PROPERTY E SLIDES

PROPERTY E SLIDES

04-11-13

LOGISTICS: ON COURSE PAGE

• Adjustments to Reflect Final Coverage Choices– Updated Assignment Sheet– Updated Versions of Sample Exam Qs & Best Answers

• Information Memos for Chapters 1 & 2• Exam Version of Syllabus (with other Exam Prep

Materials)• Detailed Instructions for Review Problem 6D for

Monday (Let Me Know if Qs)

LOGISTICS: GENERALLY

• If you need help with course selection, I’ll be at school much of next several days. On weekdays, just drop by; E-Mail to set a time on the Weekend.

• Monday will be a long class• Lot of Review Problems in final six classes; Intended

to help you with Exam Prep• Deadline for Sample Exam Answers is Sat. 4/27 @

9pm; instructions on course page

CHAPTER 6 PART B:HABITABILITY ISSUES

1. Overview2. Quiet Enjoyment/Constructive

Eviction

3.Implied Warranty of Habitability & Related Doctrines

OPERATION OF IWH

1. What Constitutes Breach? 2. Available Remedies?3. Notice & Time to Cure Required?4. Waivable?5. Prohibition of Retaliation?

OPERATION OF IWH:1. What Constitutes Breach?

Legal Test Varies by State (see Note 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

• Housing Codes if Applicable• List of Requirements if No Housing Code

OPERATION OF IWH2. Available Remedies?

• Generally Traditional Contract Remedies Available [in Note 5 P682-83 (unassigned)]• Rescission • Damages

• Many States Add More Tenant-Friendly Remedies (see Note 6 P684-85)• Withholding Rent/Rent Abatement

• T may have to put rent in escrow (see P680 fn67)

• Repair & Deduct

OPERATION OF IWH2. Available Remedies?

DQ98: Remedies in Florida Statutes

1.§83.56(1): Termination of Lease (with proper notice)2.§83.60: Withholding rent (with proper notice). If defending a suit for non-payment of rent, tenant must pay amount due into court registry to maintain claim. 3.No repair and deduct provision.

OPERATION OF IWH:3. Notice & Time to Cure?

• Usually to Invoke IWH, T Must (see Note 4 P682):– Provide Notice of Problem to L– Allow L Reasonable Time to Cure

• Significance:– Some States: No Breach Until After– Some States: Breach as Soon as Habitability

Problem Occurs, but Remedies Limited w/o

OPERATION OF IWH4. Waivable?

Varies by State & Circumstances (see Note 7 P685)

•Most States: IWH Not Waivable

•Some States: Freely Bargained v. Boilerplate

•FL §83.51: Can waive all requirements for single family home & duplex; some not waivable for apt in multi-unit building

OPERATION OF IWH4. Waivable: Policy Debate

• Some Relevant Points in Note 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

• DQ97: Possible Harms to Ts or Market if Non-Waivable?

OPERATION OF IWHConsequences 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 abandonment).

• BUT may encourage Ls to do preventative maintenance to avoid costly repairs later.

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

OPERATION OF IWH5.Prohibition of Retaliation? Generally L cannot punish T (eviction, rent increase) for complaining to L or Govt re

Habitability Issues•Need to protect more vulnerable party in long term relationship when you provide certain rights•More Common for Residential than Commercial•Operation varies depending on state cases/statutes– See Note 8 P685, Fl Stat §83.64– Not responsible for way rules/statutes work this year

SCOPE OF IWH: Compare to Other Related Doctrines

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

SCOPE OF IWH: Compare to Other Related Doctrines

Constructive Eviction •DQ97 asks about advantages of IWH•Key points made in Note 2 [P681-82]•Fewer advantages to IWH if state allows Partial Constructive Eviction– Problem doesn’t have to affect whole

apartment– T doesn’t have to move out completely

SCOPE OF IWH: Possible Extensions of IWH

Policy Qs for You to Think About•Extension to Small Commercial Tenants?– Done in a Few States– See DQ99 & Note 9 P685-86

•Extension of IWH Remedies to Problems with Amenities that are Not Needed for Minimum Habitability Standards (Pool, Dishwasher, etc.)? See Rev. Prob. 6B

CHAPTER 6 PART B:HABITABILITY ISSUES

1. Overview2. Quiet Enjoyment/Constructive

Eviction3. Implied Warranty of Habitability

& Related Doctrines

4.Questions?

CHAPTER 6 PART C:LIMITS ON TENANT SELECTION

1.Overview2. Right to Transfer3. Anti-Discrimination Law

OVERVIEW OFLIMITS ON TENANT SELECTION

L Ability to Select Ts = Significant Aspect of Property Rights– Can See as Part of Right to Exclude– Can See as Right to Use Land in Way

that L Sees as Most Beneficial (Economically & Otherwise)


L Ability to Select Ts = Significant Aspect of Property RightsToday: Limits on Right to Select to Further Other Important Interests•Anti-Discrimination Law: Inclusion & Access•T’s Right to Transfer– Alienability– T’s Economic & Fairness Interests


Two Relevant Time Frames•At Start of New Lease– Common Law: L Had Complete Discretion– Today Limited by Anti-Discrimination Statutes

(Federal & State)

•During Lease: If T Wishes to Transfer, L Consenting to the Transferee


Two Relevant Time Frames•At Start of New Lease•During Lease: If T Wishes to Transfer, L Consenting to the Transferee– Common Law: Governed by Lease Terms– Today Limited by • Anti-Discrimination Statutes (Federal & State)• Qs re “Reasonableness” of Withholding Consent

(State Law)


1. Overview

2.Right to Transfer3. Anti-Discrimination Law

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 LeaseTerms

•Sublease:

TENANT’S RIGHT TO TRANSFER: ASSIGNMENT v. SUBLEASE

Two Types of Transfers•Assignment: •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

TENANT’S RIGHT TO TRANSFER: BACKGROUND RULES

• T Right to Transfer Unless Lease Says Otherwise

• Limits in Lease Read Narrowly: “No Subleases” = Assignments Allowed

• Part of Pro-Alienation Policy Favoring Easy Transfer of Land– Like Some Estates & Future Interests Rules– Like Repose Idea in Adverse Possession

Tenant’s Right to Transfer: Reasonableness Issues

Common provision: “No transfer w/o consent of landlord”

1.“Reasonable” Withholding of Consent2.Should Courts Imply “Reasonableness”?

a. Commercial Tenanciesb. Residential Tenancies

3.Waiver Permissible?

Tenant’s Right to Transfer:Definition of 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?


• What is “reasonable” in these contexts?

• Funk: look to what a “reasonable man in the L’s position” would do. (Thanks)


LEGITIMATE CONCERNS• Assurances re Rent• Assurances re Use & Care of Premises• Proposed Use:

– Need for Alterations– Legality– Compatible w Other Tenants


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


HYPOS: DQ101(b/c) & Rev. Prob. 6F(B) • Bait & Switch (T wants to transfer to previously

rejected applicant; no financial reason to reject)• Religious or Political Objections• We’ll Do Arguments Next Tuesday w

Everglades; Yosemites should jump in if you have ideas about.

Tenant’s Right to Transfer

1. Lease: “No Transfer w/o L’s Consent”2. “Reasonable” Withholding of Consent

3. Should Courts Imply “Reasonableness”?


4. Waiver Permissible?

Tenant’s Right to Transfer:Imply Reasonableness (Comm’l)?

Arguments FOR Implying Reasonableness• 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

Tenant’s Right to Transfer:Imply Reasonableness (Comm’l)?

Arguments Against Implying Reasonableness• Rewriting Contract• Interferes w L’s Control of Own Property• May Lead to Lot of Litigation


1. Lease: “No Transfer w/o L’s Consent”2. “Reasonable” Withholding of Consent

3. Should Courts Imply “Reasonableness”?

a. Commercial Tenancies

b. Residential Tenancies4. Waiver Permissible?

Tenant’s Right to Transfer:Imply Reasonableness (Residential)?

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


1. Lease: “No Transfer w/o L’s Consent”2. “Reasonable” Withholding of Consent3. Should Courts Imply “Reasonableness”?


4. Waiver Permissible?

Tenant’s Right to TransferWaiver Permissible?

• Restatement says Waiver OK if “freely bargained for.”• Some States say NO.• We’ll Do Arguments w DENALI in Context of Review

Problem 6F(A) Starting Late on Monday; Again Yosemites should jump in if you have ideas


1. Overview2. Right to Transfer

3.Anti-Discrimination Law

LIMITS ON TENANT SELECTIONFROM ANTI-DISCRIMINATION LAW• Always Statutory• Relevant Federal Statutes– FHA §3604 (S11)– Civil Rights Act of 1866 § §1981-82 (S153)

• State Statutes Often Have Additional or Different Coverage– Can Look Up on Lawyering Q if Relevant– Otherwise, Not Expected to Address

RELEVANT FEDERAL ANTI-DISCRIMINATION LAW

Protected Characteristics

Transactions Covered

Exceptions

FHA §3604

Race, Color, National Origin, Religion, Sex, Familial Status, Handicap

Residential Property Sales & Leases

Smallholders, Senior Housing, Religious Organizations

CIVIL RIGHTS ACT OF 1866

Race (Defined Broadly to Include Ethnicity)

All (including Commercial Sales and Leases)

None

ZION: Sorenson & DQ102-04

TEMPLES & TOWERS OF THE VIRGIN

ZION: DQ102 Evidence in Sorenson

• What evidence supported the plaintiff in Sorenson?

• What evidence supported the defendant?

• Whose story do you find more convincing (and why)?

PROPERTY E SLIDES

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