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Flashcards in 8) LLT Deck (66):
1

Retaliatory eviction: elements and burden shifting

1) T does protected activity 2) LL tries to evict T 3) w/in the statutory time (6mo) THEN presumption that eviction retaliatory burden shifts to LL to demonstrate legit reason for eviction if LL can, then burden shifts back to T to show AD of retaliatory eviction by preponderance of the evidence

2

Slavin v. Rent Control Board of Brookline

F: rent control board won't issue eviction approval to Ll bc said implied duty of reasonableness H: no requirement in residential leaes that LL-approves-subletter clause requires LL to be reasonable: ok arbitrarily evict

3

for CE or QE must move out w/in...

a reasonable period of time

4

implied warranty of habit: W

--def: fit for human habitation and meet bare living requirements REGARDLESS OF HOUSING CODE. objective test (reasonable person would find premises uninhabitable)

5

F: D refuses to allow subletting of his airport hangar to Ps for no reason H: no-sublet clause in commercial lease unenforceable if unreasonable. Commerically reasonable: financial responsibility of proposed assignee, suitability of use for particular property, legality of proposed use, need for alteration of hte premises, nature of occupancy. NOT commerically reasonable: personal taste, convenience, sensibility, trying to get better rent

Kendall v. Ernest Pestana Inc

6

retalitory eviction "evict"

can sometimes include not renewing m2m lease (see RObinson). Usu dn include nonrenewal of term of years

7

constructive eviction -- "LL's wrongful conduct" (and an alternative)

has to be BY LL or w/in his control. alternate remedy if not --> nuisance (vs 3rd parties)

8

LL's duty to mitigate BOP

on LL (most states)

9

F: 1,500 housing code violations, D's defense to P's UD H: implied warranty will reduce amt of rent due where violations existed during the period rent claimed and wht portion of rent? (noting changes from agrarian society and PP concerns)

Javins v. First Ntl Realty Corp

10

implied terms of lease (exs)

not waiveable 1) good faith and fair dealing 2) quiet enjoyment 3) implied warranty habit

11

LL accepts T's surrender:

LL can sue immediately LL can sue for nl damages BUT NOT FUTURE RENT

12

F: LL trying to evict Ts who formed tenants assn and one of them hit lL H: have met BOP for retaliatory eviction but not the one who hit bc LL had nonretaliatory reason

Hillview Associates v. Bloomquist

13

leases control, except when (3)

1) some terms that you can't k-around 1b) ex you usu can't k around LL's duty to mitigate damages 2) some states -- consumer protection statutes

14

constructive eviction: T remedies

--move out before end of lease term

15

assignment vs subletting

assignment: transfer ALL of T's property rights vs subletting some

16

Times LL CANT end the lease (4)

1) discrimination 2) rent control OR other good cause provision 3) Sec 8 4) special laws re condo conversion

17

tenancy at will (3)

no notice to end from either party but basically dn exist in jurisdictions that have min notice requiremt bc then it's a periodic T death of LLT DOES terminate

18

tenancy at sufferance

holdover T: rightfully in possession but wrongfully stays (contrast trespassing)

19

constructive eviction vs IWH

usually CE in commercial,for habit problems vs IWH in residential

20

IWH

exception

defects must be so substantial that a reasonable person would find the premises uninhabitable.  De minimis violations will not suffice.

21

Imperial Colliery Co v. Fout

F: T has $1/yr lease in coal house, labor strike evicted H: no reatliatory eviction bc right was incidental to tenancy (it has to be a tenancy related right!)

22

IWH: exception

de minimus --eg it might technically be a legal code violation, but no heat in summer in LA or mailbox

23

Kendall v. Ernest Pestana Inc

F: D refuses to allow subletting of his airport hangar to Ps for no reason H: no-sublet clause in commercial lease unenforceable if unreasonable. Commerically reasonable: financial responsibility of proposed assignee, suitability of use for particular property, legality of proposed use, need for alteration of hte premises, nature of occupancy. NOT commerically reasonable: personal taste, convenience, sensibility, trying to get better rent

24

damages LL can ALWAYS sue for

--back rent --advertising/search costs of finding new T

25

retaliatory eviction: statutory timeframe W

6 mo

26

wait and sue for rent at end of lease term

now not really allowed bc must mitigate damages damages: all rent owed until end of term

27

periodic tenancy (3)

eg m2m --automatic renewal --usu must give notice of length of 1 period (sometimes statutory min 1 mo etc) --deat of LL/T dn terminate

28

covenant of good faith and fair dealing -- exs (3)

1) T can't commit waste on property 2) T has right to exclude ppl 3) LL must surrender property when it's time for lease to start

29

LL's duty to reasonably mitigate damages

--attempt to rent the new unit --doesn't mean you have to rent it first if other identical units are vacant --key: identical

30

implied warranty of habit? minority

would require reference to housing code (tho it always helps)

31

implied warranty of habit: commercial?

no (cf Minjak: mixed use space)

32

subletting: what does it mean to transfer only "some" of T's possessory rights? (2)

-- eg less time than T's full lease or T has some right of reersion/reentry

33

time T can end lease early

DV (some states)

34

Remedy options for Ts (implied warranty habit) (8)

1) recission (move out before end of lease) 2) stay but: withhold rent, 3) abate rent (% or FMV as is) 4) repair and deduct 5) affirmative suit (injunction?) 6) admin remedies 7) crim penalties 8) compensatory damages (even if dn rise to level of IWH) (painting/broken window)

35

F: rent control board won't issue eviction approval to Ll bc said implied duty of reasonableness H: no requirement in residential leaes that LL-approves-subletter clause requires LL to be reasonable: ok arbitrarily evict

Slavin v. Rent Control Board of Brookline

36

LLT: commercial vs. residential

residential: courts more likely to use CL rules (vs lease) bc commercial is arms-length, sophisticated parties, etc

37

things T has to do for CE (3)

1) reasonble notice 2) reasonable time to cure 3) vacate w/i reasonable time MUST MOVE OUT IN W

38

term of years (3)

specified period of time --ends automatically at end of term --> no obligation to renew or automatic renewal --BUT: converts automatically to m2m if Ll keeps accepting rent --death of either party DN TERMIANTE LEASE

39

Reasonableness re who to approve as subletter: minority rule

there is a reasonablness requirement esp for commerical...residential more intimiate/less economic

40

assignment (2)

transfer ALL of T's property rights new T directly responsible to LL for all obligations under original lease, and LL to T both can sue each other)

41

Sommer v. Kridel

F: T has 2 year lease w LL but breaks it immediately dn get married, LL refuses to rent to new person and sues T for all back rent H: LL must mitigate damages

42

"so substantially interferes w T's use and enjoyment"

so serious that a reaosnable person would find it uninhabitable/unfit for commercial business

43

exception: situation where LL can sue Subtenant

ST expressly promises T that ST will pay rent to LL. Here, LL can sue ST as 3rd party beneficiary (LL is 3PBbc he was intended benefitiary of sub-T's promise to T)

44

LL accepts surrender vs not, one effect:

if T leaves, new T comes/goes and still old T's term, LL can't go after old T the second time if accepted surrender of lease

45

F: T has 2 year lease w LL but breaks it immediately dn get married, LL refuses to rent to new person and sues T for all back rent H: LL must mitigate damages

Sommer v. Kridel

46

Robinson v. Diamond (NR)

F: bad habit, LL tries to end m2m, T says rtln (complain conditions), Ll wants to take it off market H: to show not retaliatory... --mere desire to take unit off market NOT legit business reason --can't partially go out of business...would be ok IF he went out of business entirely Dissent: LL is not a public utility and now no one will want to be a LL

47

Implied Warranty Habit: what does T have to do?

provide specific notice give reaosnble time to cure (dnh move out)

48

Re-let on T's account

LL waits to sue until after finding new T can sue for difference nl damages AND difference btwn old and new rent AND lost rent in meantime

49

leases: SOF?

yes if more than 1 yr no if m2m, even if extends beyond a year (bc term directly discussed in k is 1 mo)

50

Hillview Associates v. Bloomquist

F: LL trying to evict Ts who formed tenants assn and one of them hit lL H: have met BOP for retaliatory eviction but not the one who hit bc LL had nonretaliatory reason

51

despite duty to mitigate, LL can still recover: (3 + an exception)

costs of finding new T rent while vacant difference btwn rental price and new rent if lower (but can't rent to your sister for $5)

52

factors that tend to show legit reason for Ll to evict (from Hillview) (7)

1) reasonable exercise of business judgment 2) can't afford to repair 3) LL wants to evict everyone to sell entire property (ambiguity re "entire AND rejected as reason by Robinson) 4) wants to put entire property to different use 5) unaware of T's protected activities 6) didn't act at first opportunity after learning of conduct 7) conduct not discriminatory

53

constructive eviction: eleemtns (3)

1) LL's wrongful conduct 2) so substantially intefereres w T's use and enjoymen that 3) T is forced to move out

54

Minjak v. Randolph

F: nonpayment UD, D of constructive eviction breach habit. residential/music, leaks, construction dangerous stairs, bricks on head H: constructive eviction ok where they didn't move out bc they had to stop using music studio part, LL was extreme and dn repsond to complaints (minority rule)

55

elements of quiet enjoyment:

existence of a condition that substantialyl inferfered w T’s use and enjoyment,

notice given +

LL reasonable time to cure +

ten T move out ((basically, needs to lead to CE))

56

implied warranty of habit: tell me something I don't already know (2)

usu have to pay rent into an escrow acct old CL view: caveat lessee (agrarian society)

57

cov of quiet enjoyment, rship w IWH

1) quiet enjoyment serves as a commercial version of IWH 2) quiet enjoyment can also be used in residential habit. issues when they aren't quite extreme enough for IWH (ex if not completely unfit for living)

58

IWH: basic idea

you can stay, sometimes w/o paying rent, when conditions are bad

59

LL's options when T breaches lease by stopping rent and moving out (3)

1) accept T's surrender 2) relet on T's account 3) wait and sue for rent at end of lease term

60

F: nonpayment UD, D of constructive eviction breach habit. residential/music, leaks, construction dangerous stairs, bricks on head H: constructive eviction ok where they didn't move out bc they had to stop using music studio part, LL was extreme and dn repsond to complaints (minority rule)

Minjak v. Randolph

61

LL dnh duty to mitigate if

commercial!

62

Javins v. First Ntl Realty Corp

F: 1,500 housing code violations, D's defense to P's UD H: implied warranty will reduce amt of rent due where violations existed during the period rent claimed and wht portion of rent? (noting changes from agrarian society and PP concerns)

63

Reasonableness re. who to approve as a subletter: majority rule

*W! LL can arbitrarily refuse to allow proposed assigneed no matter how unreasonable

64

F: bad habit, LL tries to end m2m, T says rtln (complain conditions), Ll wants to take it off market H: to show not retaliatory... --mere desire to take unit off market NOT legit business reason --can't partially go out of business...would be ok IF he went out of business entirely Dissent: LL is not a public utility and now no one will want to be a LL

Robinson v. Diamond (NR)

65

types of leasehold estates

1) term of years 2) periodic tenancy 3) tenancy at will 4) tenancy at sufferance

66

subletting (2)

transfer only some of T's possessory rights LL can't sue subtentant