1. PROPERTY D SLIDES 4-12-16 National Grilled Cheese Sandwich Day

2. Tuesday April 12: Music Stevie Wonder, The Definitive Collection HARD COPIES OF E-MAILED ACADIA & SEQUOIA CRITIQUES AVAILABLE FOR PICK-UP INFO MEMOS POSTED ON COURSE PAGE IM#2: Right to Exclude IM#3: Eminent Domain

3. Selected Issues in Landlord/Tenant Law I.Legitimate Interests of Tenants & Landlords A. Eviction Under the Florida Statutes B. The Right to Transfer (Cont’d) II. Habitability & Related Issues

4. TNT’s Right to Transfer: DQ6.01 (Sequoia) 1.Lease: “No Transfer w/o L’s Consent” 2.“Reasonable” Withholding of Consent 3.Should Courts Imply “Reasonableness”? a.Commercial Tenancies b.Residential Tenancies 4.Should Waiver Be Permissible?

5. Tenant’s Right to Transfer: DQ6.01 Waiver Permissible? Restatement says Waiver OK if “freely bargained for.” Some States say NO. Qs on Right to Transfer?

6. Selected Issues in Landlord/Tenant Law ADJUSTMENTS DUE TO TIME CONSTRAINTS No Longer Eligible for Testing: No Longer Eligible for Testing: Policy Qs re Whether Provisions Should Be Waivable Policy Qs re Whether Provisions Should Be Waivable Should Know Where States Differ on Existence of Waiver Should Know Where States Differ on Existence of Waiver Details of Notice Requirements Details of Notice Requirements Should Know Where Some Form of Notice Required Should Know Where Some Form of Notice Required

7. Selected Issues in Landlord/Tenant Law ADJUSTMENTS DUE TO TIME CONSTRAINTS Updated Description of Assignments on Course Page Updated Description of Assignments on Course Page Some Notes & DQs Dropped Some Notes & DQs Dropped “Tempest at Teapot” Problem Assignments Redone “Tempest at Teapot” Problem Assignments Redone I Gave You Relevant Statutory/Housing Code Provisions I Gave You Relevant Statutory/Housing Code Provisions Don’t Have to Scan Rest for Possible Application Don’t Have to Scan Rest for Possible Application Provisions Listed = Testable for Final Exam Provisions Listed = Testable for Final Exam Now Not Asking You to Represent Clients. Instead: Now Not Asking You to Represent Clients. Instead: Identify/Explain Relevant Statutory Language Identify/Explain Relevant Statutory Language Arguments re Possible Meaning (Where Unclear) Arguments re Possible Meaning (Where Unclear)

8. Selected Issues in Landlord/Tenant Law I.Legitimate Interests of Tenants & Landlords II. Habitability & Related Issues A. Overview B. Quiet Enjoyment/Constructive Eviction C. Implied Warranty of Habitability & Related Doctrines D. Problems 1.Tempest at the Teapot Statutory Problem (Thursday) 2. Review Problems 6F & 6G (Friday)

9. Habitability = Duties of LDLD re Physical Condition 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

10. Habitability = Duties of LDLD re Physical Condition 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

11. Habitability = Duties of LDLD re Physical Condition of Premises Changes Over Time A. Social Changes B. Legal Changes 1.Courts increasingly protect tenants a. Quiet Enjoyment/Constr. Eviction (early 20 th C  ) b.IWH & related doctrines (1960s  ) c.Note Barash & Gurian simultaneous w Javins 2.Most States Adopt Detailed LT Statutes (at least for Residential)

12. Habitability = Duties of LDLD re Physical Condition of Premises Responsible For Sense of … A.Nature & Extent of LDLD Duties B.Remedies Available to TNT C.Waivability

13. Selected Issues in Landlord/Tenant Law I.Legitimate Interests of Tenants & Landlords II. Habitability & Related Issues A. Overview B. Quiet Enjoyment/Constructive Eviction C. Implied Warranty of Habitability & Related Doctrines D. Problems 1.Tempest at the Teapot Statutory Problem (Thursday) 2. Review Problems 6F & 6G (Friday)

14. 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?

15. Three Relevant Doctrines Exam Prep Note: Claims Overlap & All 3 Can Arise from Same Facts (See Review Problem 6G & Old Exam Q 4U) 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)

16. Overview of Quiet Enjoyment/ Constructive Eviction Barash (P602) 2 Penn Plaza: Office Building No A/C Nights & Weekends BUT Lease Says This

17. Overview of Quiet Enjoyment/ Constructive Eviction Gurian (P605) 301 E. 69 th St. (Apt. 18E) Problems on Terrace (“Prime Factor” in Entering Lease) – A/C  Green Fluid/Stream of Water (cf. Nickelodeon) – Incinerator  Ash Particles

18. (1) Partial Actual Eviction (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 b. 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

19. (1)Partial Actual Eviction (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

20. (1)Partial Actual Eviction (1)Partial Actual Eviction: In Cases Gurian doesn’t rely on; reads Barash to say 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

21. (2) Constructive Eviction: (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”

22. (2) Constructive Eviction: (2) Constructive Eviction: Nature of Claim T’s REMEDY: Terminate Lease (Leave + Stop Paying Rent) Gurian: Must Act w Reasonable Promptness EXAMPLES Physical Blocking of Access L Acts That Effectively Exclude Reasonable T (cf. Knudsen) L’s Failure to Maintain  Effectively Excludes Reasonable T

23. (2) Constructive Eviction: (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

24. (2) Constructive Eviction: (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

25. (3) PARTIAL Constructive Eviction: (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

26. (3) PARTIAL Constructive Eviction: (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 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

27. (3) PARTIAL Constructive Eviction: (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

28. (3) PARTIAL Constructive Eviction: (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

29. Quiet Enjoyment Claims: Actionable Interference 1.Must Be Attributable To L (Note 4 P609-10) – Hard Qs Involve Actions of Other Tenants – Trend: L Responsible if has Right to Control T’s Acts 2.MUST BE “SUBSTANTIAL” (Note 3 P609) – Relatively Meaningless Standard w/o Examples or Explanation – DQ6.04 designed to try to help you think about how to quantify

30. EVERGLADES: DQ6.04 EGRET IN MANGROVE SWAMP

31. Everglades: DQ6.04: Meaning of Substantial Interference a)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 – Clearly Insubstantial IF – Clearly Substantial IF – Hard to Say IF

32. Selected Issues in Landlord/Tenant Law I.Legitimate Interests of Tenants & Landlords II. Habitability & Related Issues A. Overview B. Quiet Enjoyment/Constructive Eviction. Implied Warranty of Habitability & Related Doctrines C. Implied Warranty of Habitability & Related Doctrines D. Problems 1.Tempest at the Teapot Statutory Problem (Thursday) 2. Review Problems 6F & 6G (Friday)

33. IMPLIED WARRANTY OF HABITABILITY(IWH): Overview Traditional: No L Duties w/o Lease Term From Early Twentieth Century: Constructive Eviction Evolves Most Cities Adopt Building/Housing Codes

34. IWH: Intermediate Step Illegal Lease Theory See Brown (discussed in Javins @ P617-18) Housing Code violations severe enough to make occupancy of unit illegal (Problems must exist at start of lease)

35. IWH: Intermediate Step Illegal Lease Theory See Brown (discussed in Javins @ P678-79) Housing Code violations severe enough to make occupancy of unit illegal (Problems must exist at start of lease) Remedy: Lease is Void Tenant free from rent obligationsTenant free from rent obligations

36. IWH: Intermediate Step Illegal Lease Theory See Brown (discussed in Javins @ P678-79) Housing Code violations severe enough to make occupancy of unit illegal (Problems must exist at start of lease) Remedy: Lease is Void; Tenant owes no rent BUT w/o lease, LDLD can evict right awayBUT w/o lease, LDLD can evict right away & TNT can’t rely on helpful lease provisions& TNT can’t rely on helpful lease provisions

37. IMPLIED WARRANTY OF HABITABILITY(IWH): Overview Traditional: No L Duties w/o Lease Term From Early Twentieth Century: Constructive Eviction Evolves Most Cities Adopt Building/Housing Codes 1965-1985: Most States Adopt IWH Some State Supreme Courts (& D.C. Cir.) Do as Common Law See Javins @ P615-17 Justifying Evolution of Common Law Lot of State Legislatures Pass Statutes Adopting Versions of IWH (incl FL)

38. cf. Products Liability JUSTIFICATIONS FOR IWH cf. Products Liability Reasonable Expectations of Residential T L in better position to repair etc. Concern re unequal bargaining power Public Policy re condition of Housing Reality that Housing Codes not tightly enforced by gov’t

39. OPERATION OF IWH: KEY Qs 1.What Constitutes Breach? 2.Available Remedies? 3.Notice & Time to Cure Required? 4.Waivable?

40. OPERATION OF IWH: 1. What Constitutes Breach? Legal Test Varies by State (see N.3 P620-21) Some States Tie to Breaches of Housing Code – E.g., Javins – Can’t be de minimis (see footnote 60 on P619) Some States Adopt More General Legal Test Florida §83.51 (S116-17)(Part of Statutory Problem Tomorrow) Housing Codes Where Applicable List of Requirements if No Applicable Housing Code

41. OPERATION OF IWH 2. Available Remedies? Generally Traditional Contract Remedies Available Rescission  BUT = No Housing Damages [Detailed in N.6 P621-23 (unassigned)]  BUT Very Slow

42. OPERATION OF IWH 2. Available Remedies? Generally Traditional Contract Remedies Available Rescission  No Housing Damages  Very Slow Many States Add More Tenant-Friendly Remedies (see N.7 P684-85) Withholding Rent/Rent Abatement T may have to put rent in escrow (see P619 Javins fn67) Repair & Deduct These are the Real Teeth for Tnts

43. OLYMPIC: DQ6.06: Available Statutory Remedies for Ldld Breach re Habitability? EEL GLACIER

44. OPERATION OF IWH 2. Available Remedies? OLYMPIC DQ6.06: Remedies in Florida Statutes 1.§83.54 (S118): Civil Suit. 2.§83.56(1) (S118): Termination of Lease (with proper notice) 3.§83.60 (S121): Withholding Rent: Procedural Requirements?

45. OPERATION OF IWH 2. Available Remedies? OLYMPIC DQ6.06: Remedies in Florida Statutes 1.§83.54 (S118): Civil Suit. (per Wooodbury) 2.§83.56(1) (S118): Termination of Lease (with proper notice) 3.§83.60 (S121): Withholding Rent: Procedural Requirements? Subsection (1): Proper notice Subsection (2): If defending a suit for non-payment of rent on basis of IWH violation, tenant must pay amount due into court registry to maintain claim. 4.Repair & Deduct? Not Provided by Fl. Stat.

46. OPERATION OF IWH: 3. Notice & Time to Cure? Usually to Invoke IWH, T Must : Provide Notice of Problem to L – Not Responsible for Details Allow L Reasonable Time to Cure

47. OPERATION OF IWH 4. Waivable? Varies by State & Circumstances Most States: IWH Not Waivable Some States: Depends on Freely Bargained v. Boilerplate FL §83.51: Can waive all requirements for single family home & duplex; some not waivable for apt in multi-unit building Policy Debate Over Waivability Now Outside Scope of Course; See Note 11 (P625-27) If You’re Interested

48. SCOPE OF IWH: Possible Extensions of IWH: Policy Qs Assume we are in state where IWH and Key Remedies are entirely products of common law development (no statutes). Should state courts extend IWH & Remedies to …

49. SCOPE OF IWH: Possible Extensions of IWH: Policy Qs DQ6.07 (Sequoia Thursday): Should We Extend IWH & Remedies to Cover [Small] Commercial Tenants? Done in a Few States; See N.10 P624-25 Rev. Prob. 6F (S140) (Acadia Friday): Should We Extend IWH Remedies to Substantial Problems with Amenities that are Not Needed for Minimum Habitability Standards (Pool, Dishwasher, etc.)?

50. SCOPE OF IWH: Possible Extensions of IWH: Policy Qs Knudsen & DQ6.08 (Sequoia Thursday): If Ldld Rents Neighboring Unit to “Undesirable” Tenant, Is Tenant Entitled to Terminate Lease or Receive Other Remedy… Under IWH? Under Constructive Eviction Theory?