Defn of property; Justifications

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Restriction was there when person moved in? (Nahrstedt)

Is it reasonable (looser standard b/c the person knew about it and taken into account

in the purchase price)?

Consider: Did they have little choice? – (the restriction is everywhere)

Restriction made since they got there?

Higher standard of reasonableness when challenged (Nahrstedt)

Think – reasonableness of restriction in this situation vs. consistency and certainty in rules


Did landlord use self help?

  • Was it peaceable/non-confrontational? Has to be - (Berg v. Wiley)

  • Is there a fair, quick forum? If so, no self help (summary proceeding in 7-10 days (Berg v. Wiley)

 Were these terms avoided by K? (so that LL

can use self help)Is that valid?

  1. Is “no self help” a mandatory term?

Yes – K provision invalid

No (default term) – valid

Did the LL default somehow?

 Tenant can: 1. Stay and not pay

2. leave early and not pay

3. not leave at the end

 Was there a wrongful eviction?

Then tenant can leave and not pay any more

 Was there a constructive eviction? (Reste Realty v. Cooper)

Was there substantial interference with the tenant’s rights?

like a wrongful eviction – can repudiate and not pay


 Was there a breach of Implied W. of Habitability? (Hilder)

Commercial property – generally no implied warranty

Owner-occupied single family – sometimes not

(traditionally LL had no duty)


  1. uncontroversial – tenant claims damages (way it should be – way it is)

  2. controversial – tenant can stay and set-off the rent by value of the breach

OR stay, make repairs and deduct the cost

Sometimes – have to put the withheld rent in escrow Then how can you make the repairs?

THEN – burden is on LL to sue for back rent
 In a summary proceeding for back rent:

  • some places, tenant couldn’t use LL misconduct as a defense

  • constructive eviction can be used as a defense

  • Breach of implied WofH – most places can be used

Effects of mandatory terms (rent control and WofH) (policy)

  1. (-)

  1. Costs will be passed on to tenants – White

  2. with a Wof H - supply goes down b/c LL’s fold; cost of remaining stuff goes up – White

  3. WofH AND rent control – even more LL’s will fold – White

  4. Only rent control – quality will go down

  5. Some will benefit, some will be driven out

  6. People take risks to invest - if you cap their profits – disincentive

  7. If LL doesn’t have a lot of $ invested – likely to leave

  8. Some who benefit don’t need the help

  9. No proof it’s working

2. (+)

a. Empirical evidence is unclear

b.Even if rent did go up b/c of WofH – it could be compensating for an ineffective market – where people would be willing to pay more - Posner

c.If consumers can’t/won’t pay any more – LL’s will have to absorb the cost

d. LL has invested a lot in the building – sale price will reflect the laws

e. LL’s have imposed monopoly rents – so they can afford to absorb

f. So unless the LL is losing $, they’ll stay
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