1. PROPERTY D SLIDES 4-21-14

2. Monday April 21: Music Stevie Wonder, The Definitive Collection CRITIQUES READY FOR PICK-UP Rev. Prob. 6B (Biscayne) Rev. Prob. 6F (Redwood) INFO MEMOS POSTED ON COURSE PAGE IM#3: Eminent Domain IM#4: Wills & Intestacy IM#5: Adverse Possession IM#6: Easements

3. PROPERTY D: 4/21 Best Use of Leftover Easter Candy Ever: Best Use of Leftover Easter Candy Ever:LordofthePeeps.com

4. 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.Review Problems 7E & 7F 2.Statutory Problem: Tempest at Teapot

5. 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?

6. Three Relevant Doctrines Exam Prep Note: Claims Overlap & All 3 Can Arise from Same Facts (See Review Problem 6C & Old Exam Q 4U) Direct Physical Exclusion Non-Physical or Indirect Exclusion Whole Premises Actual EvictionConstructive Eviction Part of Premises Partial Actual Eviction Partial Constructive Eviction (Some States)

7. Overview of Quiet Enjoyment/ Constructive Eviction Barash (P662) 2 Penn Plaza: Office Building No A/C Nights & Weekends BUT Lease Says This

8. Overview of Quiet Enjoyment/ Constructive Eviction (bad omen) Gurian (P666) (bad omen) 301 E. 69 th St. (Apt. 18E) Problems on Terrace – Terrace = “Prime Factor” in Entering Lease – A/C  Green Fluid/Stream of Water – Incinerator  Ash Particles

9. Partial Actual Eviction 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

10. Partial Actual Eviction 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

11. Partial Actual Eviction Partial Actual Eviction: In Cases Gurian doesn’t rely on; reads Barash to say very ltd. 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

12. Constructive Eviction: 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: “L’s wrongful act substantially & materially deprives the T of the beneficial use & enjoyment of the premises” (P664)

13. Constructive Eviction: 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 – L’s Failure to Maintain  Effectively Excludes Reasonable T

14. Constructive Eviction: Constructive Eviction: In Cases (GLACIER DQ95) 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

15. Constructive Eviction: Constructive Eviction: In Cases (GLACIER DQ95) 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

16. PARTIAL Constructive Eviction: 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

17. PARTIAL Constructive Eviction: 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

18. PARTIAL Constructive Eviction: 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

19. PARTIAL Constructive Eviction: 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

20. Quiet Enjoyment Claims: Actionable Interference 1.Must Be Attributable To L (Note 4 P670-71) – Hard Qs Involve Actions of Other Tenants – Trend: L Responsible if has Right to Control T’s Acts 2.MUST BE “SUBSTANTIAL” (Note 3 P670) – Relatively Meaningless Standard w/o Examples or Explanation – DQ7.04 designed to try to help you think about how to quantify

21. REDWOOD: DQ7.04 REDWOODS & FERNS

22. Redwood: DQ7.04: 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

23. 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.Review Problems 7E & 7F 2.Statutory Problem: Statutory Problem: Tempest at Teapot

24. 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

25. 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)

26. 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

27. 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

28. 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 @ P673 Justifying Evolution of Common Law – Lot of State Legislatures Pass Statutes Adopting Versions of IWH (incl FL)

29. 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

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

31. OPERATION OF IWH: 1. What Constitutes Breach? Legal Test Varies by State (see N.3 P682) Some States Tie to Breaches of Housing Code – E.g., Javins – Can’t be de minimis (see footnote 60 on P680) Some States Adopt More General Legal Test Florida §83.51 (S158-59) (Part of Statutory Problem Tomorrow) Housing Codes if Applicable List of Requirements if No Housing Code

32. OPERATION OF IWH 2. Available Remedies? Generally Traditional Contract Remedies Available Rescission  No Housing Damages [Detailed in N.5 P682-83 (unassigned)]  Very Slow

33. 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.6 P684-85) Withholding Rent/Rent Abatement T may have to put rent in escrow (see P680 Javins fn67) Repair & Deduct These are the Real Teeth for Tnts

34. OPERATION OF IWH 2. Available Remedies? DQ7.06: Remedies in Florida Statutes 1.§83.56(1) (S160): Termination of Lease (with proper notice) 2.§83.60 (S163): Withholding rent (with proper notice). 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. 3.No repair and deduct provision.

35. OPERATION OF IWH: 3. Notice & Time to Cure? Usually to Invoke IWH, T Must (see Note 4 P682): – Provide Notice of Problem to L – (We’ll look at with Statutory Problem) – Allow L Reasonable Time to Cure

36. OPERATION OF IWH 4. Waivable? Varies by State & Circumstances (see N.7 P685) Most States: IWH Not Waivable Some States: Freely Bargained v. Boilerplate FL §83.51 (S158-59): Can waive all requirements for single family home & duplex; some not waivable for apt in multi-unit building

37. OPERATION OF IWH 4. Waivable?: Policy Debate Some Relevant Points in N.10 (P686-88) Arguments for No Waiver Rule Include: – Otherwise, L Might Force Bad Conditions on Ts w/o Bargaining Power – Public Policy re Minimum Quality of Housing

38. OPERATION OF IWH 4. Waivable: Policy Debate DQ7.05: Harms to Ts or Market if Non-Waivable? 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 abandonment). BUT may encourage Ls to do preventative maintenance to avoid costly repairs later.

39. OPERATION OF IWH: Actual Impact of Non- Waivable IWH? Probably less low-end rental housing than in 1970. 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 Qs on Habitability Issues?

40. Final Exam Basically Complete Your Questions Will Look Like Old Exam Questions in Terms of Form & Level of Difficulty Coverage: – Chapters 1-3 in One Question or Problem Each – Chapters 5-7 in Two Questions or Problems Each – Several Issues from Review Problems that were Critiqued Includes Names of Arches & Biscaynes plus Ben + Abraham, Franks, James, Newman, Rosenn, Widen Exam has Theme …

42. Seven Dwarfs  Seven Questions/ProblemsBashful Happy Sneezy Doc Sleepy Grumpy Dopey

43. LOGISTICS & SCHEDULE Today & Tomorrow: Normal Class Times & Office Hours Wednesday: Final Class (7:55-9:20 Here) After Class: – I’ll Post Exam Instructions & Syllabus – I’ll Post Info Memo #7 (Chapter 7) Thursday-Saturday: – Afternoon Office Hours (See Course Page) – I’ll Contact Students as Feedback is Ready on Sample Exam Answers Saturday : Review Session @ 6:30 pm Here Will Be Taped & Slides Posted I’ll Do Last Set of Advice About Each Type of Q I’ll Take Qs About Exam Technique, Then About Substance – Sunday Office Hours 10-2; 3-7 & E-Mail Qs Until 7

44. 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 …

45. SCOPE OF IWH: Possible Extensions of IWH: Policy Qs DQ7.07 (S169) (Yellowstone): Should We Extend IWH & Remedies to Cover [Small] Commercial Tenants? Done in a Few States; See N.9 P685-86 Rev. Prob. 7E (S182) (Biscayne): Should We Extend IWH Remedies to Substantial Problems with Amenities that are Not Needed for Minimum Habitability Standards (Pool, Dishwasher, etc.)?