Landlord/Tenant Law: Selection of Tenants and Anti-Discrimination Laws

1. PROPERTY A SLIDES 2-20-17 PRESIDENT’S DAY NATIONAL CHERRY PIE DAY

2. Music to Accompany Funk: Rick James, Street Songs (1981)featuring “Below the Funk” and “Superfreak” Now on Course Page • Chapter 3 Supplement • Syllabus (Chapters 1-3) • Assignment Sheet (thru 3/9) Lunch Today Meet on Bricks @ 11:55 Gray * Hammond * Khanna Pouser * Sirenord Thurman-Baldwin * Traibel

3. MONdayPop Culture Moment The Most Performed Waltz in American Popular Music

4. CrimPro & Property Exam Dates Swapped! NEW EXAM DATES CrimPro Exam = Fri Apr 28 (p.m.) Property Exam = Wed May 3 (a.m.) Our Revised End-of-Semester Schedule • Fri Apr 21: Make-Up Class • Mon Apr 24: Final Class • Tue Apr 25: Not Meeting • Mon May 1: Review Session (Time/Place TBA

5. Previously in Property A Finished Work on Chapter 1 JMB & First Amendment Access to Malls Finished DQs Review Problems 1L & 1M Intro to XQ4: Issue-Spotter Intro to Chapter 2 Eviction Under the Florida Statutes Review Problem 2A

6. Chapter 2. Leased But Not Last: Selected Issues in Landlord/Tenant Law • The Importance of Context • Ldld’sRight to Exclude (& Legitimate Interests of Tnts) • Eviction Under the Florida Statutes • Ldld’s Selection of Tnts: Statutory Anti-Discrimination Law & TheRight to Transfer • Overview • Sorenson & Proof of Discriminatory Intent • Funk & “Reasonable” Refusals to Allow Transfer • Review Problems • Habitability & Related Issues

7. LDLD SELECTION OF TNTs: OVERVIEW L Ability to Select Ts = Significant Aspect of L’s Property Rights • Can See as Part of Right to Exclude • Can See as Right to Use Land in Way that L Sees as Most Beneficial (Economically & Otherwise)

8. LDLD SELECTION OF TNTs: OVERVIEW • L Ability to Select Ts = Significant Aspect of Property Rights • Current Limits on L Selection Designed to Further Other Important Interests • Anti-Discrimination Law: Inclusion & Access • T’s Right to Transfer • Alienability • T’s Economic & Fairness Interests

9. LDLD SELECTION OF TNTs: OVERVIEW Two Relevant Time Frames • At Start of New Lease • Common Law: L Had Complete Discretion • Today Ltd by Anti-Discrimination Statutes (Federal, State, Local) • During Lease: If T Wishes to Transfer Some or All Rights & Landlord Disapproves of Transferee • Default Rule: Tenant Can Transfer Absent Term in Lease Limiting • Common Law: Lease Terms Determine Landlord’s Right to Block • Today: Landlord’s Right to Block Transfer Also Limited by • Anti-Discrimination Statutes (Federal, State, Local) • Qs re “Reasonableness” of Withholding Consent (State Law)

10. ANTI-DISCRIMINATION STATUTES: OVERVIEW • Federal, State, Local Statutes • Ban Particular Types of Decisions/Conduct if Made Because of Listed Protected Characteristics (Focus on Reasons for Decision/Conduct) • State Can Protect Tenants More than Feds Do • Addressing Additional Protected Characteristics • Addressing Additional Types of Decisions/Conduct • E.g., Wisconsin (not Florida) • Local Gov’ts Can Protect Tenants More Than Fed/States Do • E.g., Miami Beach

11. ANTI-DISCRIMINATION STATUTES: OVERVIEW • Federal, State, Local Statutes • We Will Work Primarily with Federal Statutes • Civil Rights Act of 1866 • Covers Land Transactions & Contracts (inclComm’l & Res. Leases) • Prohibits Discrimination on the Basis of Race (Broadly Defined) • Federal Fair Housing Act • Covers a Variety of Conduct Related to the Provision of Housing • Prohibits Discrimination on the Basis of Race, Color, Religion, Sex, Familial Status, National Origin, and “Handicap”. • State/Local Statutes Relevant Only for Lawyering Qs

12. ANTI-DISCRIMINATION STATUTES: OVERVIEW • Federal, State, Local Statutes • We Will Work Primarily with Federal Statutes • Civil Rights Act of 1866 • Federal Fair Housing Act • Proof/Evidence Issues the Same Under Both • Details on Coverage & What You Are Expected to Know in Write-Up of DQs 2.01-2.06 in Info Memo #3 Qs on Write-Up or Anti-Discrimination Statutes?

13. Chapter 2. Leased But Not Last: Selected Issues in Landlord/Tenant Law • The Importance of Context • Ldld’sRight to Exclude (& Legitimate Interests of Tnts) • Eviction Under the Florida Statutes • Ldld’s Selection of Tnts: Statutory Anti-Discrimination Law & TheRight to Transfer • Overview • Sorenson & Proof of Discriminatory Intent • Funk & “Reasonable” Refusals to Allow Transfer • Review Problems • Habitability & Related Issues

14. Proof of Discriminatory Intent Under Anti-Discrimination Statutes • Most Testable Issue re Anti-Discrimination Statutes • Why Ldld Made Decision to Exclude Applicant or Transferee • Generally, My Problem will Suggest At Least One Each of • Discriminatory Reasons (Made on Basis of Protected Characteristic) • Non-Discriminatory or “Legitimate” Reasons (Anything Else)

15. Proof of Discriminatory Intent Under Anti-Discrimination Statutes • In Short Problem/ or Issue-Spotter, I’ll Give Detailed Info • You’ll Need to Lay Out & Explain • Evidence Supporting Discriminatory Reason • Evidence Supporting Non-Discriminatory Reason • Then Discuss Significance of All Evidence Together • We will use test from Sorenson that statute is violated if discriminatory reason is “one significant factor” in Ldld’s decision (although actual current rules more complex) • E.g., Review Problems 2D & 2L(part b)

16. Proof of Discriminatory Intent Under Anti-Discrimination Statutes • In Lawyering Q, I’ll Give Some Info That Suggests Serious Discrimination Issue • You’ll Need to Do Factual Investigation to Find • Evidence Supporting Possible Discriminatory Reason(s) • Evidence Supporting Possible Non-Discriminatory Reasons • Useful Also to to Identify Possible Helpful Legal Research on Provisions of Relevant State & Local Statutes (Based on Info in Write-Up of DQs2.01-2.06) • E.g., Review Problem 2K (part c)

17. Proof of Discriminatory Intent Under Anti-Discrimination Statutes To Help identify Evidence That Might Be Relevant: • Discussion of Sorenson • Note on Evidence on S40-42: Self-ExplanatoryExcept … • S40: Desire of management to seeapplicants (not just rely on employees to do face-to-face contact) • S40: Treatment of Testers. • S41: Reputation of landlord/housing provider among tenants/in community (re willingness to do business with particular group) • S41-42: “Consistency”/”Corroboration” = Work Both Ways Questions?

18. OLYMPIC: Sorenson & DQ2.07-2.09 EEL GLACIER

19. Sorenson & DQ2.07 (OLYMPIC) • Ps’ Claim: D evicted Ps b/c of race of visitors • D’s Claim: D evicted Ps b/c of history of problems + preparing for party + sight of disfavored ex-tenant What evidence supported Ps’ Claim?

20. Sorenson & DQ2.07 (OLYMPIC) Evidence supporting Ps’ Claim (Decision b/c of Race): • Timing: Eviction right after D saw Afr-Am women in apt. • D saying “Yes” when asked if race was reason for eviction • N.4: D told “anxious” neighborhe didn’t intend to rent to 2 “black girls” • D admitted he preferred no Afr-Ams as tenants • No Afr-Am residents in D’s Complex What evidence supported D’s claim?

21. Sorenson & DQ2.07 (OLYMPIC) Evidence supporting D’s Claim (Legitimate Reasons): • Ps’ Prior issues (parties, noise, complaints, harm to apt) • Timing: D testifies fury re party & seeing former tenant • D says “Yes” not true but intended to annoy P • Explanation of D statement re no intent to rent: Hadn’t applied • Explanation of no Afr-Am residents: No Afr-Ams had applied • Participant in Civic Race Relations Project Whose Story Seems More Convincing?

22. Sorenson & DQ2.07 (OLYMPIC) “Neither we nor our district courts sit to pass upon the taste of litigants or the attractiveness of their positions. Our commitment is to truth and process, with emphasis on the former below and the latter here. A careful inquiry into the process observed in the district court has not convinced us that the truth was not served.” (Last Para. S39) Assuming [this means that the] court found the D’s story unconvincing…, why didn’t it reverse the decision? • Have to Defer to Jury Decision on Facts, Particularly Credibility of Witnesses Why Should Appellate Court Defer to Jury’s [implicit] Findings of Fact if Appellate Judges Disagree?

23. Sorenson & DQ2.07 (OLYMPIC) Why Should Appellate Court Defer to [implicit] Findings of Fact by Jury if Court Disagrees? • Visual Observation of Witnesses and of Physical Evidence • Hearing Testimony Sheaskedmetotakehertothedance.

24. Sorenson & DQ2.08 (OLYMPIC) 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 [for D]…” • 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 referencing race to induce moving violate statute even if no racial animus

25. Sorenson & DQ2.08 (OLYMPIC) P’s Primary Claim: Court must find for P as a matter of law b/c D admitted to P that he discriminated. • P relies on Pelzer and Mintzes, but court distinguishes: • In those cases, statements in Q themselves violated FHA • Here, claimed violation is eviction (with bad intent) • Statement here is evidence of intent, not violation itself • D entitled to bring in evidence to rebut Questions on This Point?

26. Sorenson & DQ2.09 (OLYMPIC) • D Atty Asked Q re Marijuana Use (Violating Order) • Why might this harm P’s chances for fair trial (in ~1976)? • Purpose of Footnote 14 (“lame explanations”) • D Atty Used Peremptory Challenges to Remove Afr-Ams from Jury • Why might this harm P’s chances for fair trial? • Batson v. Kentucky & the Power of Change Questions?

27. Tomorrow: REVIEW PROBLEM 2DACADIA for Benjamin; BADLANDS for Rebecca • Possible Discriminatory Reasons for Rejection • Religion (Not Jewish Enough) • Inter-Racial or Inter-Faith Relationship • Israeli • ACADIA: Possible Non-Discriminatory Reasons? • BOTH: Significance of SpecificFacts? • BADLANDS: Other Evidence Supporting Discriminatory Reasons? • ACADIA: Other Evidence Supporting Non-Discriminatory Reasons? • BOTH: Stronger Position Overall?Because?

28. Chapter 2. Leased But Not Last: Selected Issues in Landlord/Tenant Law • The Importance of Context • Ldld’sRight to Exclude (& Legitimate Interests of Tnts) • Eviction Under the Florida Statutes • Ldld’s Selection of Tnts :Statutory Anti-Discrimination Law & TheRight to Transfer • Overview • Sorenson & Proof of Discriminatory Intent • Funk & “Reasonable” Refusals to Allow Transfer • Review Problems • Habitability & Related Issues

29. TENANT’S RIGHT TO TRANSFER: ASSIGNMENT v. SUBLEASE Two Types of Transfers • Assignment: • T Transfers Entire Lease Term to “Assignee” • T Still Responsible to L, BUT L and Assignee Also Generally Directly Responsible to Each Other for Lease Terms • Sublease: • T Transfers Less Than Entire Lease Term to “Sublessee” • T Still Responsible to L; Sublessee and L Generally NOT Directly Responsible to Each Other for Lease Terms

30. TENANT’S RIGHT TO TRANSFER: BACKGROUND RULES • T Right to Transfer Unless Lease Says Otherwise • Limits in Lease Read Narrowly: “No Subleases” = Assignments Allowed (and vice-versa) • Part of Pro-Alienation Policy Favoring Easy Transfer of Land (We’ll See Again in Later Chapters). Easy Transfer Helpful Where … • E.g., Tenant in Long-Term Lease Transferred Across Country • E.g., 3d Party Business Can Make Much More $$$ Off Land than Present Tenant

31. TENANT’S RIGHT TO TRANSFER: REASONABLENESS ISSUES Common provision: “No transfer w/o consent of landlord” • Meaning of “Reasonable” Withholding of Consent • Should Courts Imply “Reasonableness”? • Commercial Tenancies • Residential Tenancies • If We Imply Reasonableness, Should Tenant Be Able to Waive?

32. TENANT’S RIGHT TO TRANSFER: MEANING 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?

33. TENANT’S RIGHT TO TRANSFER: MEANING OF “REASONABLE” What is “reasonable” in these contexts? • Funk: look to what a “reasonable man in the L’s position” would do. (Thanks)

34. TENANT’S RIGHT TO TRANSFER: MEANING OF “REASONABLE” LEGITIMATE CONCERNS • Assurances re Rent • Assurances re Use & Care of Premises • Proposed Use: • Need for Alterations • Legality • Compatible w Other Tenants

35. TENANT’S RIGHT TO TRANSFER: MEANING OF “REASONABLE” NOT LEGITIMATE CONCERNS • Personal Taste, Sensibility or Convenience (Funk) • Lever to Change Lease Terms (esp. T expectations re $) (Funk) • Other Cases: Collateral Economic Advantage (e.g., Filling Other Units) • Note: In Appropriate Context You Can Argue That Cases We’ve Read Are Wrong