PROPERTY%20E%20SLIDES

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PROPERTY E SLIDES

• 04-11-13

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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)

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LOGISTICS GENERALLY

• If you need help with course selection, Ill 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 _at_
  9pm instructions on course page

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CHAPTER 6 PART BHABITABILITY ISSUES

1. Overview
2. Quiet Enjoyment/Constructive Eviction
3. Implied Warranty of Habitability Related
   Doctrines

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OPERATION OF IWH

• What Constitutes Breach?
• Available Remedies?
• Notice Time to Cure Required?
• Waivable?
• Prohibition of Retaliation?

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OPERATION OF IWH1. What Constitutes Breach?

• Legal Test Varies by State (see Note 3 P682)
• Some States Tie to Breaches of Housing Code
• E.g., Javins
• Cant 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

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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

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OPERATION OF IWH2. Available Remedies?

• DQ98 Remedies in Florida Statutes
• 83.56(1) Termination of Lease (with proper
  notice)
• 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.
• No repair and deduct provision.

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OPERATION OF IWH3. 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

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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

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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?

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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.

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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

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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

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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

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SCOPE OF IWH Compare to Other Related Doctrines

• Illegal Lease Theory
• See Brown (discussed in Javins _at_ P678-79)
• Housing Code violations severe enough to make
  occupancy of unit illegal
• Problems must exist at start of lease
• Remedy Lease is Void

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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 doesnt have to affect whole apartment
• T doesnt have to move out completely

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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

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CHAPTER 6 PART BHABITABILITY ISSUES

1. Overview
2. Quiet Enjoyment/Constructive Eviction
3. Implied Warranty of Habitability Related
   Doctrines
4. Questions?

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CHAPTER 6 PART CLIMITS ON TENANT SELECTION

1. Overview
2. Right to Transfer
3. Anti-Discrimination Law

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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)

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OVERVIEW OFLIMITS ON TENANT SELECTION

• L Ability to Select Ts Significant Aspect of
  Property Rights
• Today Limits on Right to Select to Further Other
  Important Interests
• Anti-Discrimination Law Inclusion Access
• Ts Right to Transfer
• Alienability
• Ts Economic Fairness Interests

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OVERVIEW OFLIMITS ON TENANT SELECTION

• 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

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OVERVIEW OFLIMITS ON TENANT SELECTION

• 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)

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CHAPTER 6 PART CLIMITS ON TENANT SELECTION

1. Overview
2. Right to Transfer
3. Anti-Discrimination Law

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TENANTS 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

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TENANTS 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

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TENANTS 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

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Tenants Right to Transfer Reasonableness Issues

• Common provision No transfer w/o consent of
  landlord
• Reasonable Withholding of Consent
• Should Courts Imply Reasonableness?
• Commercial Tenancies
• Residential Tenancies
• Waiver Permissible?

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Tenants Right to TransferDefinition 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 Ls consent to transfer
• What is reasonable in these contexts?

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Tenants Right to TransferDefinition of of
Reasonable

• What is reasonable in these contexts?
• Funk look to what a reasonable man in the Ls
  position would do. (Thanks)

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Tenants Right to TransferDefinition of of
Reasonable

• LEGITIMATE CONCERNS
• Assurances re Rent
• Assurances re Use Care of Premises
• Proposed Use
• Need for Alterations
• Legality
• Compatible w Other Tenants

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Tenants Right to TransferDefinition of of
Reasonable

• 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 Weve Read Are Wrong

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Tenants Right to TransferDefinition of of
Reasonable

• 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
• Well Do Arguments Next Tuesday w Everglades
  Yosemites should jump in if you have ideas about.

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Tenants Right to Transfer

• Lease No Transfer w/o Ls Consent
• Reasonable Withholding of Consent
• Should Courts Imply Reasonableness?
• Commercial Tenancies
• Residential Tenancies
• Waiver Permissible?

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Tenants Right to TransferImply Reasonableness
(Comml)?

• Arguments FOR Implying Reasonableness
• Importance of Alienation
• General Reqmt. of Good Faith Fair Dealing
• Protects Ls Legitimate Concerns (esp. re )
• Prevents L Using Transfer to Extort Better Lease
  Terms

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Tenants Right to TransferImply Reasonableness
(Comml)?

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

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Tenants Right to Transfer

• Lease No Transfer w/o Ls Consent
• Reasonable Withholding of Consent
• Should Courts Imply Reasonableness?
• Commercial Tenancies
• Residential Tenancies
• Waiver Permissible?

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Tenants Right to TransferImply 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 comml setting
• More States Imply in Residential Setting

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Tenants Right to Transfer

• Lease No Transfer w/o Ls Consent
• Reasonable Withholding of Consent
• Should Courts Imply Reasonableness?
• Commercial Tenancies
• Residential Tenancies
• Waiver Permissible?

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Tenants Right to TransferWaiver Permissible?

• Restatement says Waiver OK if freely bargained
  for.
• Some States say NO.
• Well Do Arguments w DENALI in Context of Review
  Problem 6F(A) Starting Late on Monday Again
  Yosemites should jump in if you have ideas

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CHAPTER 6 PART CLIMITS ON TENANT SELECTION

1. Overview
2. Right to Transfer
3. Anti-Discrimination Law

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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

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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
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ZION Sorenson DQ102-04
TEMPLES TOWERS OF THE VIRGIN
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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)?