the tenant.

Retaliatory Eviction: Florida (4) "Discrimination" under this section means that a tenant is being treated differently as to the rent charged, the services rendered, or the action being taken by the landlord, which shall be a prerequisite to a finding of retaliatory conduct.

Retaliatory Eviction: Florida (4) "Discrimination" under this section means that a tenant is being treated differently as to the rent charged, the services rendered, or the action being taken by the landlord, which shall be a prerequisite to a finding of retaliatory conduct. Differently from what ?

Retaliatory Eviction: Florida (1). It is unlawful for a landlord to discriminatorily increase a tenant's rent or decrease services to a tenant, or to bring or threaten to bring an action for possession or other civil action, primarily because the landlord is retaliating against the tenant.

Retaliatory Eviction: Florida (1)… Examples of conduct for which the landlord may not retaliate include, but are not limited to, situations where: (a) The (T) has complained to a gov’tal agency … with responsibility for enforcement of a bldg., housing, or health code of a suspected violation applicable to the premises; (b) The (T) has organized, encouraged, or participated in a tenants' organization; or (c) The (T) has complained to the (L) pursuant to §83.56(1).

Retaliatory Eviction: Florida (1)… In order for the tenant to raise the defense of retaliatory conduct, the tenant must have acted in good faith. … (3) … [T]his section does not apply if the landlord proves that the eviction is for good cause. Examples of good cause include, but are not limited to, good faith actions for nonpayment of rent, violation of the rental agreement or of reasonable rules, or violation of the terms of this chapter.

UNIT IV: REGULATION OF LAND USE: The Reese’s Peanut Butter Cup Problem

REGULATION OF LAND USE 1.By Tort Law: Nuisance 2.By Limited Grant: Defeasible Fees 3.By Contract: Servitudes (Chapter 8) 4.By Regulation: a.Zoning (Chapter 9) b.Environmental Law

Chapter 8: Servitudes 1.Easements a.Express (Positive & Negative) b.Implied (Positive Only) 2.Intro to Notice & Recording System 3.Promissory Servitudes (Brief Intro) 4.Homeowner’s Associations

Chapter 8: Servitudes 1.Easements a.Express (Positive & Negative) b.Implied (Positive Only) 2.Promissory Servitudes (Brief Intro) 3.Homeowner’s Associations

Express Easements Chevy Chase, Marcus Cable & DQ Featuring Hawks

Express Easements Vocabulary Appurtenant v. In Gross Dominant Tenement v. Servient Tenement Positive v. Negative Easement

Express Easements Issues: Interpreting Language 1.Fee Simple v. Easement 2.Scope of the Easement

Express Easements Fee Simple v. Easement Chevy Chase (Md.) v. City of Manhattan (Ca.) [in Note 1 P832]

Express Easements Fee Simple v. Easement 1.Evidence of Parties’ Intent –Language –Circumstances of Transaction 2.Presumption? (DQ108)

Express Easements Scope of Easement Q is whether use contemplated by dominant tenement-holder allowed Generally interpret scope issues like contracts –Objective indications/manifestations of parties’ intent –Not hidden understanding Often arises with changed circumstances: which party should bear different burden?

Express Easements Scope of Easement: Sample Blackletter Tests “Use must be reasonable considering the terms of the grant” “Evolutionary not revolutionary” changes allowed. “Burden must not be significantly greater than that contemplated by parties”

Express Easements Scope of Easement: Chevy Chase: Common Transition from RR Rights of Way to Recreation Trails –Federal statute encourages and gives RRs authority to transfer rights-of-way –BUT doesn’t purport to resolve state law issues re scope Marcus Cable: Common problem of improved technology

LOGISTICS: MONDAY REVIEW PROBLEMS 8A & 8C ARGUMENTS by HAWKS & OWLS –From blackletter tests –From cases CRITIQUES by FALCONS (+ all others who haven’t submitted a critique) –Property I Critique of 8A –Property J Critique of 8C plus ADVICE RE COURSE SELECTION

Express Easements Scope of Easement: DQ109: Chevy Chase & Blackletter Tests (Case Uses Version of Each) “Use must be reasonable considering the terms of the grant” “Evolutionary not revolutionary” changes allowed. (same “quality” of use) “Burden must not be significantly greater than that contemplated by parties”

Express Easements Scope of Easement: DQ109: Chevy Chase & Blackletter Tests “Use must be reasonable considering the terms of the grant” –Begins with language arguments: –To RR, “its successors & assigns, a free and perpetual right of way.”

Express Easements Scope of Easement: DQ109: Chevy Chase & Blackletter Tests “Evolutionary not revolutionary” changes allowed. (same “quality” of use; doesn’t need to be specifically anticipated) –Chevy Chase: Forms of Transportation –Preseault (note 2 P833): Commercial Use v. Individual Recreation

Express Easements Scope of Easement: DQ109: Chevy Chase & Blackletter Tests Burden must not be significantly greater than that contemplated by parties” (Increase in Burden “so substantial” as to create a “different servitude”) –“Self-Evident” that change “imposes no new burdens” –Plus adds benefit to servient tenements (access to trail)

Express Easements Scope of Easement: DQ110: Marcus Cable & Blackletter Tests “Use must be reasonable considering the terms of the grant” (Case Essentially Uses) –Start with language –Give undefined terms ordinary meaning –Determine purposes of grant –Use can change to accommodate technological development, but must fall within original purposes

Express Easements Scope of Easement: DQ110: Marcus Cable & Blackletter Tests Try Applying: “Evolutionary not revolutionary” changes allowed. “Burden must not be significantly greater than that contemplated by parties”

Express Easements Scope of Easement: What’s at Stake Parties in long term relationship governed by terms of original agreement. Changing circumstances make change desirable (parties always can bargain) Strict adherence to original terms yields certainty for servient owners Flexibly allowing change if similar use & no great increase in burden better meets dominant owners’ needs & expectations (especially re maximizing property value)

FOUR WEEKS FROM APRIL 1 TO FIRST EXAM

IT’S APRIL! WHAT NOW??

Generally Keep Preparing & Going to Class – End of semester material often tested disproportionately. – Profs often summarize, tie together themes, and give exam hints in last classes.

IT’S APRIL! WHAT NOW?? Generally Keep Preparing & Going to Class Old exam Qs under exam conditions – Practice the skills – Learn what your Profs look for

IT’S APRIL! WHAT NOW?? Generally Keep Preparing & Going to Class Old exam Qs under exam conditions Think about exam technique – Exam skills workshops – Info from current Profs – Review last semester’s exams

IT’S APRIL! WHAT NOW?? Generally Keep Preparing & Going to Class Old exam Qs under exam conditions Think about exam technique It’s a Marathon, Not a Sprint – Plan Your Studying – Conserve Energy

IT’S APRIL! WHAT NOW?? Property Last Exam: Prepare Appropriately – Time management re Con Law & Elective –Don’t save 90% of work for last 3 days

IT’S APRIL! WHAT NOW?? Property Last Exam: Prepare Appropriately Get feedback on an old Q

IT’S APRIL! WHAT NOW?? Property Last Exam: Prepare Appropriately Get feedback on an old Q Read end-of-semester IMs

IT’S APRIL! WHAT NOW?? Property Last Exam: Prepare Appropriately Get feedback on an old Q Read end-of-semester IMs Utilize review session & pre-exam office hours

YOU CAN DO THIS !