LOGISTICS
• No Office Hours Today
• Test Grades & Answers/Comments Handout
Available by Early Next Week
• Fall Schedule Available Later in the Week
– I’ll Talk About Course Selection Next Monday
– Also Course Selection Advice on My Home Page
• Doing an Old Exam Question for Feedback
– Info on Course Page
– I’ll Talk About and Take Qs on Wed/Fri
CORRECTIONS
• Course Page changes made Sat. a.m.
– DQ 109-10: “blackletter tests” are on S155
– Several adjustments to Assignment Sheet
• Corrections to Textbook for Wed/Fri
– P830 line 9: “dominant” should be
“servient”
– P848 2d para. line 5: “licensor” should be
“licensee”
Music: Stevie Nicks, Bella Donna (1981)
NCAA CONTEST POTENTIAL WINNERS
• If Michigan State reaches finals: Ainsworth
• If Butler over W.V. in finals: Ainsworth
• If W.V. over Butler in finals: B. Young
• If Duke v. Butler in finals: Rosado-Barreras
The Rule Against Perpetuities
Not Tested!
So Why Cover?
The Rule Against Perpetuities
Why Cover?
Horror Movie VALUE
(The Shadow of the Past)
The Rule Against Perpetuities
Why Cover?
• Awareness of Rule
• Policy Reasons for Interfering with Intent of
Grantor
– Alienability
– Limit Dead Hand Control
The Rule Against Perpetuities
No [contingent future] interest [in a
grantee] is good unless it must
vest, if at all, not later than twentyone years after some life in being
at the creation of the interest.
The Rule Against Perpetuities
Paradigm Grant: (in will): To my children for
life, then to my first grandchild to turn 21.
The Rule Against Perpetuities
Paradigm Grant: (in will): To my children for
life, then to my first grandchild to turn 21.
Easy Case (Void): To my children for life,
then to my first grandchild to turn 30.
The Rule Against Perpetuities
Paradigm Grant: (in will): To my children for
life, then to my first grandchild to turn 21.
Easy Case (Void): To my children for life, then
to my first grandchild to turn 30.
Easy Case (Void): To B and B’s heirs, but if
the property is ever used for commercial
purposes, to C and C’s heirs.
The Rule Against Perpetuities
Jiminy conveys to Pinocchio for life, then
to Cleo if Cleo attains the age of 30." Cleo
is now 2 years old.
The Rule Against Perpetuities
Jiminy conveys to Pinocchio for life, then
to Cleo if Cleo attains the age of 30."
Cleo is now 2 years old.
• OK. Must vest (if at all) during Cleo’s
lifetime.
• That can vest 21 year’s after P’s death
doesn’t matter if C can serve as
measuring life.
The Rule Against Perpetuities
Mary, a teacher of property law, grants $1,000
"for all members of my present property
class who are admitted to the bar."
The Rule Against Perpetuities
Mary, a teacher of property law, grants $1,000
"for all members of my present property
class who are admitted to the bar."
• OK. Whenever grant to living person
conditional on that person doing something, OK
because has to happen w/in their life.
The Rule Against Perpetuities
PRACTICE POINTS
• Modified by statute or caselaw in most states
(although basic analysis usually still required).
• Can show up (as surprise) with regard to
business transactions like options and security
interests.
Transition: Back to Landlord-Tenant
& Forward to Servitudes
• Common Ground
– Based in Contracts
– Shared Rights to Same Piece of Land
• Common Issues
– Interpretation of Contract Provisions
– Public Policy Limitations on Right to Contract
Tenant’s Right to Transfer
Featuring EAGLES
Tenant’s Right to Transfer
1. Overview
2. “Reasonable” Withholding of Consent
3. Should Courts Imply “Reasonableness”?
a. Commercial Tenancies
b. Residential Tenancies
4. Waiver Permissible?
Tenant’s Right to Transfer:
Overview
ASSIGNMENT
• Transfer of entire remaining lease term.
• Original L and T retain responsibilities to each
other.
• Generally speaking L and Assignee now also
responsible to each other for original lease
terms
Tenant’s Right to Transfer:
Overview
SUBLEASE
• Transfer of less than entire remaining lease
term.
• Original L and T retain responsibilities to each
other.
• Generally speaking L and Sublessee not
responsible to each other for original lease
terms
Tenant’s Right to Transfer:
Overview
Right to Transfer
• T allowed to transfer unless lease provision to
contrary.
• Limits read narrowly (e.g., ban on “assignment”
won’t prevent subleases).
• Common provision: “No transfer w/o consent of
landlord”
Tenant’s Right to Transfer
1. Overview
2. “Reasonable” Withholding of
Landlord’s Consent
3. Should Courts Imply “Reasonableness”?
a. Commercial Tenancies
b. Residential Tenancies
4. Waiver Permissible?
Tenant’s Right to Transfer:
Definition of 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?
Tenant’s Right to Transfer:
Definition of of “Reasonable”
•
•
What is “reasonable” in these contexts?
Funk: look to what a “reasonable man
in the L’s position” would do. (Thanks)
Tenant’s Right to Transfer:
Definition of of “Reasonable”
LEGITIMATE CONCERNS
• Assurances re Rent
• Assurances re Use & Care of Premises
• Proposed Use:
– Need for Alterations
– Legality
– Compatible w Other Tenants
Tenant’s Right to Transfer:
Definition of of “Reasonable”
NOT LEGITIMATE CONCERNS
• Personal Taste, Sensibility or Convenience
• Lever to Change Lease Terms (esp. T
expectations re $)
• Note Cases: Collateral Economic Advantage
(e.g., Filling Other Units)
Tenant’s Right to Transfer:
Definition of of “Reasonable”
HYPOS
• Bait & Switch (T wants to transfer to previously
rejected applicant; no financial reason to reject)
• Religious or Political Objections
Tenant’s Right to Transfer
1. Overview
2. “Reasonable” Withholding of Consent
3. Should Courts Imply “Reasonableness”?
a. Commercial Tenancies
b. Residential Tenancies
4. Waiver Permissible?
Tenant’s Right to Transfer:
Imply Reasonableness (Comm’l)?
Arguments FOR Implying
Reasonableness?
Tenant’s Right to Transfer:
Imply Reasonableness (Comm’l)?
Arguments FOR Implying Reasonableness
•
•
•
•
Importance of Alienation
General Reqmt. of Good Faith & Fair Dealing
Protects L’s Legitimate Concerns (esp. re $$$)
Prevents L Using Transfer to Extort Better Lease
Terms
Tenant’s Right to Transfer:
Imply Reasonableness (Comm’l)?
Arguments AGAINST Implying
Reasonableness?
Tenant’s Right to Transfer:
Imply Reasonableness (Comm’l)?
Arguments Against Implying Reasonableness
• Rewriting Contract
• Interferes w L’s Control of Own Property
• May Lead to Lot of Litigation
Tenant’s Right to Transfer
1. Overview
2. “Reasonable” Withholding of Consent
3. Should Courts Imply “Reasonableness”?
a. Commercial Tenancies
b. Residential Tenancies
4. Waiver Permissible?
Tenant’s Right to Transfer:
Imply Reasonableness (Residential)?
Why Might We Look at Differently if
Residential Lease?
Tenant’s Right to Transfer:
Imply Reasonableness (Residential)?
Why Different if Residential Lease?
• Maybe L more personally involved  More L Control
• If L lives on premises  More L control
• T may have less knowledge and/or bargaining power 
Less L Control
• More legit. reasons to reject in comm’l setting
More States Imply in Residential Setting
Tenant’s Right to Transfer
1. Overview
2. “Reasonable” Withholding of Consent
3. Should Courts Imply “Reasonableness”?
a. Commercial Tenancies
b. Residential Tenancies
4. Waiver Permissible?
Tenant’s Right to Transfer
Waiver Permissible?
• Usual Arguments re Waivers (be familiar with)
• Restatement says Waiver OK if “freely bargained for.”
• Some States say NO.
HABITABILITY & Related Issues
Featuring FALCONS
HABITABILITY & Related Issues
1. Review of History
2. Constructive Eviction
3. Warranty of Habitability
4. Retaliatory Eviction
HABITABILITY & Related Issues: Review of History
1. Common Law: Absent K, No L Duty to Provide
Premises in Usable Condition or to Repair
2. Constructive Eviction: Physical Problems
Attributable to L Equivalent to Eviction, T Can
End Lease
3. Implied Warranty of Habitability:
a. Courts Create L Duty to Maintain Minimum
Habitability Stds in Residential Leases (1960s  80s)
b. Version exists today in almost every state via statute
or caselaw
HABITABILITY & Related Issues
1. Review of History
2. Constructive Eviction & Related
Doctrines
3. Warranty of Habitability
4. Retaliatory Eviction
HABITABILITY & Related Issues: Constructive Eviction
Implied Covenant of Quiet Enjoyment
• Traditionally not really about quiet or
enjoyment in physical sense.
• Protected legal right to possess from acts
authorized by L
– e.g., L evicts or excludes prior to end of lease
– e.g., L purports to rent or sell to someone
else prior to end of lease
• What other kinds of protections are implied
in the Covenant of QE?
HABITABILITY & Related Issues: Constructive Eviction
Three Doctrines
• Partial Actual Eviction
• Constructive Eviction
• Partial Constructive Eviction (some states)
HABITABILITY & Related Issues
1. Review of History
2. Constructive Eviction
3. Warranty of Habitability
4. Retaliatory Eviction