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PROPERTY E SLIDES

PROPERTY E SLIDES. 04-15-13. SEATS REMAINING: BASIC COURSES. Administrative Law (44) Bankruptcy (55) Business Assns (76) Civ Pro II (60) Commercial Law (82) Con Law II (61) Crim Pro Adjudication (42) Evidence (152). Family Law (61) Federal Income Tax I (65) Immigration (115)

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PROPERTY E SLIDES

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  1. PROPERTY E SLIDES 04-15-13

  2. SEATS REMAINING: BASIC COURSES • Administrative Law (44) • Bankruptcy (55) • Business Assns (76) • Civ Pro II (60) • Commercial Law (82) • Con Law II (61) • Crim Pro Adjudication (42) • Evidence (152) • Family Law (61) • Federal Income Tax I (65) • Immigration (115) • International Law (89) • Prof Responsibility (41) • Sub Criminal Law (109) • Trusts & Estates (69)

  3. ZION: Sorenson & DQ102-04 TEMPLES & TOWERS OF THE VIRGIN

  4. ZION: DQ102 Evidence in Sorenson P’s EVIDENCE • Landlord: “Yes” • Timing: Saw Afr-Am Girls • To Neighbor: Don’t Intend to Rent to Afr-Ams • L Prefers No Afr-Am Tnts • No Afr-Am Tnts in Complex

  5. ZION: DQ102 Evidence in Sorenson P’s EVIDENCE • Landlord: “Yes” • Timing: Saw Afr-Am Girls • To Neighbor: Don’t Intend to Rent to Afr-Ams • No Afr-Am Tnts in Complex • L Prefers No Afr-Am Tnts D’s EVIDENCE • Explains “Yes” • Saw Party Prep & Ex-Tnt (Prior Parties, Noise, etc.) • Response? • Response? • Other Helpful Fact?

  6. ZION: DQ102 Whose Story More Convincing? P’s EVIDENCE • Landlord: “Yes” • Timing: Saw Afr-Am Girls • To Neighbor: Don’t Intend to Rent to Afr-Ams • No Afr-Am Tnts in Complex • L Prefers No Afr-Am Tnts D’s EVIDENCE • Explains “Yes” • Saw Party Prep & Ex-Tnt (Prior Parties, Noise, etc.) • Because hadn’t applied • Because no applicants • L Involved in Civic Race Relations Project

  7. ZION: DQ102 Role of Appellate Court Assuming the appellate court found the defendant’s story unconvincing (see last sentence of opinion), why didn’t it reverse the decision?

  8. ZION: DQ103: Should P Win as a Matter of Law (Pelzer & Mintzes)? P’s Primary Claim: Court must find for P as a matter of law b/c D admitted to P that he discriminated. • Test really is “no reasonable jury could find …” • P relies on Pelzer and Mintzes. • Pelzer: Giving different terms to applicants based on race violates FHA w/o other evidence of bad intent • Mintzes: Blockbusting case: Statements to induce moving violate statute even if no racial animus

  9. ZION: DQ103: Should P Win as a Matter of Law (Pelzer & Mintzes)? Court Denies P’s Primary Claim: Admission doesn’t mean P wins as a matter of law; P’s intent remains a jury Q. • Court distinguishes Pelzerand Mintzes. • In those cases, statements in Q violated FHA • Here, claimed violation is eviction (with bad intent) • Statement is evidence of intent, not violation itself • D entitled to bring in evidence to rebut • Questions on This Point?

  10. ZION: DQ104:Significance of Claimed Errors • D Atty Asked Q re Marijuana Use (Violating Order) • Why might this harm P’s chances for fair trial? • Purpose of Footnote 14 (“lame explanations”) • D Atty Used Peremptory Challenges to Remove African-Americans from the Jury • Why might this harm P’s chances for fair trial? • Batson v. Kentucky & the Power of Change Questions?

  11. ACADIA: Marable & DQ105-06 Acadia Sunrise

  12. ACADIA: DQ105 Evidence in Marable Evidence re D’s Proffered Reasons for Rejection • Weak Credit/Employment History • D’s Evidence? • P’s Response? • Policy ag. Unmarried Tenants • D’s Evidence? • P’s Response? • D’s Attitude/Harassment of Ds • D’s Evidence? • P’s response? • Other Evidence

  13. DQ106: Standard of Review & Role of Appellate Court • Standard of Review Varies w Fact-Finder • Jury: “No reasonable jury could find …” • Judge: Clear Error = “definite and firm conviction that a mistake has been committed” (S159-60) • Why Does Court Find “Clear Error” Here? • Her Intent: “Finding of Ultimate Fact” = No Deference • Even Conceding All Credibility Qs, Undisputed Documentary Evidence Shows Ds Treated White Applicants Differently • Trial Court Itself Not Very Credible

  14. Concluding Notes on Anti-Discrimination Cases • Study Range of Evidence That Can Support or Refute Discriminatory Intent (Tue: Rev. Prob. 6G) • Discrimination Often Difficult to Prove • Hard to Get at Motives • Clients Often Not Perfect • More Sophisticated Ds Cover Tracks Better • Decision-Makers May Be Disinclined to Find

  15. Concluding Notes on Anti-Discrimination Cases III. Possible Overlap with Right to Transfer Issues A. L Refuses Transfer Requested by T for Specific Reason • T & Potential Transferee Claim: • Actual Reason for Refusal was Unlawful Discrimination • Reason Provided is “Unreasonable” • See Review Problem 6I

  16. POP CULTURE QUIZ:NAME THAT BAND • First Billboard #1 Hit in 1958 • Won 5 Grammy Awards; Nominated for 8 Others • Won American Music Award for Best Soundtrack Album • Featured in a Major Studio Motion Picture Released in 2009

  17. NAME THAT BAND

  18. Rev.Prob.6D: Rent & HabitabilityLast Names: A-E = Tenant; F-L = Landlord • Landlord’s Notice to Tenant re Rent • Landlord’s Duties re Habitability • Habitability as Defense to Non-Payment of Rent

  19. Rev.Prob.6D: Rent & HabitabilityLast Names: A-E = Tenant; F-L = Landlord Landlord’s Notice to Tenant re Rent • Why is Notice re Rent Imperfect Under §83.56 (3)?

  20. Rev.Prob.6D: Rent & HabitabilityLast Names: A-E = Tenant; F-L = Landlord Landlord’s Notice to Tenant re Rent • Why is Notice re Rent Imperfect Under §83.56 (3)? • Maybe No Address etc. (could be in letterhead or on envelope) • Delivered on Thurs Jan 7, so “3 days excluding weekends” = Tue Jan 12, not Sun Jan 10

  21. Rev.Prob.6D: Rent & HabitabilityLast Names: A-E = Tenant; F-L = Landlord Landlord’s Notice to Tenant re Rent • Does Notice “Count” Despite Misdating? • Thu 1/7 Notice w improper date delivered • Tue 1/12 Would be correct date • Wed 1/13: Rent not paid & M files action to evict • 83.56(3) says notice has to be “substantially” in form given, but doesn’t say what to do if error • Basically policy Q about how best to read statute

  22. Rev.Prob.6D: Rent & HabitabilityLast Names: A-E = Tenant; F-L = Landlord Landlord’s Duties re Habitability (Plumbing) • Duty Under Housing Code?

  23. Rev.Prob.6D: Rent & HabitabilityLast Names: A-E = Tenant; F-L = Landlord Landlord’s Duties re Habitability (Plumbing) • Most Pertinent: 17‑23(1) Every dwelling unit shall contain not less than a kitchen sink, lavatory, tub or shower and water closet, all in good working condition and … supplied with adequate hot and cold water. • Arguably Relevant: 17-23(2)(3)(4) & 17-25(6)

  24. Rev.Prob.6D: Rent & HabitabilityLast Names: A-E = Tenant; F-L = Landlord Landlord’s Duties re Habitability (Plumbing) • What is Landlord’s Ultimate Duty Given: • Housing Code • 83.51 • Lease Provision (4)(f) Relieving Landlord of Duty to Repair

  25. Rev.Prob.6D: Rent & HabitabilityLast Names: A-E = Tenant; F-L = Landlord Landlord’s Duties re Habitability (Plumbing) • Duties Under Housing Code Not Waivable for Multi-Unit Building. 83.51(1) • Lease Provision Purporting to Waive Statutory Requirements is Void. 83.47(1)(a)

  26. Rev.Prob.6D: Rent & HabitabilityLast Names: A-E = Tenant; F-L = Landlord Landlord’s Duties re Habitability (Roaches) • Relevant Housing Code Provision: 17-27 (7) … Every occupant of a dwelling unit in a building containing more than one (1) dwelling unit shall be responsible for [insect] extermination whenever his dwelling unit is the only one (1) infested, except that whenever such infestation is caused by the failure of the owner to carry out the provisions of this article, extermination shall be the responsibility of the owner. • Means? What is True Here?

  27. Rev.Prob.6D: Rent & HabitabilityLast Names: A-E = Tenant; F-L = Landlord Landlord’s Duties re Habitability (Roaches) • What is Landlord’s Ultimate Duty Given: • Housing Code • 83.51 • Lease Provision (4)(f) Relieving Landlord of Duty to Exterminate • If Duty Under Housing Code, Not Waivable • Otherwise?

  28. Rev.Prob.6D: Rent & HabitabilityLast Names: A-E = Tenant; F-L = Landlord Landlord’s Duties re Habitability (Roaches) • Duties Under Housing Code Not Waivable for Multi-Unit Building. 83.51(1) • If No Ldld Duty Under Housing Code: • Extermination Listed in 83.51(2)(a)(1) • Waivable: “Unless Otherwise Agreed in Writing”

  29. Rev.Prob.6D: Rent & HabitabilityLast Names: A-E = Tenant; F-L = Landlord Habitability Defense to Non-Payment of Rent 83.60(1): … The defense of a material noncompliance with §83.51(1) may be raised by the tenant if 7 days have elapsed after the delivery of written notice by the tenant to the landlord, specifying the noncompliance and indicating the intention of the tenant not to pay rent by reason thereof.

  30. Rev.Prob.6D: Rent & HabitabilityLast Names: A-E = Tenant; F-L = Landlord Habitability Defense to Non-Payment of Rent 83.60(1): … The defense of a material noncompliance with §83.51(1) may be raised … after the delivery of written notice … specifying the noncompliance and indicating the intention of the tenant not to pay rent by reason thereof. • No Notice in Form Indicated BUT • More General Written Notice re Roaches • Landlord Actually Knew of Complaints • Good Enough to Allow Rent Withholding?

  31. Review Problem 6D: Pet & AerialLast Names: M-R = Tenant; S-Z = Landlord • Violations of Lease/Statute • Opportunity to Cure • Adequacy of Notice to Evict

  32. Review Problem 6D: Pet & AerialLast Names: M-R = Tenant; S-Z = Landlord Violations of Lease/Statute • Dog = Lease Violation • Does Aerial Violate 83.52? • Possibly Relevant Provisions?

  33. Review Problem 6D: Pet & AerialLast Names: M-R = Tenant; S-Z = Landlord Violations of Lease/Statute • Does Aerial Violate 83.52? • (5) Use and operate in a reasonable manner all electrical … appliances…. • (6) Not destroy, deface, damage, impair, or remove any part of the premises …

  34. Review Problem 6D: Pet & AerialLast Names: M-R = Tenant; S-Z = Landlord Opportunity to Cure: 83.56(2)(a) v. (b) (a) No Cure : “destruction, damage, or misuse of the landlord's or other tenants' property by intentional act” (b) Can Cure: “having or permitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permitting such parking; or failing to keep the premises clean and sanitary” • Dog = Explicit Right to Cure

  35. Review Problem 6D: Pet & AerialLast Names: M-R = Tenant; S-Z = Landlord Opportunity to Cure: 83.56(2)(a) v. (b) (a) No Cure : “destruction, damage, or misuse of the landlord's or other tenants' property by intentional act” (b) Can Cure: “having or permitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permitting such parking; or failing to keep the premises clean and sanitary” • Aerial (assume “Deface” under 83.52(6)) • Literal Arguments • Comparative Arguments • Policy Arguments

  36. Review Problem 6D: Pet & AerialLast Names: M-R = Tenant; S-Z = Landlord Adequacy of Notices: Issues re 1st Notice • No Pet at Time Notice Sent • “Defacement” Not Specified • Sent Automatically to All Tenants • L Continued to Accept Rent Although Aerial Not Removed

  37. Review Problem 6F(S152)Opinion/Dissent • State Supreme Court in Prior Case: • Where Commercial Lease Required Landlord’s Consent to Transfer, the Landlord could not withhold consent Unreasonably; • Did not rule on whether T could expressly waive this reasonableness requirement • Lease Here: “Tenant may not transfer its interest in this lease without permission of the Landlord, which permission maybe withheld for any reason at all.”

  38. Review Problem 6F(S152)Opinion/Dissent Two Issues Tomorrow: • Is Reasonableness Requirement Waivable? (DENALI) • If Not, Were L’s Reasons for Denying Consent Reasonable (EVERGLADES)

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