1. PROPERTY B SLIDES
PRESIDENTS DAY

2. Monday Pop Culture Quiz
Music to Accompany Funk: Rick James, Street Songs (1981) featuring “Below the Funk” and “Superfreak”
Lunch Tomorrow
Meet on 12:25
Davies * Kaufman * Needell
Perlaza * Rivero * Rosenberg
Templer
Name the Musical Group:
1st Billboard #1 Hit in 1958
Won 5 Grammys; Nominated for 8 More
Featured in Major Studio Motion Picture in 2013
Monday Pop Culture Quiz

3. MONday Pop Culture QUIZ
Name the Musical Group:
1st Billboard #1 Hit in 1958
Won 5 Grammys; Nominated for 8 More
Featured in Major Studio Motion Picture in 2013

4. MONday Pop Culture QUIZ
Name the Musical Group:
1st Billboard #1 Hit in 1958
Won 5 Grammys; Nominated for 8 More
Featured in Major Studio Motion Picture in 2013

5. Previously in Property B
Finished Work on Chapter 1
JMB, Schmid & First Amendment Access to Malls: Review Problems 1L, 1M, 1P(i)
Intro to XQ4: Issue-Spotter
Eviction Under the Florida Statutes & Review Problem 2A

6. Previously in Property B
Intro to Fed’l Anti-Discrimination Law
Details of FHA & Civil Rights Act of (DQ )
Sorenson & Proof of Discriminatory Intent

7. LOGISTICS Next Few DF Sessions:
On Course Page: Syllabus & Assmt Sheet for Rest of Chapter 2. Chapter 3 to Follow Soon.
Next Few DF Sessions:
Current: Rev Prob 2B (Brendan)
9:40 Here
Then: Rev Prob 2E (Lauren)
9:40 Here
9:40 Here
Then: Rev Prob 2G Next Mon (Brendan) & Wed (Lauren)

8. REVIEW PROBLEM 2D EVERYONE IS ON-CALL; I’LL ASSIGN 4 PEOPLE TO EACH SIDE & TAKE ADDITIONAL IDEAS FROM VOLUNTEERS
Possible Discriminatory Reasons for Rejection
Religion (Not Jewish Enough)
Inter-Racial or Inter-Faith Relationship
Israeli
Possible Non-Discriminatory Reasons?
Significance of Specific Facts?
Other Evidence Supporting Discriminatory Reasons?
Other Evidence Supporting Non-Discriminatory Reasons?
Stronger Position Overall? Because?

9. PreSIDENTs’ DAY SPECIAL: SET 1
9. William Henry Harrison Zachary Taylor

10. PreSIDENTs’ DAY SPECIAL: SET 1 Representing BENJAMIN (LANDORD)
9. William HENRY HARRISON 12. ZACHARY TAYLOR

11. PreSIDENTs’ DAY SPECIAL: SET 2
19. Rutherford Benjamin Herbert John F. “Jack”
B. Hayes Harrison Hoover Kennedy

12. PreSIDENTs’ DAY SPECIAL: SET 2 Representing REBECCA (APPLICANT)
19. Rutherford BENJAMIN Herbert JOHN F. “JACK”
B. HAY[e]S Harrison HOOVER Kennedy

13. PreSIDENTs’ DAY SPECIAL: SET 3
1. George John 4, James
Washington Adams Madison

14. PreSIDENTs’ DAY SPECIAL: SET 3 ALTERNATES
1. GEORGE 2. John 4, James
Washington ADAM[s] MADISON

15. Possible Discriminatory Reasons for Rejection
Pres9-12: Moreno-Zipper-Kotoske-Kaufman for Benjamin; Pres19-35: Hays-Eastman-Hoover-Doty for Rebecca
Possible Discriminatory Reasons for Rejection
Religion (Not Jewish Enough)
Inter-Racial or Inter-Faith Relationship
Israeli
Pres9-12: Possible Non-Discriminatory Reasons?

16. Pres9-12: Moreno-Zipper-Kotoske-Kaufman for Benjamin; Pres19-35: Hays-Eastman-Hoover-Doty for Rebecca
Possible Discriminatory Reasons: Religion; Inter-Racial or Inter-Faith Relationship; Israeli
Possible Non-Discrim. Reasons: Gen’l Rudeness/Attitude; Disrespect for Religion
ALL: 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.”

17. Pres9-12: Moreno-Zipper-Kotoske-Kaufman for Benjamin; Pres19-35: Hays-Eastman-Hoover-Doty for Rebecca
Possible Discriminatory Reasons: Religion; Inter-Racial or Inter-Faith Relationship; Israeli
Possible Non-Discrim. Reasons: Gen’l Rudeness/Attitude; Disrespect for Religion
Pres19-35: Other Evidence Supporting Discriminatory Reasons?
Pres9-12: Other Evidence Supporting Non-Discriminatory Reasons?
ALL: Stronger Position Overall? Because?
I’ll Post Comments & Best Answers on This (& 2B)
in Update of Chapter 2 Info Memo After Class Today

18. Chapter 2. Leased But Not Last: Selected Issues in Landlord/Tenant Law
The Importance of Context:
The Ldld’s Right to Exclude (& Legitimate Interests of Tnts)
Eviction Under the Florida Statutes
Statutory Anti-Discrimination Law & The Right to Transfer
Introduction to Fed’l Fair Housing Statutes
Sorenson & Proof of Discriminatory Intent
Funk & “Reasonable” Refusals to Allow Transfer
Review Problems
Habitability & Related Issues

19. TENANT’S RIGHT TO TRANSFER: ASSIGNMENT v. SUBLEASE
Two Types of Transfers
Assignment:
T Transfers Entire Lease Term to “Assignee”
T Still Responsible to L, BUT L and Assignee Also Generally Directly Responsible to Each Other for Lease Terms
Sublease:
T Transfers Less Than Entire Lease Term to “Sublessee”
T Still Responsible to L; Sublessee and L Generally NOT Directly Responsible to Each Other for Lease Terms

20. TENANT’S RIGHT TO TRANSFER: BACKGROUND RULES
T Right to Transfer Unless Lease Says Otherwise
Limits in Lease Read Narrowly: “No Subleases” = Assignments Allowed (and vice-versa)
Part of Pro-Alienation Policy Favoring Easy Transfer of Land (We’ll See Again in Chapter Three). Easy Transfer Helpful Where …
E.g., Tenant in Long-Term Lease Gets New Job Across Country
E.g., 3d Party Business Can Make Much More $$$ Off Land than Present Tenant

21. 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?

22. TENANT’S RIGHT TO TRANSFER: MEANING 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?

23. TENANT’S RIGHT TO TRANSFER: MEANING OF “REASONABLE”
What is “reasonable” in these contexts?
Funk: look to what a “reasonable man in the L’s position” would do. (Thanks!!)

24. TENANT’S RIGHT TO TRANSFER: MEANING OF “REASONABLE”
LEGITIMATE CONCERNS
Assurances re Ability to Pay Rent
Assurances re Use & Care of Premises
Proposed Use:
Need for Alterations
Legality
Compatible w Other Tenants (E.g., in Malls)

25. TENANT’S RIGHT TO TRANSFER: MEANING OF “REASONABLE”
NOT LEGITIMATE CONCERNS
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)
Note: In Appropriate Context You Can Argue That Cases We’ve Read Are Wrong

26. 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
Useful 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 embarrassment to L, official replied, “Well, they're in the Bronx."

27. OLYMPIC: DQ
EEL GLACIER

28. TENANT’S RIGHT TO TRANSFER: MEANING OF “REASONABLE”
DQ2.11 (Olympic)
L Doesn’t Like Food Served by Proposed Transferee Restaurant (See Rev Prob 2E in DF Wed & Fri)
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

29. 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?

30. 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
OLYMPIC: Why Might Residential Be Different?

31. 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

32. 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)

33. 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?

34. 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

35. Landlord’s Selection of Tenants : More Review Problems
Review Problem 2E (Short Problem; Right to Transfer)
DF Wed & Fri
Review Problem 2F (Opinion/Dissent: Right to Transfer)
In Class Wednesday (ACADIA/BADLANDS)
Review Problem 2H (Short Problem: Right to Transfer & Knudsen)
DF 3/1 & 3/4
Review Problem 2L (Part b) (Both)
In Class Fri/Mon (OLYMPIC/SEQUOIA)

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

37. 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].

38. 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

39. 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

40. 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….

41. Review Problem 2F(S45-46) Opinion/Dissent for Wednesday
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.”

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

43. 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

44. 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

45. 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