Property Law Course Outline PDF

Property Framework Property law = Legal positivism - rights and duties are created and cultural defined Public property- Owned by the government Private property - owned by one or more private person or business Real Property- Fixed to land Personal Property - Movabl...

Property Framework Property law = Legal positivism - rights and duties are created and cultural defined Public property- Owned by the government Private property - owned by one or more private person or business Real Property- Fixed to land Personal Property - Movable property Intellectual property Property by creation Intentional property ways of protections ○ Patents - protects ideas and is a limited duration property right ○ Copyright protect tangible form of expression ○ Trademark identifies the source of the goods ○ Publicity- the exclusive right to license their identity for ad promotion Why recognize property? Reduce conflict Encourage productive use and innovation Promotes self identity Promotes democracy Damages Punitive- damages that are intended to punish Nominal- damages that are intended to acknowledge that the plaintiffs right was infringed (money is not the main objective) Compensatory- damages are intended to compensate for the loss. 5 Theories of property Protect first possession : ○ The idea of first come, first serve  ○ Critiques say that this explains how property arose but not why it makes sense for the society Economic or labor theory ○ Merges your labor with property Utilitarian theory ○ Providing the most happiness to the society Democratic theory ○ Property gives people greater stake in the government Personhood ○ Personal meaning or personal identity What is property? Rights among people concerning things Property is a bundle of sticks 1. Right to transfer (Johnson v M’intosh) (Johnson v M’intosh) (Government has the sole right to transfer) ○ F: P bought land from an Indian tribe. Government had acquired all land occupied by tribes. Government sold land that P had brought from the tribe to D. ○ H: The court could not recognize P’s right to property. ○ R: The government has sole right to transfer property. The government has to be involved in every transfer of property. Property ownership must be recognized by the government. (Moore v. Regents) ○ F: P has cancer and unique cells. D Took P’s cells without consent. D used genetic engineering and made millions off P’s cells. ○ H: Not Conversion ( conversion is civil theft)  ○ R: Allowing the theory of conversion would destroy the economic incentive to conduct important research. **Limits the right to transfer body parts to only body parts that are regenerative such as hair. “Human cells are not a part of individual likeness” we have a limited right when it comes to biologigical waste such as cells. ○ TA: Common law to accession which provides that when a person uses his own labor or materials in good faith to fundamentally transform another property he acquires titl to the final property 2. Right to exclude (the most essential stick) ○ Trespass and Right of publicity ○ White v. Samsung ( intellectual property) ( right to publicity) 1. Appropriation to the plaintiffs name or likeness ( something that reminds the viewer of them) 2. for the defendants benefit 3. Lack of consent 4. And Injury occurs 5. ** Kozinski dissent - allowing this would prevent/provide no incentive for creativity. ○ Owners have the right to exclude ○ Trespass is an unwarrantable entry on another soil. Importance of trespass - (Jacque v. Steenberg homes) F: P owns 170 acres of land. D asked P for permission to cross through P’s land and P said no. D does it anyways. H: Trespass (even when there are no damages) R: private owners and society have much more than just nominal interest in excluding others from private property. Private landowners should feel confident  that wrongdoers who trespass among their land will be appropriately punished. If trespass was not a thing landowners would have no incentive to create and produce. Exceptions to trespass (Privilege) Consent of property owner Necessity to enter ○ Public necessity - (prevent the public disaster) can have liability but no trespass ○ Private necessity - cannot have liability and is not trespass (State v. Shack) - F: D worked for a Government Non Profit that provided health and legal services to migrant workers. D wants to go to a complaints farm to provide legal service for workers. Complaint only allowed if it was done under his supervision. D said No. Complaint refused to let D go ong property. H: D would not be held for trespass R: the employers right to regulate the entry of anyone on their property should not deprive the workers of the basic needs.The court used the policy rationale that there should be a fair adjustment of competing needs of the parties. Human values come before property rights (policy rationale). Also, this case created the governmental worker privilege that protects liability for trespass. Government worker EXCEPTION Must be a government worker Serving human needs. When you allow the public, you must allow everyone. 3. Right to use ○ Must to use your property in a manner that does not injure another person's property ○ Private nuisance (must be evaluated on a case by case basis) is: 1. Intentional; 2. Nontresspassory (can be theoretical matter); 3. Unreasonable and; 4. Substantial interference with; 5. The use and enjoyment of the plaintiffs land. (Prah v Maretti) (lack of sunlight can be a cause of action) Involved the dispute over sunlight and solar panels. This case determined that private nuisance law is applicable in disputes involving theoretical matters such as sunlight, and the private nuisance law requires a case case analysis. Private nuisance law prevents individuals from doing things just to piss off their neighbor with no true value or purpose behind their actions. ○ Spite fence (type of private nuisance) A fence or other structure in the nature of a fence Unnecessarily exceeded 6 feet Maliciously directed For the purpose of annoying the owner or occupants of Adjoining property. (Sundowner v. King) - (Hotel Spite Fence case) F: P sold a Hotel to D. After the sale P built a hotel next to D. D was Upset and built a large structure to cover 80% of P’s Building. H: Spite Fence R: The structure serves no useful purpose. This structure was erected for the sole purpose of damaging his neighbor. Case established the conditional right to sunlight. No man has the legal right to make malicious use of his property for the  purpose of damaging his neighbor. Also, there should be a balancing test which is used to evaluate the benefits and the cost of the fence. Balancing test when evaluating spite fences 1. Malicious intent 2. The usefulness of the structure ○ Differences between private nuisance and spite fences. Spite fences require malicious intent, and require a fence. On the other hand, private nuisance is much broader 4. Right to destroy ( Can be a private nuisance) ○ The right to destroy is not absolute and the right to destroy cannot intrude on others' right to property. Therefore, it is driven by personal beliefs and circumstances. ○ (Eyerman v. Mercantile Trust) - Uses the unreasonable element of private nuisance to evaluate if the demolition of property would be considered a violation of public policy. Held that the right to destroy is not an absolute right but a conditional right based on the impacts that has on other individuals of the community. (This is a private nuisance case too) ( Public policy argument). Chapter 3 Owning Personal Property 1. Rule of capture (Pertains to unowned property) Three rules of Capture Location of capture, type of chattel and custom matter.  1. Pierson v. Post (certain control that pertains to wild animals) NOT DOMESTIC ANIMALS. a. Depriving an animal of natural liberty, and bringing it within certain control. 2. State v. Shaw (Fishnet case) (Created an exception to certain control. Held that some control is enough) a. Four element test 1. The pursuer must bring them within his power ( Gain possession) and 2. Control 3. And maintain his control 4. as to show that he did not intend to abandon them to gain the world at large. a. The law does not require absolute security against the possibility of escape for animals roaming in their natural habitat for property owner to be entitled to ownership Haslem v. Lockwood - (Labor theory) Can enhance abandoned property by creating value through labor. The person needs to have taken the time to transform it from abandoned to owned by taking it into complete control. 4. Popov v. Hayashi (baseball case) ( Pre-possessory interest on abandoned property) a. Abandon property is when someone voluntarily relinquishes their rights of ownership b. Pre-possessory interest - When an actor undertakes significant but incomplete steps to achieve possession of abandoned personal property and the effort is interrupted by the unlawful acts of another. People can sue for the right for conversion/title). c. When the plaintiff interrupts the object's normal trajectory.  d. Does not give title, but gives a qualified right to possession. When deciding which rule of capture to apply to a case, we must ask what, why, how, where and type of property. We must look at all circumstances and consider all of the context. Courts consider customs/traditions of forms of capture when deciding ownership ○ For example, they took into consideration the inability to have full control of fish in fishing practices. 2. Rule of finders ( Pertains to owned property) Bailment - Rightful possession of goods by one who is not the owner. Bailment requires: possession of the goods; intent to exercise control over the goods; consent of the bailee as to possession of the goods; and knowledge of the presence of the goods. ○ Three types of bailment Those for mutual benefit ( Requires bailee take reasonable care) Those for primary benefit of the Bailee ( Requires Bailee have extraordinary care) Those for primary benefit of bailor (Bailee can only only be liable if he acts with gross negligence or bad faith) Bailee -is the person who receives the chattel Bailor - is the true owner EMPLOYEE/EMPLOYER RELATIONSHIP: Because an employee is at all times subject to the orders and control of his or her employer, an employee  cannot be a bailee of his employer's goods. The ordinary possession by an employee of his employer's goods does not constitute a bailment. Possession cannot be thrust upon the bailee without the bailee's consent. A delivery without acceptance by the bailee will not create a bailment, and mere custody is insufficient to constitute possession. Location matters when categorizing finders property. Place influences classification of property Four categories of finders What distinguishes the four types of Found property is the intent of the true owner, which is usually unknown. We must always start by categorizing the property.And Ask where and how. ○ Lost property: Property is lost when the owner unintentionally and involuntarily parts ways with it. ○ Title of possession goes to the Finder ○ In (Hannah v. Peel)- ○ F: P was stationed at the defendant's home. P found a brooch.Defendant had no knowledge of the existence of the brooch prior to the acknowledgment by the plaintiff. ○ H: Lost Property ○ R:The court strategically ruled that the brooch in question was lost property because the plaintiff had done everything right policy wise and by saying it was lost property allowed the plaintiff to recover the property. Further, The categorization of property has allowed for socially desirable outcomes. ○ Typical statute for lost property requires: 1. Notify the police 2. Deposit found item with police 3. Publish notice of find  If true owner fails to claim property within a certain period of time title vest in the finder Bridges (Notes in Shop) the finder as opposed to the owner of the real property Where the item is found the lost item vests in South Staffordshire (Ring in Pool) When you are an employee, the things found in the course of employment and on the place of employment, it must go to the employer Elwes (Ancient Boat) The person who holds title of the locus in quo is the owner of the found property when a lease does not cover the type of property that is found. Mislaid property: Property is mislaid when the owner voluntarily and knowingly places it somewhere, but unintentionally forgets it. ○ Title of possession goes to the owner of the premise( locus in quo) in which the object was found because it is believed that the true owner is more likely to return to the place where he left the object. Landowners are entitled to everything attached to and under their land. ○ (Mcavoy v. Medina) - This was the barbershop purse case where the court held that since the property was voluntarily placed on the table and accidentally left behind. It's likely that the property was mislaid.The plaintiff did not have the right to take the property, but rather had the duty to use reasonable care until the true owner got it. ○ (Benjamin v Linder) - This was the case where the money was found wrapped in aluminum foil on the side of the airplane. The court here found that this was mislaid property due to the fact of the nature in which the money was found, and it was reasonable  to believe that the money was placed there intentionally. Therefore, the money went to the premise owner because there is a belief that the true owner may eventually recall where he placed his property and returned there to reclaim it. Abandon property: Property is abandoned when the owner knowingly relinquishes all rights, title, and interest in it. ○ Title of possession goes to the Finder ○ (Armory v. Delamirie) - This was the chimney sweeper case that found jewelry.The court held that he had such a property that enabled him to keep it against all, but the rightful owner, and consequently, he could maintain the jewelry. Treasure trove: When the owner concealed it in a hidden location long ago. Usually is limited to gold, silver coins, and currency. 3. Gifts Gifts by check or bank books ○ No gift occurs until the check is cashed because the owner only receives dominion and control over the money once the money is cashed. Inter vivos's gifts (only applies to personal property) (irrevocable)  ○ (Gruen v Gruen) - This case is about a valuable painting that was given from father to son, but father retained possession for his lifetime and gave his son an immediate transfer of title of the painting. Also, the father used the symbolic form transfer for delivery.Therefore, the father's actions constituted inter vivos gifts. ○ Donative intent - The donor must intend to make an immediate transfer of property. ○ Delivery - Property must be delivered to Donee so the Donee has dominion and control. Also, there must be a transfer of a thing. Words alone are not enough to amount to delivery. Types of delivery ( Delivery is important because it makes the owner's interest clear). a. Manual delivery (Preferred by the courts) - Donor physically transferred the possession to the donee. b. Constructive delivery - Requires that the donor transfer an object that provides access to a gifted item. Manual delivery is impractical, or impossible. c. Symbolic delivery: (disfavored by the court) - Donor transfers to the donee an object that represents the gifted item (Example a letter). ○ Acceptance Testamentary gifts ○ Gifts made by Will ○ Usually require a signature and witnesses ○ It is a transfer only of Future interest when the donor dies. Causa Mortis gifts (Revocable)  1. Donative intent - The donor must have intended to make an immediate transfer of property. 2. Delivery - Property must be delivered to Donee so the Donee has dominion and control. Also, there must be a transfer of a thing. Words alone are not enough to amount to delivery. Types of delivery ( Delivery is important because it makes the owner's interest clear). d. Manual delivery (Preferred by the courts) - Donor physically transferred the possession to the donee. e. Constructive delivery - Requires that the donor transfer an object that provides access to a gifted item. Manual delivery is impractical, or impossible. f. Symbolic delivery: (disfavored by the court) - Donor transfers to the donee an object that represents the gifted item (Example a letter). 3. Acceptance 4. The donor's anticipation of imminent death by external peril. (Re Estates of Oaks) - This involved the case where an individual had PTSD from being in an army. As a result, he had developed depression. So he decided to commit suicide. He had left a note to his long time lover giving everything that he had to her. The court held that since the suicide was caused by depression, depression was the external peril that was required under Causa Mortis gifts. Therefore, a donors death by suicide can be sufficient to establish gift Causa Mortis. Conditional gifts  ○ Only apply to engagement rings. ○ Three types of rules for conditional gifts Montana Rule (Minority) - All engagement rings are treated like inter vivos gifts and are irrevocable. (Albenger v. Harris)- Here the defendant and the plaintiff became engaged, but over the course of their engagement they repeatedly separated and reconciled. It got to the point that the plaintiff sued in an attempt to recover the expensive ring that he had given. The court held that the plaintiff voluntarily transferred dominion and control to defendant, the defendant accepted the ring, and the gift was complete upon the delivery therefore, a completed gift is not revocable. No Fault rule - Goes to the party who gave the ring. Fault rule - The party at fault for ending the engagement does not get the ring ( Massachusetts law). Wrap Up of Personal Property Leasing property Types  Commercial leases: a formal agreement to rent a building, vehicle, land, or property that will be used for business purposes ○ Commercial leases have not evolved because commercial tenants tend to be sophisticated enough to protect its interest by negotiating the lease. Residential lease: is a contract between a landlord and a tenant Rules Immutable rules- supersede any contract provision on the lease (Ex. Lead paint) ○ Unconscionable terms about health and safety ○ Usually dictated by statute Default rules - rules that fill the gaps that the parties did not address in the leases ○ Parties can ignore the default rules in lease negotiation but they cannot evade immutable rules Landowner has the right to exclude EXCEPT: Tenant is of a protected class; AND the landlord is excluding them for the sole purpose of excluding that protected class. The FHA (Fair housing act) prevents discrimination on the basis of color, race, religion, sex, familial status (families with minor children or pregnant women) , national origin or disability. (Niethamer v Brenneman ) ○ F: responded to rental advertisement. He had bad credit because he devoted his financial resources to paying medical bills of his lover, who died of aids. three separate offers were made each time his application was denied. ○ H : P was a member of a protected class and he was qualified to rent the property ○ R: P was qualified to rent, and he had the perception of disability ○ Take away- Three step approach to establish discriminatory intent under fair housing act. ○ Disparate treatment test 1. The plaintiff establishes a Prima Facie case of discrimination. a. That he is a member of a protected class and the defendant suspects; b. That he applied for and was qualified to rent the property in question; c. The defendant rejected the application; d. The property remained available thereafter.  e. Discrimination gives rise to unlawful discrimination interference. 2. The burden shifts to the defendant to prove a legitimate discriminatory reason for this conduct; and 3. If he defendant meets burden the plaintiff may give the reason or material facts are disputed Exceptions to the Fair Housing act 1. Does not apply to rooms and units in living quarters occupied by no more than four families living independently from each other. 2. Any single-family house sold or rented by an owner if the owner does not own more than three houses and does not use a real estate broker or agent in the sale or rental. 3. (Fair housing council of San Fernando v. Roommate.com)- the FHA does not apply to roommates. It is lawful to discriminate in selecting roommates because allowing so would be a serious invasion of privacy, autonomy, and security. Four types of non-freehold estates (start date and date tell us what type of lease is involved) *The difference between the four types is the duration, who can terminate, and how long of a notice is necessary for termination. 1. Term of years Tenancy ( can also be called estate for years) a. Has a start date and end date ( * automatic ending) b. Duration that is agreed upon an advanced c. When the term ends tenant's possessory right automatically expires and the landlord may repossess the premises. 2. Periodic Tenancy a. Start date, end date and automatic renewal. b. Automatic renewal unless landlord or tenant terminates the tenancy by giving advance notice 3. Tenancy at will (default) a. There is no fixed duration b. Continues only so long as both the landlord and the tenant desire 4. Tenancy at sufferance a. When a person who rightfully took possession of the land continues in possession after right ends, also known as a holdover tenant. Three aspects of lease negotiation that merit special attention 1. Statute of frauds- mandates that a lease of real property for a term more than one year cannot be enforced unless it is in writing. And both parties sign. 2. Standard forms- pre-printed forms that limit negotiation between parties. 3. Rent control- prevent landowners from exorbitant rent increases. a. This is problematic because it provides no incentive for landowners to improve conditions Delivering possession to tenant Three types of possession ○ General possession - exercise, dominion and control over property ○ Actual possession - physical control and occupancy”English rule” ○ Legal possession - the right to obtain actual possession “ American rule” English rule requires that landowners deliver the actual possession of the premise in the beginning of the term. ( all states except FL) American rule a landlord is obligated to deliver the legal right to possession, but not actual possession. Tenant must sue the holdover tenant. (Key data v United States) - (delivering possession in federal cases) (commercial lease) ○ This case allowed the federal government to ignore state laws that normally govern leases. Also, the English rule became the uniform federal law for deciding landowners duty to deliver possession and landowners collateral obligation involving federal contracts. Majority rule - Requires English rule. Doctrine of Independent Covenant Promises are independent and each party must perform on his or her part. Implied covenant of private enjoyment (NOT A CAUSE OF ACTION) Promise by the landlord that he would not wrongfully interfere with the tenants possession EXCEPT for eviction Constructive Eviction (CE) (For Commercial leases) (*requires that you vacate) ( Must Ask What Type of Lease) 1. Wrongful conduct 2. By landlord 3. That Substantially interfered with tenants beneficial use and enjoyment of his property that was leased (something that directly impacts a tenants ability to conduct their business); AND 4. The tenant must leave within a reasonable time. Tenants must notify Landlord and the landlord must be given a reasonable time to fix the issue but the tenant cannot wait too long or they waive their rights. Both action and the lack of action can constitute conduct by the landlord which amount to constructive eviction. ( Fidelity Mutual Life Insurance v. Kaminsky) Commercial lease (Omission)- ○ F: P Gynecologist who owns a abortion clinic on D’s property. Protestors were protesting outside of p’s leased place. P told D but D did nothing about it. ○ H:Constructive eviction ○ R: D’s omission to act constituted wrongful conduct and the protestors action placed a substantial burden on P’s business. So, D had the affirmative duty to act and stop the 3rd party.Lack of action can constitute conduct by the landlord which amount to constructive eviction Medical Field Substantial interference = Does the action directly affect an essential part of the Doctors practice? (JMBv. Paolucci)  ○ F: D owns a jewelry store. D has a noisy next door neighbor that is affecting business. D tries to address the issue but nothing beneficial is done. ○ H: Not Constructive eviction ○ R: Here, the tenant fails to vacate the premises within a reasonable time , the tenant is considered to have waived his right to the landlord's breach of covenant. Waiver - the tenant fails to vacate the premises within a reasonable time , the tenant is considered to have waived his right to the landlord's breach of covenant. The tenant no longer has a cause of action. Implied warranty of habitability IWH (applies mainly to residential leases) ( enforced by codes and laws) (Must Ask What Type of Lease) Can you live there? They are Immutable rules This law CANNOT be waived. New doctrine to protect residential tenants from defective housing conditions. Requirements: 1. The tenant must notify the landlord about the defect. 2. Allow a reasonable time for the landlord to fix the issue. Tenant remedies for Breach of Implied warranty of habitability 1. Withhold rent - not paying rent gives the owner the incentive to fix the premises. ( should put money in escrow account) 2. Repair and Deduct- withhold rent and use fund to fix issue 3. Sue for damages 4. Terminate the lease Landlord Liable for any issue within the building. (Wade v. Jobe)  The court acknowledges that the tenant is in the most disadvantaged state in regards to residential leases because of housing shortages, standardized leases and racial /class discrimination. Tenants are in a poor position to bargain. tenant recovery reflects the percentage by which the tenants' use and enjoyment of the premise has been reduced by the inhabitable condition. Transferring the tenants interest A tenant can transfer interest in two way 1. Sublease - Right to reenter 2. Assignment - No right to reenter. Help dictate who is liable to the landlord Objective test = ***Did the Tenant transfer his right of possession for all of the remaining term (assignment) or not (sublease). ONLY TEST THAT WILL BE ON TEST. Subjective test = whether the parties intended to make an assignment or Sublease. NOT ON THE TEST. Privity of estate - Land possessor has rights and duties in connection to the land. Transfer of privity of estates does not break privity of contract. Sublease ○ The first tenant still has a right and/or ability to return to property before the end of term. (Not full duration). ○ Tenant 1 transfers some of his rights to tenant 2 ○ There is no connection between T2 and the landlord. ○ Tenant 1 still has privity of contract and privity of estate. ○ Tenant 2 and Landlord have no relationship ○ Landlords can only sue tenant 1. First tenant is fully liable. Assignment ○ The tenant(assignor) Transfers (assigns) her entire interest in the leased premise to a third party (the assignee). ○ The assignee takes over the assignor's duty and rights. ○ Privity of estate is broken but the Privity of contract is not broken.  ○ Tenant 1 and Tenant 2 have privity of contract. ○ Tenant 1 and Landlord have privity of contract. ○ Tenant 2 have Privity of estate with the landlord ○ Landlords can sue T1 and T2. ○ *** Novation - Contract to end contract.- usually happens when the landlord wants to rent for more money and that is why they wanted to release Tenant 1 from lease. ○ DUMPOR'S rule- if the landlord approves the first assignment the landlord has waived his right to consent for future assignments. (minority rule) (Ernest v. Conditt) F: P leased property to T1. T1 Sold business to T2. T2 Failed to pay rent. P Asked T2 why he didn't pay rent. D said that he could not be liable for rent because this was a sublease not assignment. H: Assignment R: This current agreement, despite its terms, does not leave the lessee with a right to re-enter or an interest, thus it is an assignment. Landlord right to refuse transfer (must have consent) 1. Sole discretion ( majority) - The landlord has the sole discretion to refuse consent for any reason whatsoever. 2. Reasonableness Standard (minority)- May refuse on a reasonable standard. 3. No standard in the Lease - Silent Consent clause. (Kendall v. Pestana) F: Robert Bixler wanted to sell his business to Jack Kendall and sublease the property to Kendall but the [Perlitch - Bixler] lease provided that written consent of the [sub]lessor was required before the [Sub]lessee could assign his interest. Lease had a silent consent clause. Ernest Pestana was the successor in interest. Ernest Pestana refused consent to the sublease. H: commercially reasonable objection became the default rule for leases with silent consent clauses. Silent Clause is when there is a clause but there isn't necessarily a reason explaining when. The Kendall Clause is the minority rule and only pertains to silent clauses in commercial leases. ○ Commercially reasonable objection LEGALITY OF BUSINESS CONDITION OF PREMISE FINANCIAL BENEFIT NATURE OF OCCUPANCY  ○ ** Landlord speculation is NOT a Commercially reasonable objection. The landlord needs to have objective evidence to prove the commercially reasonable standard. D. Ending the tenancy Surrender - (This is not Novation) - Mutual agreement to terminate the lease early. (There is consent) Abandonment (Mitigation only applies to Abandonment) - when the tenant vacates the premises without notice and defaults on payments. Landowner 2 options for the situation- 1. Terminate the lease; 2. Attempt to mitigate the damages and then sue for the remaining rent. ** All of the states have a mitigation rule when the Landlord bears the burden of proof. ** MITIGATION MASS LAW- if the tenant abandons the Apt without consent and the landlord makes reasonable effort to mitigate the loss the tenant owes rent for the entire remaining balance. **Showing the apartment last is not a reasonable effort to mitigate the loss. Sommer v. Kridel ( Mitigation case) F: P and D entered into a lease. D sent notice that he was backing out of the lease. P didn't answer. P did not reenter the apartment until the end of the two year lease. P sued for for the total amount of the lease H: D is not liable R: Landlord has the duty to mitigate the loss where he seeks to recover rent from defaulting tenants. Eviction Eviction a person is required to quit a premise outside the terms of the lease. Retaliatory Eviction Require: 1. The tenants is a protected action and 2. The tenant is evicted within 6 months to a year ( depends on the statute) Goes alongside with the implied warranty of habitability. Gives the implied warranty of hability teeth Elk Creek management v. Gilbert F: D made a general complaint about the electrical system of the house. As a result of the cost to fix the electrical issue of the house the landlord evicted the tenant. H: Retaliatory eviction R: the complaint does not have to prove that the protected action was the sole reason for the eviction but rather they just have to prove that the action substantially made a difference in the owner's decision (does not require that the tenants action injure the plaintiff) ** Action must happen after the protected act by the tenant and and it doesn't require that the tenant show injury Hillview v. Bloomquist This was the tenant union case that led to one of the board members punching the property manager's face and as a result all the board members that were present at that meeting were evicted. This case established that there is a limit to the type of tolerable behavior by the tenant. (Landlord has the burden to show that the tenant was evicted for a legitimate non retaliatory reason.) Good faith eviction - Eviction for good cause Can be: 1. Failure of tenant to pay rent 2. T violate the lease 3. Nuisance 4. The use of property for illegal purposes 5. Tenant violates the law AMICO CASE The New hampshire good faith eviction standard has been extended to lease renewal ( must renew unless the landlord has a good cause not too) Self help eviction AKA Wrongful eviction “Non Peaceful reentry” ** landlord creates circumstance that force tenant out of the lease premise **Prohibited in all states for residential leases. ** it was not accomplished in a peaceful manner, and therefore cannot be justified on the common law rule. Berg v. wiley F: P had a 5 year lease with D. Wiley entered the premises in P’s absence and without her knowledge and changed the locks. H: Self help eviction is not permitted R: The court ruled along with public policy and promoted that landlords seek termination of leases through the judicial practice rather than taking actions into their own hands. The self-help reentry against a tenant in possession is wrongful under the growing modern doctrine that the landlord must always resort to judicial process to enforce a statutory remedy against a tenant wrongfully in possession. It is reasonable to conclude that the only reason actual violence didn’t erupt as a result of the defendants actions was because Berg was absent. For those reasons these actions of reentry were not peaceful. ** Remedies that a tenant can take against the landlord for self help eviction provide incentive for Landlord to seek the judicial process.