1. 2-21-17 NATIONAL STICKY BUN DAY
PROPERTY A SLIDES
NATIONAL STICKY BUN DAY

2. Chinchilla * Ezell * Kafka
Music to Accompany Barrash & Gurian Stevie Wonder, The Definitive Collection featuring “You Haven’t Done Nothin’”
Lunch Today
Meet on 11:55
Chinchilla * Ezell * Kafka
Kasten * Minyard
Normand * Roberts
Logistics:
Two Opportunities to Submit Sample Exam Answers
1st Window = 3/1-3/15
I’ll Post Instructions by Noon Tomorrow.
Read Through & if Qs

3. 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)
Eviction Under the Florida Statutes
Ldld’s Selection of Tnts :Statutory Anti-Discrimination Law & The Right to Transfer
Overview
Sorenson & Proof of Discriminatory Intent
Funk & “Reasonable” Refusals to Allow Transfer (Cont’d)
Review Problems
Habitability & Related Issues

4. TENANT’S RIGHT TO TRANSFER: REASONABLENESS ISSUES
Common provision:
“No transfer w/o consent of landlord”
Meaning of “Reasonable” Withholding of Consent (cont’d)
Should Courts Imply “Reasonableness”?
Commercial Tenancies
Residential Tenancies
If We Imply Reasonableness, Should Tenant Be Able to Waive?

5. TENANT’S RIGHT TO TRANSFER: MEANING OF “REASONABLE”
LEGITIMATE CONCERNS (Recap)
Assurances re Rent
Assurances re Use & Care of Premises
Proposed Use:
Need for Alterations
Legality
Compatible w Other Tenants

6. TENANT’S RIGHT TO TRANSFER: MEANING OF “REASONABLE”
NOT LEGITIMATE CONCERNS (Recap)
Personal Taste, Sensibility or Convenience (Funk)
Lever to Change Lease Terms (esp. T expectations re $) (Funk)
Other Cases: Collateral Economic Advantage (e.g., Filling Other Units)

7. TENANT’S RIGHT TO TRANSFER: MEANING OF “REASONABLE”
Yeshiva (Note 3 P649-50):
L wanted to exclude Planned Parenthood b/c of religious concerns re providing contraception
Language from case (must be “readily measurable criteria” relevant to “any landlord”) suggests religious concerns not OK.
BUT also issue of inconsistent application by L
Birth control courses taught in Hospital run by L
So doesn’t look like bona fide religious concern
Asked if hospital courses were embarassment to L, official replied, “Well, they're in the Bronx."

8. SEQUOIA: DQ
SEQUOIAS

9. TENANT’S RIGHT TO TRANSFER: MEANING OF “REASONABLE”
DQ2.11 (Sequoia)
L Doesn’t Like Food Served by Proposed Transferee Restaurant
Bait & Switch (T wants to transfer to previously rejected applicant; no financial reason to reject)
Political Objections
We’ll Come Back to (b) & (c) in More Detail with Rev Prob 2F on Thursday

10. TENANT’S RIGHT TO TRANSFER: REASONABLENESS ISSUES
Common provision:
“No transfer w/o consent of landlord”
Meaning of “Reasonable” Withholding of Consent
Should Courts Imply “Reasonableness”?
Commercial Tenancies 
Residential Tenancies
If We Imply Reasonableness, Should Tenant Be Able to Waive?

11. TENANT’S RIGHT TO TRANSFER: DQ2.10: Imply Reasonableness?
Commercial: PROS
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
Commercial: CONS
Rewriting Contract
Interferes w L’s Control of Own Property
May Lead to Lot of Litigation
SEQUOIA: Why Might Residential Be Different?

12. TENANT’S RIGHT TO TRANSFER: DQ2.10: Imply Reasonableness
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

13. TENANT’S RIGHT TO TRANSFER: REASONABLENESS ISSUES
Meaning of “Reasonable” Withholding of Consent
Should Courts Imply “Reasonableness”?
If We Imply Reasonableness, Should Tenant Be Able to Waive?
Default Rule v. State-Imposed Non-Waivable Lease Term
Recurring Issue in Landlord-Tenant Law (& Other Types of Contracts with Strong Public Policy Implications)

14. TENANT’S RIGHT TO TRANSFER: REASONABLENESS ISSUES
Meaning of “Reasonable” Withholding of Consent
Should Courts Imply “Reasonableness”?
If We Imply Reasonableness, Should Tenant Be Able to Waive?
Restatement says Waiver OK if “freely bargained for.”
Some States say NO, especially for Residential Leases
We’ll Do Pros & Cons for Comm’l Leases in Rev. Prob. 2F
Qs on Right to Transfer?

15. Right to Transfer: Possible Overlap with Anti-Discrimination Law
A. L Refuses Transfer Requested by T for Specific Reason
T & Potential Transferee Claim:
Actual Reason for Refusal was Unlawful Discrimination
“Legitimate” Reason Provided is “Unreasonable”
See Review Problems 2G & 2L

16. Landlord’s Selection of Tenants : Review Problems
Review Problem 2D (Issue-Spotter: Discriminatory Intent)
In Class Next (ACADIA/BADLANDS)
Review Problem 2F (Opinion/Dissent: Right to Transfer)
In Class Thursday (OLYMPIC/SEQUOIA)
Review Problem 2G (Short Problem: Right to Transfer & Knudsen)
DF 3/7 & 3/9
Review Problem 2L (Part b) (Both)
In Class Next Monday (EVERGLADES/BADLANDS)

17. FINAL EXAM QUESTIONS Choose Three of Four
XQ1: LAWYERING
XQ2: SHORT ANSWERS (Choose Three of Four)
XQ3: OPINION/DISSENT
XQ4: TRADITIONAL ISSUE-SPOTTER

18. FINAL EXAM QUESTION 3 OPINION/DISSENT
Instructions Will Say (Roughly) …
Based on the information presented here, draft the analysis sections of a majority opinion for the [Name-of-State] Supreme Court and of a shorter concurrence or dissent, deciding [the legal question(s) indicated].

19. FINAL EXAM QUESTION 3 OPINION/DISSENT
Task: Choose & Defend Rules for a Specific Legal Issue
Describe and Defend Two Positions
Utilize Range of Relevant Arguments from Course. E.g.,
Policy from Relevant Area
Ease of Application/Institutional Competence
Likely Effects on Behavior of Relevant Parties
Application to Facts & Resolution of Case Much Less Important Than Defense of Rule

20. FINAL EXAM QUESTION 3 OPINION/DISSENT
Task: Choose & Defend Rules for a Specific Legal Issue
Take on Role of State Supreme Court
Setting Rules for Lots of Cases While Deciding One Case
Can Choose to Affirm or Modify Precedent; Must Defend
Always 2 or More Lower Court Positions in Q as Starting Points
Ideally Both Your Opinions Address Own Weaknesses
Acknowledge & Address Problems w Own Position
Address Other Side’s Best Points

21. FINAL EXAM QUESTION 3 OPINION/DISSENT
Read Specific Instructions Carefully
(E.g., Rev Prob 2F where Ainsworth S.Ct. granted review to decide two legal Qs):
Compose drafts of the analysis sections of a majority opinion … and of a shorter dissent, deciding these Qs ….
Both your majority and your dissent should address both of the disputed Qs and the dissent should disagree with the majority about both, even if it ultimately agrees with the majority about who wins….

22. Review Problem 2F(S44-45) Opinion/Dissent for Thursday
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 requirement
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.”

23. Review Problem 2F(S44-45) Opinion/Dissent Arguments for Thursday
Is Reasonableness Req’mt Waivable in Comm’l Lease?
SEQUOIA: Yes if Arm’s Length Agreement
OLYMPIC: Never
Were L’s Reasons for Denying Consent “Reasonable”?
SEQUOIA: In Comm’l Lease, Not Ltd. to Ldld’s Economic Interests
OK to Deny Already-Rejected Tenant
OK to Exercise Political Belief
OLYMPIC: In Comm’l Lease, Ltd to Ldld’s Economic Interests
Be Ready to Identify Problems with Types of Reasons Here

24. NEXT THURSDAY (3/2) Review Problem 2J(S57-58) Opinion/Dissent Arguments ACADIA/BADLANDS/EVERGLADES

25. REVIEW PROBLEM 2D ACADIA BADLANDS for Benjamin for Rebecca
Acadia Sunrise
NORBECK PASS

26. REVIEW PROBLEM 2D ACADIA for Benjamin; BADLANDS for Rebecca
Possible Discriminatory Reasons for Rejection
Religion (Not Jewish Enough)
Inter-Racial or Inter-Faith Relationship
Israeli
ACADIA: Possible Non-Discriminatory Reasons?

27. REVIEW PROBLEM 2D ACADIA for Benjamin; BADLANDS for Rebecca
Possible Discriminatory Reasons: Religion; Inter-Racial or Inter-Faith Relationship; Israeli
Possible Non-Discrim. Reasons: Gen’l Rudeness/Attitude; Disrespect for Religion
BOTH: Significance of Specific Facts?
Rebecca Regularly wears Star of David
Chris wears an earring in the shape of a cross
Ben says “Black, Red, Green, Whatever. No Problem.”
Rebecca says “Part of the reason I left Israel is so I don’t have rabbis watching everything I do.”

28. REVIEW PROBLEM 2D ACADIA for Benjamin; BADLANDS for Rebecca
Possible Discriminatory Reasons: Religion; Inter-Racial or Inter-Faith Relationship; Israeli
Possible Non-Discrim. Reasons: Gen’l Rudeness/Attitude; Disrespect for Religion
BADLANDS: Other Evidence Supporting Discriminatory Reasons?
ACADIA: Other Evidence Supporting Non-Discriminatory Reasons?
BOTH: Stronger Position Overall? Because?
I’ll Post Comments & Best Answers
in Update of Info Memo #3 This Weekend