property d slides

PROPERTY D SLIDES4-21-14

Monday April 21: Music Monday April 21: Music

Stevie Wonder, Stevie Wonder, The Definitive CollectionThe 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

PROPERTY D: 4/21

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Selected Issues in Landlord/Tenant LawSelected Issues in Landlord/Tenant Law

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?

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 Eviction Constructive Eviction

Part of Premises Partial Actual Eviction

Partial Constructive Eviction

(Some States)


Barash (P662)

• 2 Penn Plaza: Office Building• No A/C Nights & Weekends• BUT Lease Says This


Gurian (P666) (bad omen)(bad omen)

• 301 E. 69th St. (Apt. 18E)• Problems on Terrace– Terrace = “Prime Factor” in Entering Lease– A/C Green Fluid/Stream of Water– Incinerator Ash Particles

Partial Actual EvictionPartial Actual Eviction:Nature of Claim

1. L physically uses or authorizes use of part of leased premises

a. some states: can be any partb. some states: needs to be substantial

2. Remedya. Traditional: if not de minimis, complete abatement of rentb. Some States/Trend: Apportion: pro rata decrease in rent

Partial Actual EvictionPartial 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

Partial Actual EvictionPartial 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

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)

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

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

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

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

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

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

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

Quiet Enjoyment Claims: Quiet Enjoyment Claims: Actionable InterferenceActionable 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

REDWOOD: DQ7.04

REDWOODS & FERNS

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

Selected Issues in Landlord/Tenant LawSelected Issues in Landlord/Tenant Law

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

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)


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


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 away BUT w/o lease, LDLD can evict right away • & TNT can’t rely on & TNT can’t rely on helpfulhelpful lease provisions lease provisions

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)

JUSTIFICATIONS FOR IWHcf. cf. Products Liability 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

OPERATION OF IWH: KEY Qs

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

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

OPERATION OF IWH2. Available Remedies?

• Generally Traditional Contract Remedies Available • Rescission No Housing• Damages [Detailed in N.5 P682-83 (unassigned)]

Very Slow


• 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


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.

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

OPERATION OF IWH4. 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

OPERATION OF IWH4. 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

OPERATION OF IWH4. 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.

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?

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 …

Seven Dwarfs Seven Questions/Problems

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HappyHappy

SneezySneezy

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SleepySleepy

GrumpyGrumpyDopeyDopey

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 7Sunday Office Hours 10-2; 3-7 & E-Mail Qs Until 7

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 …

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.)?

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