Week 9

Question 1

Under bilateral K model (rather than independent covenant), a serious breach could ___ but a less serious one __

Answer 1

lead to recission of lease and termination of future performance, only damages (like independent covenants)

Question 2

Medico Dental says that restrictive covenants in a lease that ____

Answer 2

run up to entire consideration (without which would defeat purpose of the lease) are mutual and dependent

Question 3

Medico Dental says that a L breaches a lease by failing to take action ___

Answer 3

to stop conduct by another tenant that amounts to a violation of a dependent covenant

Question 4

Medico Dental holds that ___

Answer 4

the exclusivity clause was interdependent to promise to pay (essential to business success)

Question 5

Implied warrant of habitability

Answer 5

implied in K for lease and makes lessee covenant dependent on continued habitability of the property

Question 6

Most courts have made IWH ___

Answer 6

nonwaivable

Question 7

R4P endorses IWH but provides ___

Answer 7

can be waived for consideration

Question 8

Remedies for violating IWH

Answer 8

recission of lease (no more rent)
order directing SP
action for damages

Question 9

Some jdxs allow ___ until L corrects IWH violation

Answer 9

withholding all or portion of rent

Question 10

Javins says that leases ____ so ___

Answer 10

of urban dwellings have IWH, total breach extinguishes duty to pay rent

Question 11

Rationale for IWH

Answer 11

(1) unequal bargaining power
(2) analogy to products liability
(3) L more capacity to inspect and maintain

Question 12

When landlord transfers, the new landlord is bound by ___

Answer 12

covenants that run with the land

Question 13

Running with the land requires __ + __

Answer 13

intent of parties + touch and concern the land (so related to land as to enhance value and confer benefit upon it)

Question 14

Covenants to pay rent ___ touch and concern the land

Answer 14

DO

Question 15

____ don’t touch and concern the land

Answer 15

Purely financial obligations (outside of rent), security deposits etc

Question 16

Mullendor says a covenant runs with land _

Answer 16

only if touches and concerns the land

Question 17

Mullendore says to be a running covenant a promise to pay money must __

Answer 17

restrict funds to uses that benefit the land itself

Question 18

Mullendore holds that the ____ does not not run with the land

Answer 18

indemnification clause

Question 19

privity of K

Answer 19

obligations that come from being a party to a binding bilateral K

Question 20

privity of estate

Answer 20

obligations from OG lease that run with the land

Question 21

For privity of estate, one party must ___

Answer 21

be in possession of property or have a reversion

Question 22

Assignment

Answer 22

like alienation, prime lease transferred in full to assignee

Question 23

In assignment there is ___ between L and assignee but they are in ___

Answer 23

no privity of K, privity of estate

Question 24

In assignment, the prime tenant is still ___

Answer 24

in privity of K with L

Question 25

Sublease

Answer 25

interest of subtenant carved out of interest of prime tenant (Prime T like L)

Question 26

In sublease, prime tenant has ____ with L and subtenant is liable to __

Answer 26

privity of K, prime tenant (no privity of estate or K with L)

Question 27

Jaber holds that the __ determines if instrument is assignment vs. sublease

Answer 27

intention of the parties

Question 28

Inactive Ls will prefer ___ because ___

Answer 28

sublease, prime tenant serves as L

Question 29

Active Ls prefer ___

Answer 29

assignment,

Question 30

English rule for determining assignment vs. sublease

Answer 30

any instrument transferring for entire remainder of term is assignment

Question 31

Mass rule for determining assignment vs. sublease

Answer 31

if sublessor reserves right of re-entry for nonpayment of rent it is a sublease

Question 32

Jaber says the English rule __

Answer 32

arbitrary and disadvantages less sophisticated parties

Question 33

Jaber holds that they intended an assignment because ___

Answer 33

title of document as assignment

Question 34

Jaber court assumes that provision in OG lease providing for termination in event of destruction is __

Answer 34

not covenant running with land upon assignment to new tenant

Question 35

Kendall holds that when a commercial lease permits assignment only with __ , then consent ___

Answer 35

prior consent of the L, may be denied only for commercially reasonable objection

Question 36

Rationale for Kendall

Answer 36

(1) policy against restraint on alienation (lease is property) (2) duty of good faith and fair dealing (lease as K) (3) T gets benefits and losses from the lease

Question 37

In common interest communities, common areas are ___ but persons have ___

Answer 37

owned and managed by specialized entity, individual possessory rights ownership rights equivalent to fee simple

Question 38

Rationale for common interest communities

Answer 38

stability and some autonomy but still provides advantages of division of managerial authority

Question 39

Condos

Answer 39

fee simple for unit + tenancy in common of common areas (no partition)

Question 40

Coops are technically ___

Answer 40

corporations

Question 41

Coops

Answer 41

residents own shares in corporation and then get long term renewable interest lease if one fails to make payments others have to make up difference.

Question 42

Associate subdivision

Answer 42

consists of standalone units but with certain facilities in common with other units

Question 43

Problems with common interest communities

Answer 43

decisions may not always be the most efficient, transaction costs of decision making

Question 44

CCRs act as __

Answer 44

constitution of CIC

Question 45

HOAs act as ___

Answer 45

voting public of CIC

Question 46

Rules and regulations passed by HOAs are ___ but changes to CCRs passed by HOAs are ___

Answer 46

initiatives, amendments

Question 47

Under Nahrstedt, courts will defer to ____ but will generally ____ (Kiekel)

Answer 47

judgment of CCR provisions, stricter review to rules/regs adopted by HOAs or Boards

Question 48

Why more deference to CCRs?

Answer 48

unanimous consent whereas HOA rules susceptible to majority rule issues

Question 49

NY applies ____ to coops under Pullman

Answer 49

business judgment rule (deference to corp over tenant) in evaluating co-op board actions

Question 50

Nahrstedt holds that restrictions in master deed of CIC are ___

Answer 50

presumed reasonable unless they are clearly arbitrary or contrary to public policy

Question 51

Nahrstedt holds that the pet restriction was ___

Answer 51

rationally related to resident health and noise concerns

Question 52

Nahrstedt says that use restrictions in CIC are crucial to ___

Answer 52

stability, predictability, owner reliance interests

Question 53

Nahrstedt is worried about ___

Answer 53

costs of lawsuits to seek individual exemptions

Question 54

Nahrstedt dissent says the restrictions on cats are ___

Answer 54

arbitary/unreasonable and frays social fabric with little offset benefiting land

Question 55

Pullman held that since D could not ____ the board's decision was presumed appropriate

Answer 55

show that the board acted outside scope of its authority in a way that didn't further corporate purpose or in bad faith

Question 56

Kiekel says ___ important attribute of property that can't be prohibited unless __

Answer 56

right to rent, clearly proscribed in CIC declaration

Question 57

Kiekel says declaration didn't explicitly ___ but implicitly __

Answer 57

prohibit or permit renting, allowed by defining "resident" as including "tenants of owners"