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VISITORS FROM SECTION J: SEE ME FOR AVAILABLE SEATS. MUSIC: The Dinah Washington Story (Disc Two: Recordings 1954-61). HABITABILITY & Related Issues continued. Featuring FALCONS. HABITABILITY & Related Issues. Review of History Constructive Eviction - PowerPoint PPT Presentation
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VISITORS FROM SECTION J:SEE ME FOR AVAILABLE SEATS
MUSIC: The Dinah Washington Story
(Disc Two: Recordings 1954-61)
HABITABILITY & Related Issues
continuedFeaturing FALCONS
HABITABILITY & Related Issues1. Review of History
2. Constructive Eviction3.Implied Warranty of
Habitability (IWH)4. Retaliatory Eviction
IWH: COMPARED TO OTHER DOCTRINES
1. Illegal Lease (see Brown @ P678-79)• Problems severe enough to make
occupancy illegal• Problems must exist at start of lease• Remedy: Lease is void
2. Constructive Eviction [DQ89]• Problems severe enough to equal
eviction• Must move out to claim• Remedy: Ends lease
IWH: REMEDIES (Generally)1. Traditional Contract Remedies:
• Rescission • Damages
2. Modern Innovations• Withholding Rent• Repair & Deduct
IWH: REMEDIES (DQ90: Florida)
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.
IWH: WAIVABLE?1. States Split
– Casebook says waivable in most states– Other sources say non-waivable in
most states2. May depend on circumstances
– Florida: Can waive if single-family house or duplex
– Others: May depend if freely bargained for
IWH: POSSIBLE ECONOMIC EFFECTS
DQ89: Most states have adopted the IWH and [many have] made it non-
waivable. What downsides to tenants or to the housing market
might there be to doing this?
IWH: POSSIBLE ECONOMIC EFFECTS
• Limits 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.
IWH: POSSIBLE ECONOMIC EFFECTS
• 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
IWH: POSSIBLE EXTENSIONS OF DOCTRINE
• DQ92: Small Commercial Rentals (e.g., Dentist’s Offices, Antique Stores, Ice Cream Parlors)?
• Review Problem 6A: Warranty of Fitness for High End Rentals?
HABITABILITY & Related Issues1. Review of History
2. Constructive Eviction3. Warranty of Habitability4.Retaliatory Eviction
Retaliatory Eviction• Statutes or cases often prohibit
residential Ls from evicting or otherwise punishing Ts who report housing code violations or engage in other protected activities.
Retaliatory Eviction• Statutes or cases often prohibit residential
Ls from evicting or otherwise punishing Ts who report housing code violations or engage in other protected activities.
DQ91: What are the reasons for having a cause of action for
retaliatory eviction?
Retaliatory Eviction• Statutes or cases often prohibit residential
Ls from evicting or otherwise punishing Ts who report housing code violations or engage in other protected activities.
DQ91: If the reason for the L’s action is disputed, who should bear the burden of proof as to whether the
reason was retaliatory?
Retaliatory Eviction• Statutes or cases often prohibit residential
Ls from evicting or otherwise punishing Ts who report housing code violations or engage in other protected activities.
• Often law creates a presumption that the Ls action is retaliatory if w/in a specified length of time of the protected activity (would mean burden on L).
Retaliatory EvictionQs that arise (often detailed in statute)
• What L actions are restricted? • What T activity is protected?• What intent by L is necessary?• How can the taint of retaliation be
dissipated?
Retaliatory Eviction: Florida• 83.64 (1). It is unlawful for a landlord to
discriminatorily increase a tenant's rent or decrease services to a tenant, or to bring or threaten to bring an action for possession or other civil action, primarily because the landlord is retaliating against the tenant.
Retaliatory Eviction: Florida• 83.64 (4) "Discrimination" under this
section means that a tenant is being treated differently as to the rent charged, the services rendered, or the action being taken by the landlord, which shall be a prerequisite to a finding of retaliatory conduct.
Retaliatory Eviction: Florida• 83.64 (4) "Discrimination" under this section
means that a tenant is being treated differently as to the rent charged, the services rendered, or the action being taken by the landlord, which shall be a prerequisite to a finding of retaliatory conduct.
Differently from what ?
Retaliatory Eviction: Florida• 83.64 (1). It is unlawful for a landlord to
discriminatorily increase a tenant's rent or decrease services to a tenant, or to bring or threaten to bring an action for possession or other civil action, primarily because the landlord is retaliating against the tenant.
Retaliatory Eviction: Florida83.64 (1)… Examples of conduct for which the
landlord may not retaliate include, but are not limited to, situations where:
(a) The (T) has complained to a gov’tal agency … with responsibility for enforcement of a bldg., housing, or health code of a suspected violation applicable to the premises;
(b) The (T) has organized, encouraged, or participated in a tenants' organization; or
(c) The (T) has complained to the (L) pursuant to §83.56(1).
Retaliatory Eviction: Florida83.64 (1)… In order for the tenant to raise the
defense of retaliatory conduct, the tenant must have acted in good faith. …
(3) … [T]his section does not apply if the landlord proves that the eviction is for good cause. Examples of good cause include, but are not limited to, good faith actions for nonpayment of rent, violation of the rental agreement or of reasonable rules, or violation of the terms of this chapter.
UNIT IV: REGULATION OF
LAND USE: The Reese’s Peanut Butter Cup Problem
VINTAGE 80'S REESES PEANUT BUTTER CUPS COMMERCIAL W WALKERS.flv
REGULATION OF LAND USE1. By Tort Law: Nuisance
2. By Limited Grant: Defeasible Fees
3. By Contract: Servitudes (Chapter 8)
4. By Regulation: a. Zoning (Chapter 9)b. Environmental Law
Chapter 8: Servitudes1. Easements
a. Express (Positive & Negative)b. Implied (Positive Only)
2. Intro to Notice & Recording System
3. Promissory Servitudes (Brief Intro)
4. Homeowner’s Associations
Chapter 8: Servitudes1.Easements
a.Express (Positive & Negative)b. Implied (Positive Only)
2. Promissory Servitudes (Brief Intro)
3. Homeowner’s Associations
Express EasementsChevy Chase, Marcus Cable &
DQ 108-10Featuring Hawks
Express EasementsVocabulary
Appurtenant v. In GrossDominant Tenement v. Servient
TenementPositive v. Negative Easement
Express EasementsIssues: Interpreting Language1. Fee Simple v. Easement2. Scope of the Easement
Express EasementsFee Simple v. Easement
Chevy Chase (Md.) v.
City of Manhattan (Ca.)[in Note 1 P832]
Express EasementsFee Simple v. Easement
1. Evidence of Parties’ Intent– Language– Circumstances of Transaction
2. Presumption? (DQ108)
Express EasementsScope of Easement
• Q is whether use contemplated by dominant tenement-holder allowed
• Generally interpret scope issues like contracts – Objective indications/manifestations of parties’
intent– Not hidden understanding
• Often arises with changed circumstances: which party should bear different burden?
Express EasementsScope of Easement:
Sample Blackletter Tests• “Use must be reasonable considering the
terms of the grant”• “Evolutionary not revolutionary” changes
allowed.• “Burden must not be significantly greater
than that contemplated by parties”
Express EasementsScope of Easement:
• Chevy Chase: Common Transition from RR Rights of Way to Recreation Trails
– Federal statute encourages and gives RRs authority to transfer rights-of-way
– BUT doesn’t purport to resolve state law issues re scope
• Marcus Cable: Common problem of improved technology
LOGISTICS: MONDAYREVIEW PROBLEMS 8A & 8C
• ARGUMENTS by HAWKS & OWLS– From blackletter tests– From cases
• CRITIQUES by FALCONS (+ all others who haven’t submitted a critique)– Property I Critique of 8A– Property J Critique of 8Cplus ADVICE RE COURSE SELECTION
Express EasementsScope of Easement:
DQ109: Chevy Chase & Blackletter Tests(Case Uses Version of Each)
• “Use must be reasonable considering the terms of the grant”
• “Evolutionary not revolutionary” changes allowed. (same “quality” of use)
• “Burden must not be significantly greater than that contemplated by parties”
Express EasementsScope of Easement:
DQ109: Chevy Chase & Blackletter Tests• “Use must be reasonable considering the
terms of the grant” – Begins with language arguments:– To RR, “its successors & assigns, a free and
perpetual right of way.”
Express EasementsScope of Easement:
DQ109: Chevy Chase & Blackletter Tests• “Evolutionary not revolutionary” changes
allowed. (same “quality” of use; doesn’t need to be specifically anticipated)
– Chevy Chase: Forms of Transportation– Preseault (note 2 P833): Commercial Use v.
Individual Recreation
Express EasementsScope of Easement:
DQ109: Chevy Chase & Blackletter Tests• Burden must not be significantly greater
than that contemplated by parties” (Increase in Burden “so substantial” as to create a “different servitude”)
– “Self-Evident” that change “imposes no new burdens”
– Plus adds benefit to servient tenements (access to trail)
Express EasementsScope of Easement:
DQ110: Marcus Cable & Blackletter Tests• “Use must be reasonable considering the
terms of the grant” (Case Essentially Uses)– Start with language– Give undefined terms ordinary meaning– Determine purposes of grant– Use can change to accommodate
technological development, but must fall within original purposes
Express EasementsScope of Easement:
DQ110: Marcus Cable & Blackletter TestsTry Applying:
• “Evolutionary not revolutionary” changes allowed.
• “Burden must not be significantly greater than that contemplated by parties”
Express EasementsScope of Easement: What’s at Stake• Parties in long term relationship governed
by terms of original agreement.• Changing circumstances make change
desirable (parties always can bargain)• Strict adherence to original terms yields
certainty for servient owners• Flexibly allowing change if similar use & no
great increase in burden better meets dominant owners’ needs & expectations (especially re maximizing property value)
FOUR WEEKS
FROM APRIL 1 TO FIRST
EXAM
IT’S APRIL!
WHAT NOW??
IT’S APRIL! 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.
IT’S APRIL! WHAT NOW??Generally
• Keep Preparing & Going to Class• Old exam Qs under exam conditions
– Practice the skills– Learn what your Profs look for
IT’S APRIL! 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
IT’S APRIL! 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
IT’S APRIL! WHAT NOW??Property
• Last Exam: Prepare Appropriately – Time management re Con Law &
Elective–Don’t save 90% of work for last 3
days
IT’S APRIL! WHAT NOW??Property
• Last Exam: Prepare Appropriately• Get feedback on an old Q
IT’S APRIL! WHAT NOW??Property
• Last Exam: Prepare Appropriately• Get feedback on an old Q • Read end-of-semester IMs
IT’S APRIL! WHAT NOW??Property
• Last Exam: Prepare Appropriately• Get feedback on an old Q • Read end-of-semester IMs• Utilize review session & pre-exam
office hours
YOU CAN DO THIS !