I. Property 1 A. Definition 1

X. Landlord and tenant

A. Leasehold Esates -- always remember that a future interest arises -- look at it in terms of fairness and efficiency

1. Types

a. term for years

i. over on a given date --- no notice required

b. periodic tenancy

i. a lease for a period of some fixed duration that continues for succeeding periods until either LL or tenant gives notice of termination

ii. see relevant statute for when notice is required

c. tenancy at will

i. no fixed period that continues so long as both the landlord and tenant desire

d. tenancy at sufferance

i. arises when the tenant remains in possession (holds over) after termination of the tenancy

2. Issues

a. Conveyance versus contract

b. The statute of frauds

i. leases for more than a year must be in writing?

c. Form leases and the question of bargaining power

B. Antidiscrimination Law

1. Discrimination in Housing Markets

a. Turner article

i. When discrimination can occur in the process

a) advertised or marketed in such a way that qualified minorites do not learn about it

b) if agents refuse to do business with minorities or treat them unfavorably in their initial encounter

c) if agents fail to follow up business with minorites

d) if the final terms of sale or lease for minorites are unfavorable

e) if minority customers are unable to obtain mortgage financing or homeowners' insurance

ii. high levels of discrimination in the housing market that have not declined much since the late 1960s

iii. neither affordability not individual preferences can fully explain the high levels of segregation that prevail in US housing markets across the entire population spectrum

iv. Most studies only focus on discrimination in the initial encounter

v. Findings

a) black and hispanic homeseekers experience discrimination roughly half the times they visit a sales or rental agent

b) experience discrimination in three key areas -- terms and conditions for rental housing, financing assistance and overall sales effort

vi. Steering?

b. Sunstein -- Market will not stop discrimination

i. Reasons?

a) third party pressures --

b) statistical or economically rational discrimination

ii) proxies are helpful in reducing costs

c) effects of discrimination on human capital

ii) this creates a viscious circle that may increase its statistical rationality

ii. makes sense for landlords but not for home sellers

C. Federal Law Prohibiting Discrimination in Housing

1. Equal Protection Clause

a. limited utility b/c it only deals with state discrimination

i. only covers state run housing -- must be some sort of govt action

a) public housing

b) does it cover federal subsidized housing?

ii. have to show a discriminatory intent on behalf of the govt to prove a claim -- extremely difficult to prove

2. USC §1982

a. all citizens shall have the same right that white citizens have to inherit, buy, rent or enjoy housing in every state

b. only deals with racial discrimination -- limited impact

3. Fair Housing Act -- 42 USC §§3601 ff.

a. fill this in from the book

b. Amendments extended coverage to 2 groups

i. people with disabilities

a) unless individual would be a direct threat to health or safety of others in the building or if the person is likely to engage in activities that will result in extreme physical danger to the building

b) all buildings with 4 or more units must meet the design requirements

ii. Families with children

a) under the age of 18 cannot be discriminated against

b) does not apply to housing for senior citizens

c. amendment also increased enforcement of this act

i. upon receiving a complaint, HUD must investigate the issue and if it finds discrimination, then it must hold a hearing

4. Disparate Treatment Cases ---- Asbury v. Brougham

a. In order to prevail under these statutes, π must prove a discriminatory intent

b. part burden of proof analysis

i. π must come forth with a prima facie case of discrimination -- π must prove:

a) she is a member of a protected group

b) she applied for and was qualified to rent a unit

c) she was denied the opportunity to rent or to inspect or negotiate for rental of a unit

d) the housing opportunity remained available

ii. if π proves a prima facie case, the burden of production shifts to ∆s to produce evidence that the refusal to rent or negotiate for a rental was motivated by legitimate, non-racial considerations

a) evidence of minority occupation is relevant to rebutting a claim of discrimination but is not dispositive of a claim of intentional discrimination

iii. the burden then shifts back to π to show that the proferred reasons were just pretextual

5. Disparate Impact Cases

a. Most federal courts permit FHA challenges against practices that are not motivated by racial / sexual / religious / etc animus

b. Seemingly neutral practices can be successfully invalidated on the ground that they have a disproportionate effect on a protected group

i. π must prove prima facie case

a) must establish that the defendant's policy or practice had a disproportionate impact on a protected group -- frequently can be established with statistics

b) Burden of proof then shifts to the ∆

ii. Burden the ∆s must meet to rebut prima facie case

a) more difficult than what they face when confronted with a showing of discriminatory intent

b) Defendants must prove a business necessity sufficiently compelling to justify the challenged practice

c. Why do we have this lesser standard?

i. stop a policy b/f it results in discriminatory impact

ii. extremely difficult for π to bring a case on intent

iii. disparate treatment is case by case -- extremely expensive

a) can have more of an effect under disparate impact case -- affect more people