ITT: help OS pass property! Forum

[OperaSoprano]

If a landlord permits his best friend to move into a vacant apartment, and that person's children break another tenant's locks and windows and extensively damage her personal property, can she hold the landlord liable if he does nothing to fix the situation? What if he talks to his friend, but his children continue to damage her property? Would it make a difference if the conduct makes her apartment uninhabitable, but she stays in the apartment and withholds rent? I remember a case on point that involved partial constructive eviction. (Minjak v. Randolph, I think). I'm not sure if it's applicable in this case, because the landlord was responsible for some of the un-neighborly behavior in Minjak.

[samiseaborn]

I don't think there is any doctrine that allows you to stop paying rent and stay in the apartment, paying rent is an independent covenant. But, you can definitely argue constructive eviction, because that count whenever the landlord actively does something that deprives the tenant of the enjoyment of the apartment, or refrains from doing something which leads to deprivation. So not keeping the kids out, or not throwing the parents out of the apartment is arguably refraining from doing something. Of course, the landlord can just argue that he tried by talking to the parents and failed. So, I think it's better to argue the lease was ended by the constructive eviction then to try and stay in the apartment for free.

[awesomepossum]

I just realized I have no recollection of property...or contracts...or pretty much any other 1L class for that matter.

[Unemployed]

I just realized I have no recollection of property...or contracts...or pretty much any other 1L class for that matter.

They'll come back for the bar exam.

Sorry OS - I can't help with property because I haven't learned it yet. I mean... the exam's like next week.

[270910]

If a landlord permits his best friend to move into a vacant apartment, and that person's children break another tenant's locks and windows and extensively damage her personal property, can she hold the landlord liable if he does nothing to fix the situation? What if he talks to his friend, but his children continue to damage her property? Would it make a difference if the conduct makes her apartment uninhabitable, but she stays in the apartment and withholds rent? I remember a case on point that involved partial constructive eviction. (Minjak v. Randolph, I think). I'm not sure if it's applicable in this case, because the landlord was responsible for some of the un-neighborly behavior in Minjak.

With these common law classes, sometimes the best way to deal with fact patterns is to think "what remedies might be available, and if I were an advocate, how would I make my case and undermine my adversaries?"

First, repairs in isolation: The tenant at common law had a duty to conduct repairs, but under modern law it's really only for a basic level of maintenance. The landlord is responsible for major repairs, so thinks like broken locks and windows are absolutely the responsibility of the landlord to repair.

After that, there are two potential doctrines that the tenant can turn to. The implied covenant of quiet enjoyment basically states that for any usage explicitly covenanted for, the landlord has a duty to ensure that usage without constructively or actually evicting the tenant. Here I'd make the argument that withholding repairs to looks and windows are not only a strongly implicit if not explicit part of the landlord's duties, but that having no security or insulation in the apartment could be construed as a constructive eviction - living in the apartment can't happen without physical discomfort and risk of further loss. In analyzing constructive eviction, you have to think about how much interference there was with the usage intended for the property. Why do people rent apartments? To keep out the elements and obtain privacy/security - both of which have been violated in this case.

The implied warranty of habitability is more favorable to the tenant, and doesn't require an explicit covenant or a constructive eviction. Are the premises no longer "safe, clean, or fit for human habitation?" I'd argue yes - locks and windows are pretty key. And the duty was doubly breached as the landlord's own actions might have brought about the problems. As a result, the tenant can - as a remedy - withhold rent and then invoke the implied warranty of habitability at trial is sued for failure to pay rent.

[MrKappus]

Breach of the implied warranty of habitability would occur if:
(1) the kids broke windows (during the winter), exposed wires by punching holes in the wall, or did anything else that made the apartment unfit for human habitation;
(2) T notifies L; and
(3) L does not fix the problem w/in a 'reasonable' amount of time.

Remedies vary by jurisdiction, but the IWoH absolutely allows T to withhold rent until the apartment is fixed. In addition, T can:
- Fix the problems herself and deduct costs from rent
- Sue for damages (special if injury was foreseeable, general if it was not)
- Pursue rent abatement, in which she pays the 'fair mkt value' of tenancy in the damaged premises

What I'm not sure about is how much the source of the damage to the premises matters, b/c in most IWoH situations, the damage occurs through wear/tear. The L's friend's kids situation seems to introduce torts concepts of guardianship and liability (i.e., who's responsible for the kids). That said, I think L is responsible to for any repairs for which T is not at fault.

EDIT: I did not read carefully enough. You asked about "personal property." My bad.

EDIT #2: I think T's only remedy for the breach of implied covenant of quiet enjoyment (1. wrongful conduct, 2. by L, that 3. substantially interferes w/ T's enjoyment of property) is to claim constructive eviction and move out w/in a reasonable time period (See, JMB v. Paolucci, IL).

[vanwinkle]

This thread has served to convince me I will fail Property next week.

[OperaSoprano]

You guys are geniuses! <3 <3 <3 My study partner and I are meeting right now, and we are seriously grateful. Is anyone up for a policy question? It's been giving us fits all day.

[270910]

You guys are geniuses! <3 <3 <3 My study partner and I are meeting right now, and we are seriously grateful. Is anyone up for a policy question? It's been giving us fits all day.

It's that or continue trying to drown my sorrow with meme generation. Shoot.

[A'nold]

This thread has served to convince me I will fail Property next week.

+1, seeing as how I did not read one thing, pay attention in class, missed multiple days, and have not outlined landlord/tenant........crash course on landlord/tenant law anyone?

[OperaSoprano]

You guys are geniuses! <3 <3 <3 My study partner and I are meeting right now, and we are seriously grateful. Is anyone up for a policy question? It's been giving us fits all day.

It's that or continue trying to drown my sorrow with meme generation. Shoot.

From both of us: thank you so much! Here is the question:



Obviously you may not have the same casebook (we had Singer), but you probably studied similar things. How would you approach this? You don't have to spend 45 minutes, but any general guidelines? I'm not sure I like my own answer, which basically concluded that this is a huge net gain for tenants, but failed to get into every doctrine she wanted covered inside of 45 minutes.

[OperaSoprano]

To everyone that answered: I'll be analyzing answers and asking a ton of questions tonight. You guys have my deepest gratitude.

[OperaSoprano]

This thread has served to convince me I will fail Property next week.

+1, seeing as how I did not read one thing, pay attention in class, missed multiple days, and have not outlined landlord/tenant........crash course on landlord/tenant law anyone?

I'll be cross with both of you guys when you come back here with A+s.

[270910]

You guys are geniuses! <3 <3 <3 My study partner and I are meeting right now, and we are seriously grateful. Is anyone up for a policy question? It's been giving us fits all day.

It's that or continue trying to drown my sorrow with meme generation. Shoot.

From both of us: thank you so much! Here is the question:



Obviously you may not have the same casebook (we had Singer), but you probably studied similar things. How would you approach this? You don't have to spend 45 minutes, but any general guidelines? I'm not sure I like my own answer, which basically concluded that this is a huge net gain for tenants, but failed to get into every doctrine she wanted covered inside of 45 minutes.

The biggest thing I can think of to talk about is the duty to mitigate. At common law, if the transaction was a conveyance then there would be no duty to mitigate in the instance of a breach. A lot of courts were reluctant to imply a duty to mitigate for that reason. The idea is that even while not paying rent or even abandoning the premises, at common law the tenant had for whatever period an absolute legal right to that land and the landlord couldn't fuck with him. The duty to mitigate, borrowed from contract (and to a lesser extent tort) law established a more efficient approach, but it undercut a lot of the philosophical underpinnings of the transaction. Historically, it represents the shift from feudal tenants to inner city tenants. The law developed in a world quite unlike our current one, and so it took a bit to find ways to more efficiently deal with the modern world.

Duty to repair is another difference. At common law there was no contractual obligation, the tenant had the premises to repair or not repair as he saw fit. The duty to repair more accurately reflects the relationship between the two. On the other hand, it means people can't lease property without retaining a more substantial relationship, and also cuts back on the 'you give away your bundle of sticks and you don't get to play with them' idea from the common law.

Duty to repair dove tails nicely into an analysis of the development of things like the implied warranty of habitability/quiet enjoyment. Warranties are also creatures of contract. The law currently looks at landlords and tenants and sees two people who have exchanged promises with one another instead of just a rigid and formulaic temporary switching of ownership of the property.

If you really want to get goofy, you could talk about privity of contract and estate. Under contract theory, courts have even done things like impose reciprocal rights in contracts that look like 'at will' contracts and imposed restrictions on when a commercial landlord can or cannot allow a sublease/assignment as well as narrowly construing language limiting one or the other (as in, if you say 'no assignments' then it won't mean 'no subleases').

That's more or less all I can think of from my class... on a question like this, I'd imagine the doctrine you covered vs. glossed over would make a big difference in the scope of your ability to coherently answer it. If you really wanted to go off the deep end, you could talk about England and theories of privity of estate/contract too. We really didn't focus much on fundamental things like acquisition or philosophy though... I do think the most important thing is the law went from saying "the tenant has total control" to saying "the landlord and tenant are in a legal relationship" which often helped the stereotypical inner city tenant, but may have actually cutback on the scope of rights enjoyed as a tenant at common law (when you had a more absolute claim during your tenancy).

[MrKappus]

You guys are geniuses! <3 <3 <3 My study partner and I are meeting right now, and we are seriously grateful. Is anyone up for a policy question? It's been giving us fits all day.

It's that or continue trying to drown my sorrow with meme generation. Shoot.

From both of us: thank you so much! Here is the question:



Obviously you may not have the same casebook (we had Singer), but you probably studied similar things. How would you approach this? You don't have to spend 45 minutes, but any general guidelines? I'm not sure I like my own answer, which basically concluded that this is a huge net gain for tenants, but failed to get into every doctrine she wanted covered inside of 45 minutes.

The accepted wisdom around the L-T Revolution would definitely tend to support your conclusion about it being a gain for tenants.

I'd use a pros/cons for L's, pros/cons for T's structure. Impt to point out L's weren't totally screwed by movement to lease K's...

L Pros/T Cons: Greater control over how T's use property; ability to enhance marketability by drafting lease K's that appeal to certain mkt segments; conception that leased properties still "belong" to L (conveyance truly used to be a set it and forget it type deal, w/ very little L control); K-ual obligation upon T to pay expectation damages for breach of lease (w/ minimal, "commercially reasonable effort to relet" burden on L); little impact on commercial leases; pervasiveness of standard-form K's/K's of adhesion; et al.

From your answer, sounds like you've got the L cons/Tpros taken care of already...

[OperaSoprano]

You guys are geniuses! <3 <3 <3 My study partner and I are meeting right now, and we are seriously grateful. Is anyone up for a policy question? It's been giving us fits all day.

It's that or continue trying to drown my sorrow with meme generation. Shoot.

From both of us: thank you so much! Here is the question:



Obviously you may not have the same casebook (we had Singer), but you probably studied similar things. How would you approach this? You don't have to spend 45 minutes, but any general guidelines? I'm not sure I like my own answer, which basically concluded that this is a huge net gain for tenants, but failed to get into every doctrine she wanted covered inside of 45 minutes.

The biggest thing I can think of to talk about is the duty to mitigate. At common law, if the transaction was a conveyance then there would be no duty to mitigate in the instance of a breach. A lot of courts were reluctant to imply a duty to mitigate for that reason. The idea is that even while not paying rent or even abandoning the premises, at common law the tenant had for whatever period an absolute legal right to that land and the landlord couldn't fuck with him. The duty to mitigate, borrowed from contract (and to a lesser extent tort) law established a more efficient approach, but it undercut a lot of the philosophical underpinnings of the transaction. Historically, it represents the shift from feudal tenants to inner city tenants. The law developed in a world quite unlike our current one, and so it took a bit to find ways to more efficiently deal with the modern world.

Duty to repair is another difference. At common law there was no contractual obligation, the tenant had the premises to repair or not repair as he saw fit. The duty to repair more accurately reflects the relationship between the two. On the other hand, it means people can't lease property without retaining a more substantial relationship, and also cuts back on the 'you give away your bundle of sticks and you don't get to play with them' idea from the common law.

Duty to repair dove tails nicely into an analysis of the development of things like the implied warranty of habitability/quiet enjoyment. Warranties are also creatures of contract. The law currently looks at landlords and tenants and sees two people who have exchanged promises with one another instead of just a rigid and formulaic temporary switching of ownership of the property.

If you really want to get goofy, you could talk about privity of contract and estate. Under contract theory, courts have even done things like impose reciprocal rights in contracts that look like 'at will' contracts and imposed restrictions on when a commercial landlord can or cannot allow a sublease/assignment as well as narrowly construing language limiting one or the other (as in, if you say 'no assignments' then it won't mean 'no subleases').

That's more or less all I can think of from my class... on a question like this, I'd imagine the doctrine you covered vs. glossed over would make a big difference in the scope of your ability to coherently answer it. If you really wanted to go off the deep end, you could talk about England and theories of privity of estate/contract too. We really didn't focus much on fundamental things like acquisition or philosophy though... I do think the most important thing is the law went from saying "the tenant has total control" to saying "the landlord and tenant are in a legal relationship" which often helped the stereotypical inner city tenant, but may have actually cutback on the scope of rights enjoyed as a tenant at common law (when you had a more absolute claim during your tenancy).

Wow, thank you for doing this. By more absolute right under conveyance theory, do you simply mean that the tenant could sublet, abandon, etc at his or her leisure? I came to the conclusion that tenants have more rights under contract analysis, because of the warranty of habitability, implied covenant of quiet enjoyment, and requirements of good faith and fair dealing. I also focused on unconscionability and the right to shelter, as evidenced by the rights of holdover tenants, who cannot be evicted by self help. Did I come to a reasonable conclusion?

I also talked briefly about fairness and justice and utilitarian aspects of the contract warranties and protections for tenants. I think I got carried away and unleashed general vitriol at landlords as a class, and I have to remind myself that is strictly verboten on the final.

[OperaSoprano]

You guys are geniuses! <3 <3 <3 My study partner and I are meeting right now, and we are seriously grateful. Is anyone up for a policy question? It's been giving us fits all day.

It's that or continue trying to drown my sorrow with meme generation. Shoot.

From both of us: thank you so much! Here is the question:



Obviously you may not have the same casebook (we had Singer), but you probably studied similar things. How would you approach this? You don't have to spend 45 minutes, but any general guidelines? I'm not sure I like my own answer, which basically concluded that this is a huge net gain for tenants, but failed to get into every doctrine she wanted covered inside of 45 minutes.

The accepted wisdom around the L-T Revolution would definitely tend to support your conclusion about it being a gain for tenants.

I'd use a pros/cons for L's, pros/cons for T's structure. Impt to point out L's weren't totally screwed by movement to lease K's...

L Pros/T Cons: Greater control over how T's use property; ability to enhance marketability by drafting lease K's that appeal to certain mkt segments; conception that leased properties still "belong" to L (conveyance truly used to be a set it and forget it type deal, w/ very little L control); K-ual obligation upon T to pay expectation damages for breach of lease (w/ minimal, "commercially reasonable effort to relet" burden on L); little impact on commercial leases; pervasiveness of standard-form K's/K's of adhesion; et al.

From your answer, sounds like you've got the L cons/Tpros taken care of already...

Thank you for the suggestions of pros for landlords. I was having trouble with it, and had to force myself to analyze the question dispassionately, at least until I got into the fairness/justice discussion.

[Netopalis]

One thing which my property class focused on was how Landlord/Tenant relations are now much more like a contract for services rather than for property, meaning that rather than your gaining an interest in the property, you instead are contracting for the landlord to provide certain services to you, such as repair and (in some cases) utilities. Other changes include the improvement in risk of loss (originally, tenants had to continue paying the lease even if the property was destroyed) and the idea that leases are more of a renewable shorter-term contract than a rigid multi-year agreement. The benefit swings heavily in favor of tenants - in fact, landlords gain almost nothing from this shift. (At least, that's what my professor said).

[270910]

Wow, thank you for doing this. By more absolute right under conveyance theory, do you simply mean that the tenant could sublet, abandon, etc at his or her leisure? I came to the conclusion that tenants have more rights under contract analysis, because of the warranty of habitability, implied covenant of quiet enjoyment, and requirements of good faith and fair dealing. I also focused on unconscionability and the right to shelter, as evidenced by the rights of holdover tenants, who cannot be evicted by self help. Did I come to a reasonable conclusion?

I also talked briefly about fairness and justice and utilitarian aspects of the contract warranties and protections for tenants. I think I got carried away and unleashed general vitriol at landlords as a class, and I have to remind myself that is strictly verboten on the final.

Netopalis covered some of what I meant - basically, the tenant probably has more 'rights' with respect to being a person in a relationship, but has less of an absolute property ownership right because the relationship is one of contracting to supply a quasi-service (a place to live, and the implied warranties and duties that go with it). Objectively the rights the tenant has expand greatly, but they give up that sort of absolute 'this is my parcel for a year, even if it burns down you're not coming on it and I can do with it as I will' as though it were a conveyance. I mean, it sounds weird to say that tenants used to have the right to abandon property, continue to pay rent, and return whenever they wanted (no duty to mitigate) or the right to continue paying rent and enjoy the charred earth where the dwelling once stood (shifted burden of risk of loss) but it was certainly more philosophically pure from a property ownership point of view.

(The other points you added all also make great good sense)

[solidsnake]

OS -- if you had Singer, just go on and on about Radin's personhood theory, protecting the reliance interest, civic republicanism, and covenants as a way to preserve and protect the community. Compare and contrast contract theory versus property theory as means to advance those ends. Then spend the other half of your essay espousing prophylactic measures needed to combat the evils of commodification. Compare and contrast contract theory versus property theory as means to advance that end. Cite Shack. Then argue that zoning is only good, indeed sometimes necessary, if it effects the right result incidental to whomever feels marginal pain in the process. Enjoy your A.

[Bankhead]

The hypo you are describing sounds like it plays off of Blackett v. Olanoff. In Blackett, the court held that because the disturbing condition was the natural and probable consequence of the landlord's permitting the lounge to operate where it did and because the landlords could control the actions at the lounge, they should not be entitled to collect rent for residential premises which were not reasonably habitable.

You could distinguish your hypo in that the type of damage was not a natural or probable consequence of allowing children (children may make noise but aren't usually prone to being vandals), the way the noise in Blackett was the natural/prob. consequence of LL permitting the cocktail lounge.

Also, OS, what do you think of the Singer text? It's wonderful at spelling out the BLL in the way a supplement would, but the book certainly relies on a lot of minority views.

[OperaSoprano]

Wow, thank you for doing this. By more absolute right under conveyance theory, do you simply mean that the tenant could sublet, abandon, etc at his or her leisure? I came to the conclusion that tenants have more rights under contract analysis, because of the warranty of habitability, implied covenant of quiet enjoyment, and requirements of good faith and fair dealing. I also focused on unconscionability and the right to shelter, as evidenced by the rights of holdover tenants, who cannot be evicted by self help. Did I come to a reasonable conclusion?

I also talked briefly about fairness and justice and utilitarian aspects of the contract warranties and protections for tenants. I think I got carried away and unleashed general vitriol at landlords as a class, and I have to remind myself that is strictly verboten on the final.

Netopalis covered some of what I meant - basically, the tenant probably has more 'rights' with respect to being a person in a relationship, but has less of an absolute property ownership right because the relationship is one of contracting to supply a quasi-service (a place to live, and the implied warranties and duties that go with it). Objectively the rights the tenant has expand greatly, but they give up that sort of absolute 'this is my parcel for a year, even if it burns down you're not coming on it and I can do with it as I will' as though it were a conveyance. I mean, it sounds weird to say that tenants used to have the right to abandon property, continue to pay rent, and return whenever they wanted (no duty to mitigate) or the right to continue paying rent and enjoy the charred earth where the dwelling once stood (shifted burden of risk of loss) but it was certainly more philosophically pure from a property ownership point of view.

(The other points you added all also make great good sense)

Disco and Netopalis: thank you. The contract for services gloss was missing from my essay, and it should have been discussed. This is a wonderful help.

[OperaSoprano]

OS -- if you had Singer, just go on and on about Radin's personhood theory, protecting the reliance interest, civic republicanism, and covenants as a way to preserve and protect the community. Compare and contrast contract theory versus property theory as means to advance those ends. Then spend the other half of your essay espousing prophylactic measures needed to combat the evils of commodification. Compare and contrast contract theory versus property theory as means to advance that end. Cite Shack. Then argue that zoning is only good, indeed sometimes necessary, if it effects the right result incidental to whomever feels marginal pain in the process. Enjoy your A.

Solidsnake: Excellent work, but if I don't throw in Coase somewhere, it'll be curve pwnage for me.

[OperaSoprano]

Samiseaborn- I like the refraining argument. Thank you.

MrKappus- arguably the broken locks do pose a WoH issue, and if the T is not at fault, I am fairly certain the landlord has to correct the situation whether or not it is the result of natural wear and tear.

Bankhead- I remember Blackett! I argued that, like the bar in Blackett, since the other tenant was the landlord's best friend, he presumably knew what the tenant and his children were like, and he arguably had a better chance of "controlling" their behavior than he would have had the tenant been a stranger.

I did like the Singer casebook, though some of the policy asides drove me crazy. I am not a fan of Coase. Not even slightly. The book did do an excellent job of highlighting the BLL, however, and I enjoyed many of the cases selected, especially Javins and Braschi. I wish all my casebooks were this straightforward and clear.

[Bankhead]

Samiseaborn- I like the refraining argument. Thank you.

MrKappus- arguably the broken locks do pose a WoH issue, and if the T is not at fault, I am fairly certain the landlord has to correct the situation whether or not it is the result of natural wear and tear.

Bankhead- I remember Blackett! I argued that, like the bar in Blackett, since the other tenant was the landlord's best friend, he presumably knew what the tenant and his children were like, and he arguably had a better chance of "controlling" their behavior than he would have had the tenant been a stranger.

I did like the Singer casebook, though some of the policy asides drove me crazy. I am not a fan of Coase. Not even slightly. The book did do an excellent job of highlighting the BLL, however, and I enjoyed many of the cases selected, especially Javins and Braschi. I wish all my casebooks were this straightforward and clear.

Ooh good call on the "knowing" the children.