property e slides 04-15-13. seats remaining: basic courses administrative law (44) bankruptcy (55)...

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)• International Law (89)• Prof Responsibility (41)• Sub Criminal Law (109)• Trusts & Estates (69)

ZION: Sorenson & DQ102-04

TEMPLES & TOWERS OF THE VIRGIN

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

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?

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

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?

ZION: DQ103: Should P Win as a ZION: DQ103: Should P Win as a Matter of Law Matter of Law (Pelzer & Mintzes)?(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

ZION: DQ103: Should P Win as a ZION: DQ103: Should P Win as a Matter of Law Matter of Law (Pelzer & Mintzes)?(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 Pelzer and 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?

ZION: DQ104:ZION: DQ104:Significance of Claimed ErrorsSignificance of Claimed Errors

1. 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”)

2. 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?

ACADIA: Marable & DQ105-06

Acadia Sunrise

ACADIA: DQ105ACADIA: DQ105 Evidence in Evidence in MarableMarable

Evidence re D’s Proffered Reasons for Rejection

1.Weak Credit/Employment History– D’s Evidence?– P’s Response?

2.Policy ag. Unmarried Tenants– D’s Evidence?– P’s Response?

3.D’s Attitude/Harassment of Ds– D’s Evidence?– P’s response?

4.Other Evidence

DQ106: Standard of Review &DQ106: Standard of Review & Role of Appellate Court Role of Appellate Court

I. Standard of Review Varies w Fact-FinderA. Jury: “No reasonable jury could find …”B. Judge: Clear Error = “definite and firm conviction that

a mistake has been committed” (S159-60)

II. Why Does Court Find “Clear Error” Here?A. Her Intent: “Finding of Ultimate Fact” = No DeferenceB. Even Conceding All Credibility Qs, Undisputed

Documentary Evidence Shows Ds Treated White Applicants Differently

C. Trial Court Itself Not Very Credible

Concluding Notes on Anti-Concluding Notes on Anti-Discrimination CasesDiscrimination Cases

I. Study Range of Evidence That Can Support or Refute Discriminatory Intent (Tue: Rev. Prob. 6G)

II. Discrimination Often Difficult to ProveA. Hard to Get at MotivesB. Clients Often Not PerfectC. More Sophisticated Ds Cover Tracks BetterD. Decision-Makers May Be Disinclined to Find

Concluding Notes on Anti-Concluding Notes on Anti-Discrimination CasesDiscrimination Cases

III. Possible Overlap with Right to Transfer IssuesA. L Refuses Transfer Requested by T for Specific ReasonB.T & Potential Transferee Claim:

1. Actual Reason for Refusal was Unlawful Discrimination2. Reason Provided is “Unreasonable”

C.See Review Problem 6I

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

NAME THAT BAND

Rev.Prob.6D: Rent & HabitabilityRev.Prob.6D: Rent & HabitabilityLast Names: A-E = Tenant; F-L = LandlordLast Names: A-E = Tenant; F-L = Landlord

I. Landlord’s Notice to Tenant re RentII. Landlord’s Duties re Habitability III. Habitability as Defense to Non-

Payment of Rent


Landlord’s Notice to Tenant re Rent•Why is Notice re Rent Imperfect Under §83.56 (3)?


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


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


Landlord’s Duties re Habitability (Plumbing)•Duty Under Housing Code?


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)


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


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)


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?


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?


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”


Habitability Defense to Non-Payment of Rent83.60(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.


Habitability Defense to Non-Payment of Rent83.60(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?

Review Problem 6D: Pet & AerialReview Problem 6D: Pet & AerialLast Names: M-R = Tenant; S-Z = LandlordLast Names: M-R = Tenant; S-Z = Landlord

I. Violations of Lease/StatuteII. Opportunity to CureIII. Adequacy of Notice to Evict


Violations of Lease/Statute•Dog = Lease Violation•Does Aerial Violate 83.52? –Possibly Relevant Provisions?


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 …


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


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


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

Review Problem 6F(S152)Review Problem 6F(S152)Opinion/DissentOpinion/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.”

Review Problem 6F(S152)Review Problem 6F(S152)Opinion/DissentOpinion/Dissent

Two Issues Tomorrow:(A)Is Reasonableness Requirement Waivable? (DENALI)(B)If Not, Were L’s Reasons for Denying Consent Reasonable (EVERGLADES)

property e slides 04-15-13. seats remaining: basic courses administrative law (44) bankruptcy (55)...

Documents

aframsno afr

dq102 evidence

ps response

evidence of intent

dq105 evidence

matter of law ps intent

tntsno afr

matter of law pelzer