1. 2-22-19 NATIONAL CALIFORNIA DAY NATIONAL MARGARITA DAY
PROPERTY B SLIDES
NATIONAL CALIFORNIA DAY
NATIONAL MARGARITA DAY

2. Lunch Today Next Few DF Sessions:
Music to Accompany Knudsen Amy Winehouse, Back to Black (2007) featuring “You Know I’m No Good”
Lunch Today
Meet on Bricks
@ 12:25-ish
Bracho * Campbell
Douglas * Meric
Portes Romero
Tarpley-Fullard
Next Few DF Sessions:
Current: Rev Prob 2E (Lauren)
9:40 Here
Then: Rev Prob 2G
9:40 Here (Brendan)
9:40 Here (Lauren)
Then: Rev Prob 2H (Brendan)
12:30 Here
Monday 9:40 Here

3. REVIEW PROBLEM 2F cont’d ACADIA BADLANDS for Affirmance for Reversal
Acadia Sunrise
NORBECK PASS

4. Review Problem 2F(S45-46)(Issue #2) Opinion/Dissent: General Background
State S.Ct. grants review to decide whether “L’s reasons for rejecting [transferee] should be considered reasonable.”
L refused 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(S45-46)(Issue #2) Opinion/Dissent: Lower Courts
Trial Ct (in favor of Liz).
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” in comm’l leases ltd to concerns related to Ldld’s economic interests.

6. Review Problem 2F(S45-46)(Issue 2): Opinion/Dissent
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 (which, as far as you know, are not L’s reasons).
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

7. Review Problem 2F(S45-46)(Issue 2): Opinion/Dissent
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 Focus Heavily on Possible Factual Distinction (Politics of Actual Transferee v. Politics of CEO)
You could create a rule that made this distinction, but would need to defend
You still would need to address whether political belief could EVER be reasonable (e.g., animal rights activist & possible transferee that sells furs)

8. Review Problem 2F(S45-46) Opinion/Dissent Arguments
(B) Were L’s Reasons for Denying Consent “Reasonable”? (Trying to Establish Relevant Rules; Not Just Announcing Winner Here)
ACADIA: In Comm’l Lease, Shd Be Ltd to Ldld’s Economic Interests
BADLANDS: Not Necessary to Limit. to L’s Economic Interests (Gen’lly)
BDLDS: “Reasonable” to Exercise Strong Political Belief (ACADIA: NOT)
[BDLDS: “Reasonable” to Deny Already-Rejected Tenant (ACADIA: NOT)]

9. On Course Page Later Today:
LOGISTICS
On Course Page Later Today:
Chapter 3 Syllabus, Supplement & Assignments through 3/8
Detailed Instructions for Rev Prob 2J & Tempest in Teapot Qs
Write-Ups of Rev Probs 2E & 2F in Chapter 2 Info Memo
Some Additions to Chapter 1 Info Memo

10. 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 (IWH) & Related Doctrines
D. Problems

11. IMPLIED WARRANTY OF HABITABILITY(IWH): Overview: L’s Duty to Maintain Unit
Traditional: No L Duties w/o Express Term in Lease
From Early Twentieth Century:
Constructive Eviction Evolves
Most Cities Adopt Building/Housing Codes
See Miami-Dade Example (S49-59)
Allow Gov’t Enforcement of Minimum Standards for Residences and Commercial Buildings
Historically in Practice: Very Uneven Enforcement & Lot of Corruption (E.g., Miami-Dade & Hurricane Andrew)

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

13. IWH: Intermediate Step
Illegal Lease Theory
See Brown (discussed in P617-18)
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 obligations

14. IWH: Intermediate Step
Illegal Lease Theory
See Brown (discussed in 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 away
& TNT can’t rely on helpful lease provisions

15. 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
: Most States Adopt IWH
Some State Supreme Courts (& D.C. Cir.) Do as Common Law
See P Justifying Evolution of Common Law
Lot of State Legislatures Pass Statutory Versions of IWH
Including Florida Residential Ldld & Tnt Act (S21-32)

16. 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

17. OPERATION OF IWH: KEY Qs
What Constitutes Breach?
Available Remedies?
Notice & Time to Cure Required?
Waivable?

18. 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)
For Non-Residential Leases, Check for Similar “Building Codes”
Some States Adopt More Gen’l Legal Test
E.g., NY Statute cited in Knudsen (P629): Ldld warrants that Tnts “shall not be subject to any condition which would be dangerous … or detrimental to their life, health, or safety.”
Other similar examples in Note 3 on P620-21

19. 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
Some States Adopt More General Legal Test
Florida §83.51 (S25)(Covered in Tempest Problem Next Week)
Housing Codes Where Applicable
List of Specific Requirements if No Applicable Housing Code

20. OPERATION OF IWH 2. Available Remedies?
Generally Traditional Contract Remedies Available
Rescission  BUT = TNT Must Leave so has No Housing
Damages [Detailed in N.6 P (unassigned)]  BUT Ordinary Civil Suit Very Slow
DQ2.14 (1st Q): These are problems with Constructive Eviction Claims (along with focus on possession rather than quality of unit)

21. 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) (These are the Real Teeth for Tnts )
Withholding Rent/Rent Abatement
T simply stops paying (after proper notice)
T may have to put rent in escrow (see P619 Javins fn67)
Repair & Deduct
Both Better for Tnts b/c Remain in Housing & Relatively Quick

22. SEQUOIA: DQ
SEQUOIAS

23. OPERATION OF IWH 2. Available Remedies?
SEQUOIA DQ2.15
What Remedies Are Provided in Florida Statutes for Problems with Habitability Issues?

24. OPERATION OF IWH 2. Available Remedies?
SEQUOIA DQ2.15: Remedies in Florida Statutes
§83.54/83.55 (S26): Civil Suit.for Damages
§83.56(1) (S27): Termination of Lease (with proper notice)
§83.60 (S29-30): Withholding Rent: Procedural Requirements?
Repair & Deduct?

25. OPERATION OF IWH 2. Available Remedies?
SEQUOIA DQ2.15: Remedies in Florida Statutes
83.54/83.55 (S26): Civil Suit.for Damages
§83.56(1) (S27): Termination of Lease (with proper notice)
§83.60 (S29-30): 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.
Repair & Deduct? Not Provided by Fl. Stat.

26. OPERATION OF IWH: 3. Notice & Time to Cure?
Usually to Invoke IWH, T Must:
Provide Notice of Problem to L
Only Responsible for Details of Notice If
Florida Statute Provided -OR-
Looking for Reqmts in Lawyering Q
Allow L Reasonable Time to Cure

27. 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 (S25):
Can waive all reqmts re rentals of single family home or “duplex” (FL v. NY)
Some reqmts not waivable for apts in multi-unit building

28. OPERATION OF IWH: Waivable?
SEQUOIA: Quick Look at DQ2.14 (2d Q)
What downsides to tenants or to the housing market might there be to having non-waivable IWH?
For You on Your Own: Broader Policy Debate Over Waivability of IWH (N. 11 P625-27)
Next 2 slides on this not shown in class.

29. BONIS SLIDE: OPERATION OF IWH Consequences if No Waiver
Limits T freedom of choice by preventing 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 shift to higher end rentals or abandonment). Similarly, developers may choose not to create as much low-end housing
BUT may encourage Ls to do preventative maintenance to avoid costly repairs later. (More likely with less delapidated housing stock.

30. BONUS SLIDE: OPERATION OF IWH: Actual Impact of Non-Waivable IWH?
Probably less low-end rental housing than in 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

31. SCOPE OF IWH: Possible Extensions of IWH: Policy Qs
IWH & Key Remedies Developed to Ensure Minimally Adequate Housing
Could seek to extend the reach by
Seeking New Legislation -OR-
Where IWH/Remediess are entirely products of common law development (no statutes), can ask state courts to extend in context of appropriate litigation. …

32. SCOPE OF IWH: Possible Extensions of IWH: Policy Qs
IWH & Key Remedies Ensure
Minimally Adequate (2) Housing.
Should States Extend …
Key Remedies To Cover Substantial Problems with Amenities Not Needed for Minimum Habitability (Pool, Dryer, etc.) [Not Doing in Class; Worth Thinking About]
See Rev. Prob. 2G (S48) (DF Next Week)
Part of Rev Prob 2J that we won’t address in class

33. SCOPE OF IWH: Possible Extensions of IWH: Policy Qs
IWH & Key Remedies Ensure
Minimally Adequate (2) Housing.
Should States Extend …
Key Remedies To Problems Beyond Minimum Habitability
To Cover [Small] Commercial Tenants? (DQ2.16)
Done in a Few States; See N.10 P624-25
Can Be Called Implied Warranty of “Suitability”
Some States Allow Rent Withholding for Lease Violation but no IWH
We’ll Address as Part of Rev. Prob. 2J (S62-63)

34. Knudsen & Tenant Remedies for Undesirable Neighbors
Background
NY Sex Offender Laws
NY Roommate Act
Possible Legal Theories for Tenant Remedies
Fairness/Public Policy
Scope of the Remedy
Who can invoke?
Against whom can it be invoked?

35. Knudsen: Overview 1st bullet point edited since class.
TNT1 in NY Building Brings in as Roommate a Level 3 Registered Sex Offender (Crimes unclear; court assumes danger to young girls)
TNT2 in Neighboring Apt w 3 Young Daughters wants to move out.
LDLD refuses to allow TNT2 to Break Lease w/o Penalty.
Court holds LDLD must allow TNT2 to Leave w/o Penalty

36. Knudsen: Background N.Y. Sex Offender Law
“Registrable Offenses” = List of Crimes that involve sexual violence and/or sexual activity with minors.
“Sex Offender” = Person convicted of Registrable Offense
When Sex Offender released to community after conviction, court holds a hearing to determine risk level (likelihood of repeating same or similar offense). The court may assign one of the following three risk levels:
Level 1 (low risk of repeat offense), or
Level 2 (moderate risk of repeat offense), or
Level 3 (high risk of repeat offense and a threat to public safety exists).

37. Knudsen: Background N.Y. Sex Offender Law
When Sex Offender gets a new residence, state provides notification online and (I think) directly to neighbors.
Level of detail in the notification depends on Risk Level. For Level 3, notification includes specific address, picture & list of relevant convictions.

38. EVERGLADES: NY Roommate Act, Knudsen & DQ2.17-2.19
EGRET IN MANGROVE SWAMP

39. Knudsen: Background (EVERGLADES)
“Real Property Law §235-f prohibits a landlord from removing a registered sex offender either as a guest or occupant of a tenant’s leasehold as has occurred in this case based solely on that designation….” (P629 5th ¶)
“Real Property Law §235-f = N.Y. “Roommate Act” (1983)
DQ What does the New York Roommate Act do?

40. Knudsen: Background (EVERGLADES)
Tenants have a non-waivable right to allow (at least) one person of their choice (in addition to members of their immediate family) to live with them.
Landlords cannot prevent this, exclude the chosen roommate, or require any kind of screening.
Only limits noted in statute:
Tenant or tenant’s spouse must use unit as primary residence.
Lease can provide limit on total number of people living in unit.
Tenant must notify landlord of roommate’s occupancy
Ldld can “restrict occupancy in order to comply with federal, state or local laws, regulations, ordinances or codes.” (NONE in Knudsen)

41. Knudsen: Background (EVERGLADES)
Tenants have a non-waivable right to allow (at least) one person of their choice to live with them.
Landlords cannot prevent this, exclude/evict the chosen roommate, or require any kind of screening.
DQ2.17. Why might the NY legislature have passed the Roommate Act?

42. Knudsen: Background (EVERGLADES)
Legislative History: Trying, in light of difficulty finding affordable housing, to protect tenants’ financial interests and desire for companionship.
Thus, unlimited definition of occupant: “a person, other than a tenant or a member of a tenant's immediate family, occupying a premises with the consent of the tenant or tenants.”
Protects in 1983: unmarried heterosexual cohabitants and same-sex partners
Presumably seen as OK because tenant satisfies financial and other requirements for the tenancy and because the tenant would be responsible for bad acts of the roommate while living in the unit.

43. DQ2.18: Effect of “Roommate Act” on Knudsen
Court holds that Roommate Act “prohibits a landlord from removing a registered sex offender either as a guest or occupant of a tenant’s leasehold as has occurred in this case based solely on that designation….”
Notes that statute suggests landlord could exclude if state or local law barred sex offenders from living in that place (b/c near school, etc.) (not true in case).
Reasonable interpretation of very broad pro-tenant statute.
BUT legal category of sex offender didn’t exist in 1983, so legislature wouldn’t have anticipated this situation.
No subsequent court or legislative act has overruled/amended
QUESTIONS on ROOMMATE ACT?

44. BIG PICTURE: N.Y. “Roommate Act”
This is a statute that might appear on test. You’ll be responsible for recognizing and understanding it. Me if Qs.
Can view as limit on ldld’s right to exclude that nicely ties together ideas from whole course so far:
Protecting Ordinary Relationships of Tenants (cf. Shack)
Protecting Strong Public Policy in Tenants Ability to Afford Housing (cf. Schmid/JMB)
Huge Limit on Ldld’s Normal Right to Select /Evict Tenants (cf. Rev Prob 2B & Funk)
Implicates Habitability Issues (Knudsen)
2017 Opinion/Dissent Q: A state Supreme Court (like NJ) considering whether to adopt a common law version of Roommate Act. What arguments could you make from course materials?

45. Knudsen & Tenant Remedies for Undesirable Neighbors
Background
NY Sex Offender Laws
NY Roommate Act
Possible Legal Theories for Tenant Remedies
Fairness/Public Policy
Scope of the Remedy
Who can invoke?
Against whom can it be invoked?

46. Knudsen & Tenant Remedies for Undesirable Neighbors (EVERGLADES)
Legal Theory for Tenant Remedy
IWH?: Landlord has no choice but to allow sex offender invited as roommate by an existing tenant. Thus no breach of IWH b/c no LDLD duty.
Remedy Chosen: Problem is Refusing to Let TNT Terminate Lease (Without Penalty) . Court Says:
Remaining would be Inconsistent with Covenant of Quiet Enjoyment
Refusing Request for Termination Unconscionable/Violation of Covenant of Good Faith & Fair Dealing
THUS TNT can leave w/o Penalty