1. 2-23-17 NATIONAL BANANA BREAD DAY
PROPERTY A SLIDES
NATIONAL BANANA BREAD DAY

2. Lunch Tomorrow Now On Course Page: Meet on Bricks @ 12:25
Music to Accompany Javins: Simon & Garfunkel, Greatest Hits (1972) featuring “Bridge Over Troubled Water” (1970)
Lunch Tomorrow
Meet on 12:25
Criddle * Harreveld
Monteiro * Pollitt
Sirenord
Now On Course Page:
Revised Chapter 2 Supplement (Edits to Last 2 Pages)
In Exam Section at Bottom:
Instructions for Submitting Sample Answers for My Review
Banks of Old Exam QI, QIII, QIV

3. Review Problem 2F OLYMPIC SEQUOIA (for Affirmance) (for Reversal)
EEL GLACIER
SEQUOIAS

4. Review Problem 2F(S44-45) Opinion/Dissent: General Background
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 req’mt
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.”
L refuses T attempt to transfer lease rights to PP; “no problem” w financial credentials BUT:
CEO of PP was “outspoken public advocate” of political positions L “sharply disagreed with”
5 years earlier, had denied same lease to PP

5. Review Problem 2F(S44-45) Opinion/Dissent: Lower Courts
Trial Ct (in favor of Liz).
Waiver of “reasonableness” valid if comm’l lease/arm’s length agmt.
Anyway, L’s refusal “reasonable” (even in comm’l lease):
No duty to accept a transfer to already-rejected tenant
Ldld should have right to exercise strongly-held political beliefs.
Intermediate Ct App (Reversing).
“Reasonableness” implied in all leases and non-waivable
“Reasonableness” in comm’l leases ltd to concerns related to Ldld’s economic interests.

6. Review Problem 2F(S44-45) Opinion/Dissent Arguments
Is Reasonableness Req’mt Waivable in Comm’l Lease?
SEQUOIA Arguments: Yes if Arm’s Length Agreement
OLYMPIC Arguments: Never

7. Review Problem 2F(S44-45): Opinion/Dissent Arguments
(B) Were L’s Reasons for Denying Consent “Reasonable”?
Trying to Establish Relevant Rules; Not Just Announcing Winner Here
NOT Especially Helpful Here (As Opposed to My Other Types of Exam Qs) to Speculate on Reasons Beyond What You Are Told re Why L Might Want to Exclude PP/MMM
TCt found prior rejection/political views sufficient w/o more; CtApp disagreed
Concern that customers might boycott PP inconsistent w info about finances
Concern that people might protest at site might be “reasonable” b/c raises economic concerns, but not given as reason by L or addressed by lower courts

8. Review Problem 2F(S44-45) Opinion/Dissent Arguments
(B) Were L’s Reasons for Denying Consent “Reasonable”? (Trying to Establish Relevant Rules; Not Just Announcing Winner Here)
OLYMPIC: In Comm’l Lease, Shd Be Ltd to Ldld’s Economic Interests
SEQUOIA: Not Necessary to Limit. to L’s Economic Interests (Gen’lly)
SEQ: “Reasonable” to Exercise Strong Political Belief (OLYMPIC: NOT)
SEQ: “Reasonable” to Deny Already-Rejected Tenant (OLYMPIC: NOT)

9. Review Problem 2F(S44-45) Opinion/Dissent Arguments
(B) Were L’s Reasons for Denying Consent “Reasonable”? (Trying to Establish Relevant Rules; Not Just Announcing Winner Here)
OLYMPIC: In Comm’l Lease, Shd Be Ltd to Ldld’s Economic Interests
SEQUOIA: Not Necessary to Limit. to L’s Economic Interests (Gen’lly)
SEQ: “Reasonable” to Exercise Strong Political Belief (OLYMPIC: NOT)
SEQ: “Reasonable” to Deny Already-Rejected Tenant (OLYMPIC: NOT)
Comments/Best Student Answers to 2D & 2F
Posted in Updated Info Memo #2 Later Today

10. NEXT MONDAY/TUESDAY (2/27-2/28) Review Problem 2L(b)(S59-60)
EVERGLADES: Anti-Discrimination Claim
Evidence Supporting/Refuting that S Rejected B b/c he believed B was Muslim or Arab
Last Part of Class Monday  Tuesday
BADLANDS: Reasonableness Claim (Tuesday)
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?

11. 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

12. 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

13. 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

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

15. For Each Cause of Action Discussed, Responsible For Sense of …
Habitability = Duties of LDLD re Physical Condition/Usability of Premises
For Each Cause of Action Discussed, Responsible For Sense of …
Nature & Extent of LDLD Duties
Remedies Available to TNT
Waivability

16. Possible Extension of Doctrines Addressing Habitability
Knudsen & DQ2.17 (ACADIA Monday):
If Ldld Rents Neighboring Unit to “Undesirable” Tenant, Is Tenant Entitled to Terminate Lease or Receive Other Remedy…
Under Constructive Eviction Theory?
Under IWH?

17. 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

18. 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?

19. Three Relevant Doctrines
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)
Exam Prep Note: Claims Overlap & All 3 Can Arise from Same Facts (See Review Problem 2K & 2016 Exam Q 4(a))

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

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

22. (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

23. (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

24. (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

25. (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”

26. (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

27. (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

28. (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

29. (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

30. (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

31. (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

32. (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