PROPERTY A SLIDES

1. PROPERTY A SLIDES 2-14-17 VALENTINE’S DAY (Except in Pakistan) NATIONAL ORGAN DONOR DAY

2. Tuesday February 14 Music to Accompany Tim’s Party:90’s Dance Party Hits Logistics: • This Week Only: DF Session Thursday Shifted to Friday (12:30 in Room G363) Lunch Today: Meet on Brix @ 12:25 Arias * BistritzkyDelancy Finkel * Roman

3. JMB: Access & Permissible Regulations (Cont’d)OLYMPIC: DQs 1.26 EEL GLACIER

4. JMB, Schmid& Scope of Right to ExcludeRECAP of DQ1.26 (a) & (b) • (a) What Malls Covered by JMB Rules • Almost Certainly All “Large” Malls • For Smaller Malls, Under SchmidCould Check: • Extent of Invitation • Compatibility Issues (Level of Likely Disruption; Appropriate Places to Protest, etc.) • (b):Do all political/protest groups have to be treated alike? • Common Sense: Can exclude if signif. problems during past visits. • Basis in 1st Amdt suggests treating all groups/messages the same. • Possible Special Issue We’ll Address in a Few Minutes

5. Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude DQ1.26(c) (Olympic): Under JMB, what kinds of limits or requirements can the mall impose on protestors? • Possible Examples? • [Then We’ll Look at Language from Case]

6. JMB, Schmid& Scope of Right to ExcludeDQ1.26(c) (Olympic): Under JMB, what kinds of limits or requirements can the mall impose on protestors? Possible Examples: • Must stay in designated area. • Limit on # of protestors per group. • Limits re noise level, politeness, etc. • Limits on “adult content” of [at least] photos in leaflets/on signs • Must clean up leaflets left around • Reasonable deposit for [plausible/provable] clean-up/security costs.

7. Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude DQ1.26(c) (Olympic): Under Language of JMB, what kinds of limits or requirements can the mall impose on protestors? Most important phrase likely is … Malls have “full power to adopt … time, place & manner [restrictions] that will assure … that … leafletting does not interfere with the shopping center’s business while … preserving the effectiveness of plaintiff’s exercise of their constitutional right.” (P91 right before §C) Time, Place & Manner [“TPM”] Restrictions = Standard 1stAmdmt Category (in contrast to Subject Matter or Viewpoint Restrictions)

8. Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude DQ1.26(c) (Olympic): Under JMB, what kinds of limits or requirements can the mall impose on protestors? Most important phrase likely is … • (P91): Malls have “full power to adopt … time, place & manner [restrictions] that will assure … that … • leafletting does not interfere with the shopping center’s business while • preserving the effectiveness of P’s exercise of their constitutional right.” • Incorporates/balances interests of both sides. • Other Evidence from JMB re Allowable Limits?

9. JMB, Schmid& Scope of Right to ExcludeDQ1.26(c): Permissible limits or requirements? • Other Evidence from JMB? • General standards • P86 “reasonable conditions” • P89 describing Schmid: “reasonable regulations” • P90 quoting Schmid: “suitable restrictions” • P86: case seems to be limited to passing out leaflets & related activity; suggests, e.g., might be OK to ban harassment or loud noises • P87: conditions noted that presumably go too far • can’t approach shoppers  • insurance coverage FOR $$1m+ 

10. Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude DQ1.26(c): Permissible limits or requirements? • Additional Info from Green Party (NJ 2000) (Note 5@P94-95) • General standards • P95: [Again] Balance rights of both sides in evaluating regulations • P95: Fairly allocated fee OK if “objectively related” to evidence of real costs stemming from leafletting [and presumably other speech activity] • Conditions rejected  • insurance coverage for $$1million  • “requirement of ‘hold harmless clause’”  Means? • Limit on access to a “few days” per year 

11. Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude DQ1.26(b): Do all protest groups have to be treated alike? • Common Sense: Can exclude if significant problems during past visits. • Basis in 1stAmdtsuggests treating all groups/messages the same. • Hard Q not addressed in JMB or Pruneyard: • Can owners treat protestors differently if targeting particular stores in mall? • Arguments for Different Treatment: Front 3 Rows • Arguments for No Different Treatment: Back 3 Rows & “Balcony”

12. Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude • Hard Q not addressed in JMB or Pruneyard: • Can owners treat protestors differently if targeting particular stores? • (Issue Arises in Rev. Prob. 1J & 1M) • SeeFashion Valley Mall v. NLRB, 172 P.3d 742 (Cal. 2007) • Forbids mall from excluding peaceful protestors because they are requesting that shoppers boycott a particular mall tenant. • No specific info on whether mall is allowed to place special restrictions on where protestors can operate in relation to targeted business, so room for discussion on what limits might be reasonable.

13. Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude Qs on Permissible Requirements or JMB?

14. Chapter 2. Leased But Not Last: Selected Issues in Landlord/Tenant Law • The Importance of Context: (Brief Intro Lecture ) • The Landlord’s Right to Exclude (& Legitimate Interests of Tenants) • Eviction Under the Florida Statutes • Statutory Anti-Discrimination Law • The Right to Transfer • Habitability & Related Issues

15. Importance of Factual Context:Legitimate Interests of TNTs/LDLDs Types of Problems We’ll Address Require Thought re Parties’ Interests • Interpretation of Landlord-Tenant Statutes • Interpretation of Lease/Contract Provisions • Legal Limits on Ability to Lease/Contract (Default Rules/Non-Waivable Rights)

16. Importance of Factual Context:Legitimate Interests of TNTs/LDLDs • Types of Problems We’ll Address All Require Thought re Parties’ Interests • Nature & Strength of Interests Can Vary with Different Types of Leases/Parties; Think About How/Whether Rules Should Chasnge with Context, Especially • Residential v. Commercial [v. Agricultural v. Industrial] • Sophisticated v. Unsophisticated Parties (Relative Bargaining Power)

17. Importance of Factual Context:Legitimate Interests of TNTs/LDLDs • Types of Problems We’ll Address All Require Thought re Parties’ Interests • Interests Can Vary with Different Types of Leases/Parties; Should Rules • 1st Part of Chapter Addresses Limits on Landlord’s Rtto Exclude (LRE) • You’ll Recognize Some Ideas from Unit I • LRE at Start of Tenancy Limited by Anti-Discrimination Statutes (Arising from Public Invitation & Important Public Interest like JMB) • LRE AfterStart of Lease to Evict or to Control Transfers by Tenant Limited by Tenant’s Contract (& Property) Rights (Reminiscent of Shack)

18. Chapter 2. Leased But Not Last: Selected Issues in Landlord/Tenant Law • The Importance of Context: (Brief Intro Lecture Tomorrow) • The Landlord’s Right to Exclude (& Legitimate Interests of Tenants) • Eviction Under the Florida Statutes • Statutory Anti-Discrimination Law • The Right to Transfer • Habitability & Related Issues

19. Eviction Under FL Statute [For Problem Other Than Failure to Pay Rent] • 83.56. Termination of rental agreement … (2) If the tenant materially fails to comply with §83.52 or material provisions of the rental agreement, other than a failure to pay rent, or reasonable rules or regulations … [L FIRST must show • material violation of either • the part of the statute detailing tenant duties -OR- • The lease or the L’s reasonable rules & regulations

20. Eviction Under FL Statute [For Problem Other Than Failure to Pay Rent] • 83.56. Termination of rental agreement … (2) [Once L shows material violation of statute, lease, or rules, need to determine which of two available options applies]: (a) [Terminate immediately] If such noncompliance is of a nature that the T should not be given an opportunity to cure it or if the noncompliance constitutes a subsequent or continuing noncompliance within 12 months of a written warning by the L of a similar violation [such as list of examples] (b) [Give Seven Days to Cure & Terminate if Not Cured or Repeated w/in one Year] If such noncompliance is of a nature that the T should be given an opportunity to cure it, [such as list of examples]

21. Choice under 83.56(2) of (a) or (b) Example of Common Statutory Problem • Statute Creates Two Non-exclusive Categories; Into Which Category Does Relevant Conduct Fit? • Common Types of Argument for This Kind of Issue: • Literal: Withinlanguageof either (a) or (b)? • Comparison : More like terms listed in (a) or in (b)? [Characterization issue.] (III) Policy Should this behavior (without more ) be enuf for eviction [Think about relevant interests of both Ldld & Tnt.]

22. Review Problem 2A (Tim’s Party)SEQUOIA (for L): SubQs 1, 3, 6ACADIA (for T): SubQs 2, 4, 7 ACADIA SUNRISE SEQUOIAS

23. Intro to Review Problem 2A: Tim’s Party • Tim = Tnt/College Student (No Prior Violations of Lease or Statute) • Holds Big Party at Apt.  Noise; Police Arrest 2 Friends • Can Linda (Landlord) Evict Tim for the Party? • First, L must show material violation of statute, lease, or rules • EASY Q: Told to Assume Conduct Violates 83.52(7)

24. Intro to Review Problem 2A: Tim’s Party • Tim = Tnt/College Student (No Prior Violations of Lease or Statute) • Holds Big Party at Apt.  Noise; Police Arrest 2 Friends • Can Linda (Landlord) Evict Tim for the Party? (= Statutory Violation) • Then, to Evict Immediately, L Must Show T’s Conduct Falls Under (2)(a); • T Will Argue It Falls Under (2)(b), So He Just Gets a Warning Notice (Nothing to Cure Here). • Both Parties Will Utilize Three Types of Arguments Noted Yesterday (Literal. Comparative, Policy)

25. Review Problem 2A • Literal: Within language of either (a) or (b)? • Examples … that the TNT should not be given an opportunity to cure include, but are not limited to, destruction, damage, or misuse of the LDLD's or other TNTs' property by intentional act or a subsequent or continued unreasonable disturbance. • Examples [that TNT should be given opportunity to cure] include, but are not limited to, activities in contravention of the lease or this act such as 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. Here, Easy Q not within language of either.

26. Rev. Prob. 2A: Qs 1 (Sequoia) & 2 (Acadia) (II) Comparison: More like items listed in (a) or (b)? Characterization Exercise • … destruction, damage, or misuse of the LDLD's or other TNTs' property by intentional act or a subsequent or continued unreasonable disturbance. • … 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.

27. Rev. Prob. 2A: Qs 1 (Sequoia) & 2 (Acadia) (II) Comparison: More like items listed in (a) or (b)? Characterization Exercise: Possibilities Include… • … destruction, damage, or misuse of the LDLD's or other TNTs' property by intentional act or a subsequent or continued unreasonable disturbance. • … 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. (a) = Harm Serious & Intentional (a) = Immediate Physical Harm (b) = More Easily Fixed

28. Rev. Prob. 2A: Qs 3 (Sequoia) & 4 (Acadia) (III) Policy: Should this behavior be sufficient for a landlord to evict without more? (Think about relevant interests of both Ldlds& Tnts) EXAMPLES?

29. Rev. Prob. 2A: Qs 3 (Sequoia) & 4 (Acadia) (III) Policy: Should this behavior be sufficient for a landlord to evict without more? • General Policy Concerns: What’s at Stake • TNT in Q: Housing (Shelter; Psychic Ties; Convenience); Fairness • LDLD & Other TNTs: Safety; Quiet; Preservation of Building & Personal Property; Financial Interests

30. Rev. Prob. 2A: Qs 3 (Sequoia) & 4 (Acadia) (III) Policy: Should this behavior be sufficient for a landlord to evict without more? • General Policy Concerns: What’s at Stake • TNT in Q: Housing; Fairness • LDLD & Other TNTs: Safety; Quiet; Preservation of Property; $$$ • Note Overlap w Other Types of Arguments : Policy Concerns Can Explain: • Why Literal Terms Should be Read to Include Conduct (or Not) • Significance of Comparisons

31. Review Problem 2A:SKILLS & EXAM TECHNIQUE I have given this problem both as a short exam problem and as a written assignment in the multi-part format I gave you. • I’ll Post Both Sets of Best Student Answers. • For both forms, two other possible tasks: • Strongest Position (Q5) • Additional Facts (Q6&7)

32. Review Problem 2A: Q5SKILLS & EXAM TECHNIQUE Strongest Argument (Q5): Helpful on Exams to Conclude a Discussion by Briefly Arguing Which Overall Position is Strongest • To Substantially Upgrade Your Answers • Do Overall for Short Problems (XQ2) • Do for Major Contested Issues in Issue-Spotters (XQ4) Today Leave for You

33. Review Problem 2A: Qs 6 & 7SKILLS & EXAM TECHNIQUE Additional Useful Facts (Qs 6 & 7): Often Helpful on Exams to Identify Unstated Facts That Might Affect the Outcome IF • They Aren’t Inconsistent with Stated Facts; • They Don’t Drastically Change the Problem. Here, e.g., • Don’t add conduct that itself leads to eviction (damage; murder) • Don’t add facts that completely eliminate T responsibility (tied up in closet whole time; extreme duress) • AND You Briefly Clarify Why They’d Be Relevant

34. Review Problem 2A: Qs 6 (Sequoia) & 7 (Acadia) PRELIMINARY Q: WHY IS “SPECULATIVE” A DIRTY WORD? Additional Useful Facts (and Why) (one fact per person please!)

35. FloridaStatutory Question Like 2A (Prepare Literal; Comparison; Policy) • Rev Prob 2B:DF Next Week • Rev Prob 2C: For You (Can Submit as Spring Break Sample Answer) • Part of Tempest Problem: Week After Next • Part of 2016 XQIV