1. PROPERTY E SLIDES O4-09-13

2. NCAA Contest TOP 7 PICONE 82 GERSON81 ACCARINO66 MUSCHEL66 SEGALL64 BEREZIN53 ZORNOSA52 BOTTOM 7 AMES14 IBEH14 ORTEGA13 MUELLER12 NOEL12 SARGENT12 DOMINGUEZ11

3. BRIEF IS IN!! WHAT NOW??

4. Five Weeks of Fun TUEWEDTHUFRISATSUNMON 4/9 Property 4/124/15 Long Property 4/16 Property 4/194/22 Property 4/23 Property Property: Last Class 4/26 OH 2-6 No Class OH 2-6 Answers Due 9pm 4/29 4/30 Crim Pro Exam OH 2-6 5/35/6 ConLaw Exam 5/7 OH 2-6 Review Ses 7pm OH 10-2, 3-7 7pm E-Mail Deadline Property Exam 5/105/13 Elective Exam

5. BRIEF IS IN! WHAT NOW?? Generally Keep Preparing & Going to Class – End of semester material often tested disproportionately. – Profs often summarize, tie together themes, and give exam hints in last classes.

6. BRIEF IS IN! WHAT NOW?? Generally Keep Preparing & Going to Class Old exam Qs under exam conditions – Practice the skills – Learn what your Profs look for

7. BRIEF IS IN! WHAT NOW?? Generally Keep Preparing & Going to Class Old exam Qs under exam conditions Think about exam technique – Exam skills workshops – Info from current Profs – Review last semester’s exams

8. BRIEF IS IN! WHAT NOW?? Generally Keep Preparing & Going to Class Old exam Qs under exam conditions Think about exam technique It’s a Marathon, Not a Sprint – Plan Your Studying – Conserve Energy

9. BRIEF IS IN! WHAT NOW?? Property Short Turnaround after ConLaw Exam: Plan Appropriately – Can’t do 90% of Exam Prep in 2 Days – Set Aside Time for Property between now & Crim Pro Exam

10. BRIEF IS IN! WHAT NOW?? Property Plan for Short Turnaround Old Qs Under Exam Conditions – 15 min read/60 min write – closed book except for syllabus

11. BRIEF IS IN! WHAT NOW?? Property Plan for Short Turnaround Old Qs Under Exam Conditions Submit Sample Q for Feedback – Deadline = Sat 4/27 @ 9pm

12. BRIEF IS IN! WHAT NOW?? Property Plan for Short Turnaround Old Qs Under Exam Conditions Submit Sample Q for Feedback Read end-of-semester IMs & Old Comments/Models

13. BRIEF IS IN! WHAT NOW?? Property Plan for Short Turnaround Old Qs Under Exam Conditions Submit Sample Q for Feedback Read IMs & Old Comments/Models Utilize Review Session & Pre-Exam Office Hours

14. YOU CAN DO THIS !

15. LOGISTICS: Operation of Class I’ll Redo Remaining Schedule This Afternoon – Adjust to Where We Finish Today – Long Class Next Monday – More Detailed Instructions for Rev. Prob. 6D Monday – Remove Last Part of Chapter 7 – Add Two More Problems to do in Class For Thursday/Monday: Cases on Evidence of Intentional Discrimination (identifying as many relevant pieces of evidence as possible)

16. LOGISTICS: Dean’s Fellow This Week: Review Problem 6C Next Week: Review Problem 6I Greg will e-mail more detailed instructions

17. LOGISTICS: My Priorities Fix Old Exam Files to Reflect Topics Dropped Get Chapter by Chapter Info Memos Posted Comment on Sample Exam Answers as Submitted – I can give better & quicker feedback to submissions that come in early – Once I start receiving substantial numbers, then I’ll likely wait until all are in QUESTIONS?

18. CHAPTER 6 PART B: HABITABILITY ISSUES 1.Overview 2.Quiet Enjoyment/Constructive Eviction 3.Implied Warranty of Habitability & Related Doctrines

19. Habitability = Duties of LDLD re Physical Condition of Premises Traditional View LDLD Guaranteed Legal Access to Premises No Duties re Physical Condition Unless Specifically Stated in Lease Again, Based in Agrarian View of Leases

20. Habitability = Duties of LDLD re Physical Condition 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

21. Habitability = Duties of LDLD re Physical Condition of Premises Changes Over Time A. Social Changes B. Legal Changes 1.Courts increasingly protect tenants a. Quiet Enjoyment/Constr. Eviction (early 20 th C  ) b. IWH & related doctrines (1960s  ) 2.Most States Adopt Detailed LT Statutes (at least for Residential)

22. Habitability = Duties of LDLD re Physical Condition of Premises Pay Attention to: A.Nature & Extent of LDLD Duties B.Remedies Available to TNT C.Waivability

23. CHAPTER 6 PART B: HABITABILITY ISSUES 1.Overview 2.Quiet Enjoyment/Constructive Eviction 3.Implied Warranty of Habitability & Related Doctrines

24. 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?

25. Overview of Quiet Enjoyment/ Constructive Eviction Three Relevant Doctrines 1. Partial Actual Eviction: 2. Constructive Eviction 3. Partial Constructive Eviction (Not All States) Exam Prep Note: Claims Overlap & All 3 Can Arise from Same Facts (See Review Problem 6C & Old Exam Q 4U)

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

27. Overview of Quiet Enjoyment/ Constructive Eviction Gurian (P666) 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

28. GLACIER: DQ95-96 & Eviction Causes of Action Glacier Mountain Lion

29. 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

30. Partial Actual Eviction Partial Actual Eviction: In Cases (GLACIER DQ95) 1.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

31. Partial Actual Eviction Partial Actual Eviction: In Cases (GLACIER DQ95) 2.Gurian doesn’t rely on b/c reads Barash to say very limited. DQ95: 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?

32. 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)

33. 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

34. Constructive Eviction: Constructive Eviction: In Cases (GLACIER DQ95) 1.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

35. Constructive Eviction: Constructive Eviction: In Cases (GLACIER DQ95) 2. 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

36. 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

37. 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

38. 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 Seems harsh to require (v. permit) T to look for new housing if only partly uninhabitable BUT: Big line-drawing problems not present if T leaves apt entirely

39. 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 Right to Control T’s Acts 2.MUST BE “SUBSTANTIAL” (Note 3 P670) – Relatively Meaningless Standard w/o Examples of Explanation – DQ96 designed to try to help you think about how to quantify

40. OLYMPIC: DQ96 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

41. CHAPTER 6 PART B: HABITABILITY ISSUES 1.Overview 2.Quiet Enjoyment/Constructive Eviction 3.Implied Warranty of Habitability & Related Doctrines

42. IMPLIED WARRANTY OF HABITABILITY(IWH): Overview Traditional: No L Duties w/o Lease Term From Early Twentieth Century: – Constructive Eviction Evolves – Building Codes in Most Cities Most States 1965-1985 – Some State Supreme Courts Adopt IWH – Lot of State Legislatures Pass Statutes Adopting Versions of IWH (incl FL)

43. JUSTIFICATIONS FOR IWH 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