PROPERTY B SLIDES

1. PROPERTY B SLIDES 2-8-19 National Kite Flying Day National Iowa Day

2. More Music to Accompany JMB: Madonna, Bedtime Stories (1994) On Course Page: Assignments through 2/20 Next Few DF Sessions: • Lauren: Rev Prob. 1I • Today @ 9:40 Here • Next Week: Rev Prob 1M • Brendan Monday @ 9:40 Here • Lauren Wednesday @ 9:40 Here Lunch Today Meet on Bricks @ 12:25 Costa * Escalona * Fava Levan * Niworowski* Peters Suarez

3. Chapter 2. Leased But Not Last: Selected Issues in Landlord/Tenant Law • The Importance of Context: • The Landlord’s Right to Exclude (& Legitimate Interests of Tenants) • Eviction Under the Florida Statutes • Statutory Anti-Discrimination Law • The Right to Transfer • Habitability & Related Issues

4. Importance of Factual Context:Legitimate Interests of TNTs/LDLDs Types of Problems We’ll Address Require Thought re Parties’ Interests • Interpretation of Landlord-Tenant Statutes • Interpretation of Lease/Contract Provisions • Legal Limits on Ability to Lease/Contract (Default Rules/Non-Waivable Rights)

5. Importance of Factual Context:Legitimate Interests of TNTs/LDLDs • Types of Problems We’ll Address All Require Thought re Parties’ Interests • Nature & Strength of Interests Can Vary with Different Types of Leases/Parties; Think About How/Whether Rules Should Chasnge with Context, Especially • Residential v. Commercial [v. Agricultural v. Industrial] • Sophisticated v. Unsophisticated Parties (Relative Bargaining Power)

6. Importance of Factual Context:Legitimate Interests of TNTs/LDLDs • Types of Problems We’ll Address All Require Thought re Parties’ Interests • Interests Can Vary with Different Types of Leases/Parties; Should Rules • 1st Part of Chapter Addresses Limits on Landlord’s Rtto Exclude (LRE) • You’ll Recognize Some Ideas from Unit I • LRE at Start of Tenancy Limited by Anti-Discrimination Statutes (Arising from Public Invitation & Important Public Interest like JMB) • LRE AfterStart of Lease to Evict or to Control Transfers by Tenant Limited by Tenant’s Contract (& Property) Rights (Reminiscent of Shack)

7. Chapter 2. Leased But Not Last: Selected Issues in Landlord/Tenant Law • The Importance of Context: • The Landlord’s Right to Exclude (& Legitimate Interests of Tenants) • Eviction Under the Florida Statutes • Statutory Anti-Discrimination Law • The Right to Transfer • Habitability & Related Issues

8. Eviction Under FL Statute [For Problem Other Than Failure to Pay Rent] • 83.56. Termination of rental agreement … (2) If the tenant materially fails to comply with §83.52 or material provisions of the rental agreement, other than a failure to pay rent, or reasonable rules or regulations … [L FIRST must show • material violation of either • the part of the statute detailing tenant duties -OR- • The lease or the L’s reasonable rules & regulations

9. Eviction Under FL Statute [For Problem Other Than Failure to Pay Rent] • 83.56. Termination of rental agreement … (2) [Once L shows material violation of statute, lease, or rules, need to determine which of two available options applies]: (a) [Terminate immediately] If such noncompliance is of a nature that the T should not be given an opportunity to cure it or if the noncompliance constitutes a subsequent or continuing noncompliance within 12 months of a written warning by the L of a similar violation [such as list of examples] (b) [Give Seven Days to Cure & Terminate if Not Cured or Repeated w/in one Year] If such noncompliance is of a nature that the T should be given an opportunity to cure it, [such as list of examples]

10. Intro to Review Problem 2A: Tim’s Party • Tim = Tenant & College Student • Holds Big Party at Apt.  Noise; Police Arrest 2 Friends • No Prior Violations of Lease or Statute • Assume Violation of Fl. Stat.: • 83.52. Tenant's obligation to maintain dwelling unit. The tenant at all times during the tenancy shall … (7) Conduct himself or herself, and require other persons on the premises with his or her consent to conduct themselves, in a manner that does not unreasonably disturb the tenant's neighbors or constitute a breach of the peace. Can Linda (Landlord) Evict Tim for the Party?

11. Eviction Under FL Statute [For Problem Other Than Failure to Pay Rent] Example of Common Statutory Problem • Statute Creates Two Non-exclusive Categories; Into Which Category Does Conduct Fit? (Mon. for Rev Prob 2A: Tim’s Party) • Common Types of Argument for This Kind of Issue: • Literal: Withinlanguageof either (a) or (b)? [Party really neither] • Comparison (Sub-Qs 1+2): More like terms listed in (a) or in (b)? [Characterization issue.] (III) Policy (Sub-Qs 3+4): Should this behavior (without more ) be enuf for eviction [Think about relevant interests of both Ldld & Tnt.] • Not Every Statutory Issue Uses This Approach. E.g., Nothing in FL MW Statutes or FHA Creates Two Non-Exclusive Categories

12. Right to Exclude: Parcels Open to the PublicJMB: Cont’d • NJSCT holds that large shopping centers must permit protestors to have access to hand out leaflets on social issues. • Our Coverage • Relevant Interests (DQ1.24-1.25) • Logic of Opinion • Application in Future Problems • Permissible Regulation (ACADIA: DQ1. 26) • Relation to Other Right to Exclude Problems (Me & BADLANDS: DQ1.27)

13. JMB, Schmid& Scope of Right to ExcludeRECAP of DQ1.26 (a) • (a) What Malls Covered by JMB Rules • Almost Certainly All “Large” Malls • For Smaller Malls, Under SchmidCould Check: • Extent of Invitation • Compatibility Issues (Level of Likely Disruption; Appropriate Places to Protest, etc.)

14. Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude DQ1.26(b): Assuming the case governs, do all political/protest groups have to be treated alike? Evidence includes: • Common Sense: Can exclude groups if significant problems during past visits. • Otherwise: Basis in 1stAmdt • Might suggest treating all groups/messages the same • BUT (P92) refers to anti-war protest as “most substantial” and “central to the purpose” of 1stAmdt interests; leaves room for argument about other issues.

15. Acadia: DQ 1.26 Acadia Sunrise

16. Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude DQ1.26(c) (Acadia): Under JMB, what kinds of limits or requirements can the mall impose on protestors? • Possible Examples? • [Then We’ll Look at Language from Case]

17. JMB, Schmid& Scope of Right to ExcludeDQ1.26(c) (Acadia): Under JMB, what kinds of limits or requirements can the mall impose on protestors? Possible Examples: • Must stay in designated area. • Limit on # of protestors per group. • Limits re noise level, politeness, etc. • Limits on “adult content” of [at least] photos in leaflets/on signs • Must clean up leaflets left around • Reasonable deposit for [plausible/provable] clean-up/security costs.

18. Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude DQ1.26(c) (Acadia): Under Language of JMB, what kinds of limits or requirements can the mall impose on protestors? Most important phrase likely is … Malls have “full power to adopt … time, place & manner [restrictions] that will assure … that … leafletting does not interfere with the shopping center’s business while … preserving the effectiveness of plaintiff’s exercise of their constitutional right.” (P91 right before §C) Time, Place & Manner [“TPM”] Restrictions = Standard 1stAmdmt Category (in contrast to Subject Matter or Viewpoint Restrictions)

19. Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude DQ1.26(c) (Acadia): Under JMB, what kinds of limits or requirements can the mall impose on protestors? Most important phrase likely is … • (P91): Malls have “full power to adopt … time, place & manner [restrictions] that will assure … that … • leafletting does not interfere with the shopping center’s business while • preserving the effectiveness of P’s exercise of their constitutional right.” • Incorporates/balances interests of both sides. • Other Evidence from JMB re Allowable Limits?

20. JMB, Schmid& Scope of Right to ExcludeDQ1.26(c): Permissible limits or requirements? • Other Evidence from JMB? • General standards • P86 “reasonable conditions” • P89 describing Schmid: “reasonable regulations” • P90 quoting Schmid: “suitable restrictions” • P86: case seems to be limited to passing out leaflets & related activity; suggests, e.g., might be OK to ban harassment or loud noises • P87: conditions noted that presumably go too far • can’t approach shoppers  • insurance coverage FOR $$1m+ 

21. Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude DQ1.26(c): Permissible limits or requirements? • Additional Info from Green Party (NJ 2000) (Note 5@P94-95) • General standards • P95: [Again] Balance rights of both sides in evaluating regulations • P95: Fairly allocated fee OK if “objectively related” to evidence of real costs stemming from leafletting [and presumably other speech activity] • Conditions rejected  • insurance coverage for $$1million  • “requirement of ‘hold harmless clause’”  Means? • Limit on access to a “few days” per year 

22. Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude DQ1.26(b): Do all protest groups have to be treated alike? • Common Sense: Can exclude if significant problems during past visits. • Basis in 1stAmdtsuggests treating all groups/messages the same. • Hard Q not addressed in JMB or Pruneyard: • Can owners treat protestors differently if targeting particular stores in mall? • Arguments for Different Treatment: Front 3 Rows • Arguments for No Different Treatment: Back 2 Rows

23. Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude • Hard Q not addressed in JMB or Pruneyard: • Can owners treat protestors differently if targeting particular stores? • (Issue Arises in Rev. Prob. 1J & 1M) • SeeFashion Valley Mall v. NLRB, 172 P.3d 742 (Cal. 2007) • Forbids mall from excluding peaceful protestors because they are requesting that shoppers boycott a particular mall tenant. • No specific info on whether mall is allowed to place special restrictions on where protestors can operate in relation to targeted business, so room for discussion on what limits might be reasonable.

24. Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude Qs on Permissible Requirements or JMB?

25. Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude • [Pruneyard]/JMB/Schmid Yield /Address Two Types of Qs • ACCESS: When Does Public Get Access to Private Property for Free Speech [or Other Important Public Interests]? • RESTRICTIONS: If Public Gets Access, What Restrictions Can Landowners Impose to Protect Their Legitimate Interests ? • Exam Problems Might AddressEither or Both

26. Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude: ACCESS Qs ACCESS: Use Schmid& JMB to Help Determine if Right to Exclude Should be Limited in Particular Context for Speech Rights or Other Public Policy Considerations I’m not going to ask you to decide from scratch what scope of state’s 1st Amdt should be. Might ask you to assume Schmid/JMB are good law & apply to different claims of free speech access (e.g., Rev. Probs 1L, 1P(Part i), 1Q). Might give you more general Q on scope of right to exclude & you could use Schmid/JMB as one way to analyze (e.g., Rev. Prob. 1K, DQ1.27). For you on your own: I’ve added following slide with list of some relevant considerations

27. Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude • Scope of Right to Exclude in New Situations: Possible Relevant Considerations (Could Also Use for Non-1stAmdt Speech Access) (see also DQ1.28 write-up) • Protection of Disadvantaged Groups. E.g., • Anti-Discrimination Law • Shack & MWs • Relationship to Gov’t or Law • Implied K from Support of Govt for creation or operation of enterprise • B/c Rt to Excl derives from state common law in 1st instance, arguably can’t be used in way that violates public policy (Shack) • Economic Concerns • Monopoly Concern w Innkeeper Rule • Furthering Commerce w Innkeeper Rule • Protecting O’s Economic Interests (Shack & JMB)

28. Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude: ACCESS Qs DQ 1.27: Apply Schmid& JMB to Issue in Shack • (1) Apply SchmidTest • (2) Apply JMB • Compare Shack to Facts of JMB • Relevant Language & Policy Concerns from JMB I’ll Leave for You

29. BADLANDS: Review Problem 1J (S16) NORBECK PASS

30. Review Problem 1J: Badlands • Under J.M.B., what restrictions can N place on protests by TAL • Upscale mall in NJ • (“TAL”) is a non-profit group opposed to use of animal fur for human clothing. • Members have conducted many protests of stores that sell furs. • protests never involved violence or physical contact, • but members are adept at embarrassing patrons who buy furs. • Tnt = Ferraro Fine Furs (FFF) • FFF management asked N to keep TAL away from the FFF store.

31. Review Problem 1L: Short Problem (Everglades) • Free Speech Access to Professional Baseball Stadium • Asked if Os Can Exclude Person Wearing “Protest Shirt”, so Primarily About Access (Not Regulations) • Told Schmid/JMB Govern, so Brooks Not Relevant • Prepare Application of 3 Parts of Schmid Test • Think About Strength of Relevant Interests of Os and of CC (the Protesttor)