Property Ef Spring 2007

PROPERTY A SPRING 2017

Information Memo # 3

Chapter Two: Landlord-Tenant Law (Preliminary Version (3/2/17))

CURRENT TABLE OF CONTENTS

(A) List of Relevant Old Exam Questions (IM3-1)

(B) Coverage Overview (IM3-1 à IM3-2)

(C) DQs 2.01-2.06: Professor’s Comments & Suggested Answers (IM3-2 à IM3-6)

(D) N.Y. Roommate Law: Text & Possible Relevance (IM3-6à IM3-8)

(E) Review Problems: Comments & Best Answers (IM3-8 à 3-43)

(F) Tempest at the Teapot: Comments & Best Answers (IM3-43)

(A) List of Relevant Old Exam Questions

Tenant Selection: 3N 3V

Habitability & Eviction: 3G 2014-Q3 2016-Q4

Both: 1H 1P 1T 4G 4U 4AB

(AB Coverage Overview

* = Statutes that Could Appear on Test

A. General Information & Interests of the Parties

1. Some Themes in Landlord-Tenant Law

2. The Process of Eviction; Landlord’s Remedies Generally & in Florida

a. * Fl.Stat. §83.56(2) & (3)

B. Tenant Selection

1. Statutory Anti-Discrimination Law(I won’t test specific statutory language)

a. General Operation of Federal & State Statutes (See Write-Up of DQ2.01-2.06 below)

b. Protected Characteristics under the Federal Statutes

c. Proof of Discriminatory Intent: Sorenson & Note on Evidence

2. The Right to Transfer & Reasonableness Requirements

a. Reasonableness: Implied Term & Definition: Funk

b. Waivability Varies by State

3. * N.Y. Roommate Law (See Part (D) in this Memo)

C. Habitability & Related Issues

1. Claims Arising Out of the Right to Quiet Enjoyment

a. Partial Actual Eviction: Barash

b. Partial and Complete Constructive Eviction: Barash & Gurian

c. Landlord Responsibility for 3d Party Acts

2. Implied Warranty of Habitability: Javins

a. Minimum Housing Standards: Breach, Notice, Remedies, Waivability Varies

b. * Fl.Stat. §§83.51; 83.52; 83.54; 83.56(1); 83.60

c. * Miami-Dade County Housing Code §§17-23(1); 17-27(7)

d. Possible Extensions Beyond Low Rent Residences

3. Tenant Remedies for Undesirable Neighbors: Knudsen

(1) Protected Characteristics

(a) Generally: Almost every anti-discrimination statute includes a list of protected characteristics. For every statute I know of except the California provision described on P85, the list provides the exclusive set of grounds for claims under the statute. I expect you to know the characteristics protected by the FHA and the Civil Rights Act of 1866. You also need to be aware (especially for lawyering problems, that state and local anti-discrimination provisions often protect additional characteristics, most frequently sexual orientation and marital status (often defined as being married, single, divorced, widowed or separated), but sometimes also source of income (if legal), political affiliation and gender identity.

(b) Coverage of Civil Rights Act of 1866 (DQ2.01): I will lay out here what the U.S. Supreme Court says this statute means and leave for you the question of whether it is a “reasonable interpretation” of the language. Based on the legislative history, the Court reads the statute as addressing all forms of “race discrimination” defined broadly to include ancestry and ethnic origin. (The 1866 Congress referred to, e.g., Mexican, Chinese, and German “races.”) As a result, the court has held explicitly that the statute prohibits discrimination against people because they are “white” and because they are “Jewish” (which in the U.S. is typically viewed as ethnicity as well as religion). Lower court cases include discrimination against “Latinos” or “Hispanics” and Sorenson and other cases include discrimination based on the race of associates, visitors, friends or family members.

· Directly:

o The prohibitions of discrimination on the basis of “race, color, religion, sex, … or national origin” protect everyone, since everyone has each of these (atheism and agnosticism generally are treated as forms of religion).

o The “familial status” and “handicap” only address claims by people meeting those definitions. In other words, the statute allows housing providers to favor those living with children over those who aren’t and to favor people with disabilities over the fully ab;e-bodied.

· Indirectly: My best reading of the statute and caselaw is that everybody is indirectly protected in two ways:

o The statute prohibits decisions based on the mistaken belief you have a protected characteristic. 3602((h)(3) does this explicitly for “handicap.”

o The statute prohibits decisions based on your associations with someone of a protected characteristic. 3604(f)(1)(c) and (2)(c) do this explicitly for “handicap.” Sorenson and other cases do it explicitly for race.

(d) “Familial Status” (DQ2.03) means one or more adults residing with one or more dependent minor children or planning to do so. It prevents housing providers from excluding people with children or who are pregnant or planning adoption or fosterage. Note that it does not protect exclusion based on marital status or other relationships between the adults in the household.

· Why might this be a serious problem? Landlords often believe children cause more noise and damage than ault tenants. Many childless adults prefer to live without children underfoot. Probably as a result, the legislative history of the 1988 Amendments to the FHA (which added this category) includes evidence of widespread exclusion of families with children, often through “adults only” rules in apartment complexes, meaning that families with children and moderate incomes often had trouble finding affordable rental housing.

· Why is there a special exception for this type of discrimination in §3607(b)? Housing designed for people 55 and over is exempt from claims of “familial status” discrimination. I call that the “been there, done that” exemption, because the idea seems to be that people who have finished raising thjeir own children should not have to deal with other people’s kids ifthey choose not to. The exemption may also be evidence of the great lobbying power of the AARP. Sadly, the exception can lead to tragedies where a set of parents die, but surviving minor children are not allowed to move in with their grandparents who live in exempted housing.

(e) Sex Discrimination in Housing (DQ2.04): In employment, near-total exclusion of women from certain professions was common before serious enforcement of federal anti-discrimination law (Title VII). By contrast, nobody believes that the FHA prevents all-male or all-female complexes or neighborhoods. The most common forms of sex discrimination in housing seem to be:

· Discrimination against women in the provision of mortgages (covered by §3605, which you don’t have)

· Sexual harassment by male landlords of female tenants (usually women living alone or single mothers). This is often considered discrimination in terms and privileges under (usually women living alone or single mothers). This is often considered discrimination in terms and privileges under §3604(b). It is particular difficult for the women because the landlord has a key tyo the apartment (many reported incidents involve the landlord entering the apartment while the woman is in the shower).

· Occasional rental housing discrimination against men (usually college aged).

Note that although nothing in 3604(c) draws this line, HUD will not prosecute sex-based advertising when the advertiser seeks a roommate and some recent caselaw suggests that privacy interests would make that kind of advertising lawful.

(2) Conduct Addressed by the Statutes

(a) Generally: Anti-discrimination statutes generally delineate types of conduct that are prohibited if done “because of” one of the listed protected characteristics. The Civil Rights Act of 1866 uses different language but is read to operate in a similar way, prohibiting both governments and private parties from denying people access to the listed transactions on the basis of race (as defined above). I will only test you on the operation of anti-discrimination statutes in the context of refusal to enter leases at all or on equal terms (residential leases covered by the FHA and both residential and commercial leases covered by the Civil Right Act of 1866). On a lawyering question, you might also check state and local provisions, which are likely to also address equal access to leases, but might have different protected classes or exemptions.

(b) Covered Race-Based Conduct: §1982 v. §3604(a)-(d) (DQ2.05)

(i) Race-Based Conduct Covered by §1982 but not the FHA

· Transactions involving personal property (i.e., not land or attached buildings)

· Transactions involving non-residential real property (commercial, agricultural, industrial, etc.)

· Transactions that fall under the FHA’s exceptions for single-family homes and rooming houses (see below).

· The FHA prohibits a list of specific conduct, but §1982 instead grants or ensures open-ended rights “… to inherit, purchase, lease, sell, hold, and convey real and personal property.” Thus, the more general language of §1982 may leave room for a court to hold that it covers other instances of conduct not listed specifically in the FHA.

(ii) Race-Based Conduct Covered by the FHA but not §1982:

· The FHA specifically addresses advertising (3604(c)) and lying about the availability of housing (3604(d)). Not clear if §1982 does either.

· §1982 is limited to claims by U.S. citizens. The FHA is not.

(c) Blockbusting Under §3604(e) (DQ2.06(a)): Prevents real estate professionals from trying to increase their sales by suggesting to residents in a particular area that they should sell theirt houses because the [usually racial] demographics of the neighborhood are changing. In the 1950s and 1960s in particular, when the first African-American families moved in to all-white suburbs, real estate agents would widely advertise in ways that played on racial fears of white residents. As a result, many neighborhoods rapidly went from all white to mostly African-American, re-establishing segregation while providing lots of 6% commissions to the real estate industry.

(d) Reasonable Modifications Under §3604(f)(3)(A) (DQ2.06(b)): Sometimes tenants with a disability will find it difficult to utilize a rental property without making physical modifications to the premises like installing ramps, grab bars for the toilet or bath, changing door knobs or lowering light switches. This provision allows these tenants to make this type of modification at their own expense (over the landlord’s objection) where “reasonable.” Regulations interpreting the provision allow the landlord to insist that, at the end of the tenancy, the tenant undo modifications that would be undesirable to future tenants and that the tenant put money into escrow to cover the cost of the necessary changes.

(3) Exemptions:

(a) Generally: Most anti-discrimination statutes (except the Civil Rights Act of 1866) contain some exemptions/exceptions, often including those addressing small players or religious organizations. I will not ask you to parse the language of the FHA exemptions, but might tell you when they do or do not apply to a problem. For lawyering questions, you should be aware of the rough outline of the exemptions described below and of the possibility that local or state statutes will have different exemptions but might also cover conduct exempted by the FHA. Finally, you need to understand that exemptions usually (bytheir terms) address only some or all claims made under the same statutory scheme. Thus, the FHA exemptions to not create exceptions to the §1982 or to state statutes, the FHA smallholders exemptions do not reach advertising claims under 3604(c), and the exemption for housing for older persons only applies to family status claims.

(b) Smallholders Exemptions Under §3603(b): Both these provisions exempt relatively small players who are putting relatively few units on the market. These provisions have two common justifications: (i) that smaller players have greater personal and privacy interests in choosing those with whom they do business than those managing/selling more units; and (ii) eliminating the social costs of discrimination regarding only a few units may not be worth the preventative costs of regulation or litigation. Significantly, because these exemptions only limit the reach of the FHA itself, discrimination on the basis of race in these transactions is still prohibited by the Civil Rights Act of 1866.

(i) §3603(b)(2) (DQ2.06(c)): Exempts from §3604 (except for advertising limits) rentals of rooms or units in private homes or boarding houses where the owner occupies one unit and rents out not more than three others. Known as the “Mrs. Murphy” exception after a stereotypical Irish widow running a boarding house to make ends meet, the intimate setting and small economic impact make the situations it addresses strong cases for recognizing strong personal and privacy rights of the owners.

(ii) §3603(b)(1) (DQ2.06(e)): Exempts sales or rentals of single-family houses (SFHs) if the owner (A) has no more than three SFHs on the market; (B) does not use a professional real estate broker or agent; and (C) does not employ discriminatory advertising. Where the transactions in question are rentals, this operates similarly to (b)(2) except the three exempted rental units are all in separate buildings. Where the transactions in question are sales, it is much less clear why a seller has any strong interests in who ends up in the house. It is possible that Congress worried about interfering with continuing relations between the seller and the neighbors. In any event, the limits on the use of brokers and advertising minimize the ripple effects of allowing discrimination in the primary transaction.

(i) Religious Organizations: Allows religious organizations and non-profits associated with them to favor members of the particular religion (as long as the religion itself is not limited by race, color or national origin). This allows, e.g.,

· Religious orders like monastaries or convents to limit housing to members of the order;

· A local house of worship to make housing available only to its clergy;

· A religiously affiliated university to favor members of its religion in providing housing;

· A religiouslyaffiliated nursing home to limit access to members of its religion

(ii) Private Clubs: Designed to coordinate with the private club exception to the federal public accommodations anti-discrimination statute (P85), it allows private clubs to charge members for places to stay overnight without triggering anti-discrimination claims.

(D) N.Y. Roommate Law: Text & Possible Relevance

(1) Text: NY Real Property Law 235-f NY “ROOMMATE LAW”)(1983)

1.As used in this section, the terms:

(a) “Tenant” means a person occupying or entitled to occupy a residential rental premises who is … a party to the lease or rental agreement for such premises ….

(b) “Occupant” means a person, other than a tenant or a member of a tenant's immediate family, occupying a premises with the consent of the tenant or tenants.

2. It shall be unlawful for a landlord to restrict occupancy of residential premises, by express lease terms or otherwise, to a tenant or tenants or to such tenants and immediate family. Any such restriction in a lease or rental agreement entered into or renewed before or after the effective date of this section shall be unenforceable as against public policy.