Tenant Remedies for Undesirable Neighbors: Knudsen Case Analysis

1. PROPERTY D SLIDES 4-14-16 National Pecan Day National Dolphin Day How to Celebrate the Day

2. Thursday April 14: Music to Accompany KnudsenAmy Winehouse, Back to Black (2007) featuring “You Know I’m No Good” Coming Attractions INFO MEMOS POSTED ON COURSE PAGE IM#4: Adverse Possession IM#5: Easements Today: Course Evaluations 9:05 Tomorrow:Extendo-Class 7:55-9:45 am Saturday: Optional Sample Exam Answer Due @ Noon Tuesday: Review Session Here 7:55-9:20 (I Will Focus on Exam Technique)

3. SEQUOIA: Knudsen, Note 1 & DQ6.08 SEQUOIAS

4. Knudsen & Tenant Remedies for Undesirable Neighbors (SEQUOIA) Background to Knudsen: N.Y. Law • “Registrable Offenses” = List of Crimes that involve sexual violence and/or sexual activity with minors. • “Sex Offender” = Person convicted of Registrable Offense • When Sex Offender released to community after conviction, court holds a hearing to determine risk level (likelihood of repeating same or similar offense). The court may assign one of the following three risk levels: • Level 1 (low risk of repeat offense), or • Level 2 (moderate risk of repeat offense), or • Level 3 (high risk of repeat offense and a threat to public safety exists).

5. Knudsen & Tenant Remedies for Undesirable Neighbors (SEQUOIA) Background to Knudsen: N.Y. Law • When Sex Offender gets a new residence, state provides notification online and (I think) directly to neighbors. • Level of detail in the notification depends on Risk Level. For Level 3, notification includes specific address, picture & list of relevant convictions. • As I understand it, Landlord effectively can’t prevent renting to Sex Offender because • Notification triggered by Sex Offender moving in; and • Landlord can’t evict just b/c Sex Offender

6. Knudsen & Tenant Remedies for Undesirable Neighbors (SEQUOIA) • Possible Legal Theories • Fairness/Public Policy • Scope of the Remedy • Who can invoke? • Against whom can it be invoked?

7. Knudsen & Tenant Remedies for Undesirable Neighbors (SEQUOIA) (1) Legal Theory for Tenant Remedy • Court doesn’t say that Landlord breached lease by renting to Sex Offender • Instead, Problem is Refusing to Let TNT Terminate Lease (Without Penalty) . Court Says: • Remaining would be Inconsistent with Covenant of Quiet Enjoyment • Refusing Request for Termination Unconscionable/Villation of Covenant of Good Faith & Fair Dealing • Why not violation of Implied Warranty of Habitability? • Could Court have used Constructive Eviction Theory?

8. Knudsen & Tenant Remedies for Undesirable Neighbors (SEQUOIA) (2) Fairness/Public Policy • Court notes on P628 Public Policy to prevent repeat sexual offenses by notifying potential victims (particularly children). • How do we know that NY State has not chosen to make this concern its first priority in all circumstances? • Assuming the Landlord could not reject the Sex Offender as a tenant, is it fair to allow the Tenant to terminate the lease? • Why should tenants be able to break their contractual agreements in these circumstances where, if the same building was a condominium, neighbors would have no remedy except sale?

9. Knudsen & Tenant Remedies for Undesirable Neighbors (SEQUOIA) (3) Scope of the Remedy (Very Testable!) • Could a tenant invoke this remedy if … • No children? Male children if victims all female? • Resided on a Different Floor? • What Other Types of “Undesirable” Neighbors Might Be Covered by the Reasoning in Knudsen?

10. SEQUOIA DQ6.07 SEQUOIAS

11. Possible Extensions of IWH: Policy QsDQ6.07 (SEQUOIA) In state where IWH and Key Remedies are entirely products of common law development (no statutes): Should state courts extend IWH & Remedies to Cover [Small] Commercial Tenants? • Similarities & Differences v. Residential Tenants? • Matter if Renting Stand-Alone Building or Unit in Multi-Tenant Building? Done in a Few States; See N.10 P624-25

12. Possible Extensions of IWH: Policy QsDQ6.07 (SEQUOIA) In state where IWH and Key Remedies are entirely products of common law development (no statutes). Should state courts extend IWH & Remedies to Cover [Small] Commercial Tenants? Part of Review Problem 6H 2014 Opinion/Dissent Q (Comments/Models Online)

13. EVERGLADES & Tempest Q1: Landlord Duties re Plumbing & Roaches EGRET IN MANGROVE SWAMP

14. EVERGLADES & Tempest Q1: Landlord Duties re Plumbing & Roaches? Relevant Issues? • Plumbing Problems: Ferdiediscovered that the plumbing in the building often didn't work. Several times a month he couldn't get water and Mrs. Gonzalo reported that other tenants experienced the same difficulties. • Roach Problems: [T]he roaches in the kitchen were so big that [F’s Doberman] refused to go in to that room.

15. EVERGLADES & Tempest Q1: Landlord Duties re Plumbing & Roaches? Tenant Statutory Duties: Roaches 83.52. The tenant at all times during the tenancy shall: • (1) Comply with all obligations imposed upon tenants by applicable provisions of building, housing, and health codes. • (2) Keep that part of the premises which he or she occupies and uses clean and sanitary. • (3) Remove from the tenant's dwelling unit all garbage in a clean and sanitary manner. Let’s Assume No Evidence of (2) & (3) (Roaches in Florida Appear Regardless of Housekeeping)

16. EVERGLADES & Tempest Q1: Landlord Duties re Plumbing & Roaches? Tenant Statutory Duties: Plumbing 83.52. The tenant at all times during the tenancy shall: • (1) Comply with all obligations imposed upon tenants by applicable provisions of building, housing, and health codes. • (4) Keep all plumbing fixtures in the dwelling unit or used by the tenant clean and sanitary and in repair. • (5) Use and operate in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air‑conditioning and other facilities and appliances, including elevators. Why Are (4) & (5) Unlikely to be Relevant Here?

17. EVERGLADES & Tempest Q1: Landlord Duties re Plumbing & Roaches? Tenant Statutory Duties 83.52. The tenant at all times during the tenancy shall: • (1) Comply with all obligations imposed upon tenants by applicable provisions of building, housing, and health codes. Statutory Duties Likely to Turn on Housing Code Lease Provision Seems to Create Additional Duties

18. EVERGLADES & Tempest Q1: Landlord Duties re Plumbing & Roaches? Lease Provision Says Plumbing & Roaches = Tenant Responsibility • (4)(f) Tenant shall have sole responsibility to keep the unit in good repair. Tenant hereby accepts the unit as is, and agrees that Landlord shall have no responsibility to make any repairs of any kind to any part of the building. Extermination of vermin shall be tenant's sole responsibility. Is this permitted under 83.51?

19. EVERGLADES & Tempest Q1: Landlord Duties re Plumbing & Roaches? 83.51. Landlord's obligation to maintain premises. • (1) The landlord at all times during the tenancy shall: • (a) Comply with the requirements of applicable building, housing, and health codes; or • (b) [Rule if no Housing Code] • The landlord's obligations under this subsection [=83.51(1)] may be altered or modified in writing with respect to a single‑family home or duplex.

20. EVERGLADES & Tempest Q1: Landlord Duties re Plumbing & Roaches? 83.51. Landlord's obligation to maintain premises. • (1) The landlord at all times during the tenancy shall: • (a) Comply with the requirements of applicable building, housing, and health codes; or • (b) [Rule if no Housing Code] • The landlord's obligations under this subsection [=83.51(1)] may be altered or modified in writing with respect to a single‑family home or duplex.

21. EVERGLADES & Tempest Q1: Landlord Duties re Plumbing & Roaches? 83.51. Landlord's obligation to maintain premises. • (2) (a) Unless otherwise agreed in writing, in addition to the requirements of subsection (1), the landlord of a dwelling unit other than a single‑family home or duplex shall, at all times during the tenancy, make reasonable provisions for: • 1. The extermination of rats, mice, roaches, ants, wood‑destroying organisms, and bedbugs.

22. EVERGLADES & Tempest Q1: Landlord Duties re Plumbing & Roaches? Both Tenant’s Statutory Duties and Landlord’s Ability to Waive Responsibility Turn on Provisions of Housing Code Relevant Housing Code Provisions: Roaches?

23. EVERGLADES & Tempest Q1: Landlord Duties re Plumbing & Roaches? Relevant Housing Code Provisions: Roaches? 17-27 (7) … Every occupant of a dwelling unit in a building containing more than one (1) dwelling unit shall be responsible for such 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. Unlikely but Possible in Multi-Unit Building

24. EVERGLADES & Tempest Q1: Landlord Duties re Plumbing & Roaches? Relevant Housing Code Provisions: Roaches? 17-25 (2) Every dwelling unit shall be reasonably weathertight, watertight and rodentproof. RODENT (MAMMAL) ROACH (INSECT)

25. EVERGLADES & Tempest Q1: Landlord Duties re Plumbing & Roaches? Both Tenant’s Statutory Duties and Landlord’s Ability to Waive Responsibility Turn on Provisions of Housing Code Relevant Housing Code Provisions: Plumbing?

26. EVERGLADES & Tempest Q1: Landlord Duties re Plumbing & Roaches? Relevant Housing Code Provisions: Plumbing? • 17-25 (6) Every plumbing fixture, water pipe, waste pipe and drain shall be maintained in good sanitary working condition, free from defects, leaks and obstructions. • 17-25 (8) Every supplied facility, piece of equipment, or utility required in this code shall be maintained in a safe and satisfactory working condition. … • ALSO 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…. Sink, lavatory, tub or shower shall be supplied with adequate hot and cold water.

27. OLYMPIC& Tempest Q2: Habitability Violations as Defense to Non-Payment of Rent EEL GLACIER

28. OLYMPIC& Tempest Q2: Habitability Violations as Defense to Non-Payment of Rent Assume the Landlord Violated Her Duties Under 83.51(1) with Regard to Either Plumbing or Roaches. What Must Tenant Do Under 83.60 to Raise These Violations as a Defense to the Action for Non-Payment of Rent?

29. OLYMPIC& Tempest Q2: Habitability Violations as Defense to Non-Payment of Rent 83.60 Requirements to Raise 83.51(1) Violations as a Defense to an Action for Non-Payment of Rent: (2) … the tenant shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due. Problem Has No Info on This. (1) … 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. Problems with Notice Given?

30. OLYMPIC& Tempest Q2: Habitability Violations as Defense to Non-Payment of Rent Problems with Notice Given? “specifying the noncompliance” = Roach + “Please Exterminate” ? “indicating the intention of the tenant not to pay rent by reason thereof.” Not Done. Tenant might argue shouldn’t have to comply with literal notice requirements where clear that landlord was aware of problems, but given specificity in statute, court probably rejects this. (Good-Bye to Olympics)