LOGISTICS No Office Hours Today Test Grades & Answers/Comments Handout Available by Early Next Week Fall Schedule Available Later in the Week –I’ll Talk

LOGISTICS• No Office Hours Today

• Test Grades & Answers/Comments Handout Available by Early Next Week

• Fall Schedule Available Later in the Week– I’ll Talk About Course Selection Next Monday– Also Course Selection Advice on My Home Page

• Doing an Old Exam Question for Feedback– Info on Course Page– I’ll Talk About and Take Qs on Wed/Fri

CORRECTIONS• Course Page changes made Sat. a.m.

– DQ 109-10: “blackletter tests” are on S155

– Several adjustments to Assignment Sheet

• Corrections to Textbook for Wed/Fri– P830 line 9: “dominant” should be

“servient”

– P848 2d para. line 5: “licensor” should be “licensee”

Music: Stevie Nicks, Bella Donna (1981)

NCAA CONTEST POTENTIAL WINNERS

• If Michigan State reaches finals: Ainsworth

• If Butler over W.V. in finals: Ainsworth

• If W.V. over Butler in finals: B. Young

• If Duke v. Butler in finals: Rosado-Barreras

The Rule Against Perpetuities

Not Tested!So Why Cover?

The Rule Against PerpetuitiesWhy Cover?

Horror Movie VALUE(The Shadow of the Past)

The Rule Against PerpetuitiesWhy Cover?

• Awareness of Rule• Policy Reasons for Interfering with Intent of

Grantor– Alienability– Limit Dead Hand Control


No [contingent future] interest [in a grantee] is good unless it must

vest, if at all, not later than twenty-one years after some life in being

at the creation of the interest.


Paradigm Grant: (in will): To my children for life, then to my first grandchild to turn 21.


Paradigm Grant: (in will): To my children for life, then to my first grandchild to turn 21.

Easy Case (Void): To my children for life, then to my first grandchild to turn 30.


Paradigm Grant: (in will): To my children for life, then to my first grandchild to turn 21.Easy Case (Void): To my children for life,

then to my first grandchild to turn 30.Easy Case (Void): To B and B’s heirs, but if

the property is ever used for commercial purposes, to C and C’s heirs.


Jiminy conveys to Pinocchio for life, then to Cleo if Cleo attains the age of 30." Cleo

is now 2 years old.


Jiminy conveys to Pinocchio for life, then to Cleo if Cleo attains the age of 30."

Cleo is now 2 years old.

• OK. Must vest (if at all) during Cleo’s lifetime.

• That can vest 21 year’s after P’s death doesn’t matter if C can serve as measuring life.


Mary, a teacher of property law, grants $1,000 "for all members of my present property

class who are admitted to the bar."


Mary, a teacher of property law, grants $1,000 "for all members of my present property

class who are admitted to the bar."

• OK. Whenever grant to living person conditional on that person doing something, OK because has to happen w/in their life.


PRACTICE POINTS

• Modified by statute or caselaw in most states (although basic analysis usually still required).

• Can show up (as surprise) with regard to business transactions like options and security interests.

Transition: Back to Landlord-Tenant & Forward to Servitudes

• Common Ground– Based in Contracts– Shared Rights to Same Piece of Land

• Common Issues– Interpretation of Contract Provisions– Public Policy Limitations on Right to Contract

Tenant’s Right to Transfer

Featuring EAGLES


1. Overview2. “Reasonable” Withholding of Consent3. Should Courts Imply “Reasonableness”?

a. Commercial Tenanciesb. Residential Tenancies

4. Waiver Permissible?

Tenant’s Right to Transfer:Overview

ASSIGNMENT• Transfer of entire remaining lease term.

• Original L and T retain responsibilities to each other.

• Generally speaking L and Assignee now also responsible to each other for original lease terms

Tenant’s Right to Transfer:OverviewSUBLEASE

• Transfer of less than entire remaining lease term.

• Original L and T retain responsibilities to each other.

• Generally speaking L and Sublessee not responsible to each other for original lease terms

Tenant’s Right to Transfer:Overview

Right to Transfer• T allowed to transfer unless lease provision to

contrary.

• Limits read narrowly (e.g., ban on “assignment” won’t prevent subleases).

• Common provision: “No transfer w/o consent of landlord”


1. Overview

2. “Reasonable” Withholding of Landlord’s Consent

3. Should Courts Imply “Reasonableness”?a. Commercial Tenanciesb. Residential Tenancies


Tenant’s Right to Transfer:Definition of of “Reasonable”

• Some leases will say “No transfer without consent of L, which will not be withheld unreasonably.”

• Some states imply “reasonableness” into leases requiring L’s consent to transfer

• What is “reasonable” in these contexts?


• What is “reasonable” in these contexts?

• Funk: look to what a “reasonable man in the L’s position” would do. (Thanks)


LEGITIMATE CONCERNS• Assurances re Rent• Assurances re Use & Care of Premises• Proposed Use:

– Need for Alterations– Legality– Compatible w Other Tenants


NOT LEGITIMATE CONCERNS• Personal Taste, Sensibility or Convenience• Lever to Change Lease Terms (esp. T

expectations re $)• Note Cases: Collateral Economic Advantage

(e.g., Filling Other Units)


HYPOS• Bait & Switch (T wants to transfer to previously

rejected applicant; no financial reason to reject)• Religious or Political Objections


1. Overview2. “Reasonable” Withholding of Consent

3. Should Courts Imply “Reasonableness”?



Tenant’s Right to Transfer:Imply Reasonableness (Comm’l)?

Arguments FOR Implying Reasonableness?


Arguments FOR Implying Reasonableness• Importance of Alienation• General Reqmt. of Good Faith & Fair Dealing• Protects L’s Legitimate Concerns (esp. re $$$)• Prevents L Using Transfer to Extort Better Lease

Terms


Arguments AGAINST Implying Reasonableness?


Arguments Against Implying Reasonableness• Rewriting Contract• Interferes w L’s Control of Own Property• May Lead to Lot of Litigation


1. Overview2. “Reasonable” Withholding of Consent

3. Should Courts Imply “Reasonableness”?

a. Commercial Tenancies

b. Residential Tenancies4. Waiver Permissible?

Tenant’s Right to Transfer:Imply Reasonableness (Residential)?

Why Might We Look at Differently if Residential Lease?

Tenant’s Right to Transfer:Imply Reasonableness (Residential)?

Why Different if Residential Lease?• Maybe L more personally involved More L Control• If L lives on premises More L control• T may have less knowledge and/or bargaining power

Less L Control• More legit. reasons to reject in comm’l setting

More States Imply in Residential Setting


1. Overview2. “Reasonable” Withholding of Consent3. Should Courts Imply “Reasonableness”?



Tenant’s Right to TransferWaiver Permissible?

• Usual Arguments re Waivers (be familiar with)• Restatement says Waiver OK if “freely bargained for.”• Some States say NO.

HABITABILITY & Related Issues

Featuring FALCONS

HABITABILITY & Related Issues

1.Review of History2. Constructive Eviction3. Warranty of Habitability4. Retaliatory Eviction

HABITABILITY & Related Issues: Review of History

1. Common Law: Absent K, No L Duty to Provide Premises in Usable Condition or to Repair

2. Constructive Eviction: Physical Problems Attributable to L Equivalent to Eviction, T Can End Lease

3. Implied Warranty of Habitability: a. Courts Create L Duty to Maintain Minimum

Habitability Stds in Residential Leases (1960s 80s)

b. Version exists today in almost every state via statute or caselaw

HABITABILITY & Related Issues1. Review of History

2.Constructive Eviction & Related Doctrines

3. Warranty of Habitability4. Retaliatory Eviction

HABITABILITY & Related Issues: Constructive Eviction

Implied Covenant of Quiet Enjoyment• Traditionally not really about quiet or

enjoyment in physical sense.

• Protected legal right to possess from acts authorized by L

– e.g., L evicts or excludes prior to end of lease– e.g., L purports to rent or sell to someone

else prior to end of lease

• What other kinds of protections are implied in the Covenant of QE?

HABITABILITY & Related Issues: Constructive Eviction

Three Doctrines• Partial Actual Eviction

• Constructive Eviction

• Partial Constructive Eviction (some states)

HABITABILITY & Related Issues1. Review of History

2. Constructive Eviction

3.Warranty of Habitability4. Retaliatory Eviction

Documents

LOGISTICS No Office Hours Today Test Grades & Answers/Comments Handout Available by Early Next Week Fall Schedule Available Later in the Week –I’ll Talk