PropertyProf Blog

Franzese, Gorin, and Guzik on Landlord-Tenant Law and the Warranty of Habitability

Paula A. Franzese (Seton Hall), Abott Gorin (Essex-Newark Legal Services), and David J. Guzik (Seton Hall-law student) have posted The Implied Warranty of Habitability Lives: Making Real the Promise of Landlord Tenant Reform (Rutgers Law Review) on SSRN. Here's the abstract:

The implied warranty of habitability is an implicit promise that every residential landlord makes to provide tenant with premises suitable for basic human dwelling. Tenants can assert breach of the warranty affirmatively, in a suit against landlord for providing substandard housing, but most often assert the breach defensively in the context of landlord’s eviction proceeding against tenant for non-payment of rent. Still, national data suggests that notwithstanding its placement in the firmament of modern landlord-tenant law, few tenants actually assert breach of the implied warranty of habitability, whether affirmatively or defensively. Even in housing markets fraught with substandard rental dwellings, the warranty is underutilized. This Article endeavors to examine that lapse in the context of nonpayment of rent proceedings initiated by landlords in Essex County, New Jersey. Significantly, of the more than 40,000 eviction proceedings brought there in 2014, only 80 tenants asserted breach of the implied warranty of habitability as a defense. 

The authors used that field to learn more about the efficacy of the defense and, when raised successfully, its capacity to prompt the remediation of on-site defects. They found that notwithstanding its relative paucity of use, when invoked the implied warranty of habitability can and does work to bring needed repair and improvement to otherwise substandard dwellings. Indeed, in more than half of the cases surveyed the implied warranty of habitability was used successfully to cure housing code violations on leased premises. Moreover, irrespective of whether the defense succeeded or failed the majority of tenants who did assert it stated unequivocally that they would resort to it again if faced with significant on-site infirmities. The warranty deserves an important place in the stock of affirmative actions and defenses available to aggrieved tenants. The considerable challenge is to remove obstacles to its assertion, whether in the form of onerous rent deposit requirements, the absence of centralized databases for courts and rent subsidizing agencies to use when making decisions regarding rent subsidies for substandard premises, the subversive practice of “tenant blacklisting,” the scarcity of effective assistance of counsel or tenants’ lack of awareness of their basic rights.

What makes the work of these scholars particularly interesting is that it has resulted in actual legislation! As a result of this research, in 2017 the New Jersey legislature introduced Act 4610 (which codifies and enhances the use of breach of the implied warranty of habitability as a defense to certain eviction actions) and Act 4612 (which establishes the confidentiality of landlord-tenant court records and addresses adverse actions on rental applications). The authors and their research have been featured on All Things Considered on NPR/BBC/WNYC Radio and in The Star Ledger. Nice work!

Finding the Intersection of American Indian Law and Property Law

 

 

In 2014, the Association of Law, Property, and Society (ALPS) conference was at the Peter A. Allard School of Law at the University of British Columbia and there was a plenary panel on teaching property law.  [NOTE: Shameless plug for the 2017 ALPS Conference at the University of Michigan goes right here!  You can still register!] Joe Singer (Harvard) was one of the participants on the plenary panel, and I distinctly recall Joe saying that every property class should include something on Indian law. Joe's property textbook (like many property textbooks) is true to his comment with a section on the forced seizures of property from American Indian nations.  

Someone who understands better than anyone else the connection between Indian law and property law is Jessica Shoemaker (Nebraska).  Jess and I have been friends for a number of years and she has taught me a good bit about American Indian law and the checkerboard, "emulsified," fractioned property rights held by American Indian tribes.  Jess' latest article, Complexity's Shadow:  American Indian Property, Sovereignty, and the Future, 115 Mich. L. Rev. 487 (2017) continues the scholarly tradition Jess has become known for.  

You don't have to take my word for the strength of Jess' article; Ezra Rosser (American) recently wrote this about the article on JOTWELL:

[The article] does a great job detailing and explaining the web of rules and overlapping governance structures that contribute to the underdevelopment of Indian land. Although Complexity’s Shadow draws upon property theory and the work of scholars interested in legal complexity, the real strength of the piece is just how grounded it is in reservation land restrictions....

Complexity’s Shadow should become, along with Judith Royster’s earlier article, The Legacy of Allotment, one of the go-to sources for scholars interested in the problems of fractionated reservation land. But besides being an article destined to be cited in many footnotes, Complexity’s Shadow should also interest property scholars who ordinarily consider Indian property rights only in passing.…

Shoemaker’s observations of Indian poverty and land tenure complexity is much more nuanced than the kneejerk—make them like us—position of many non-Indians. At the very end of the article, Shoemaker switches from focusing on detailing the nature of top-down land use controls to calling for gradual change based on local experimentation.…

Though Shoemaker largely leaves to future scholars and local communities the work of showing what approaches can succeed in freeing reservation land from its current unworkable complexity, Complexity’s Shadow provides a great foundation for such work, which is crucial if Indian nations are to thrive.

Thanks, Jess, for your contributions! 

 

 

 

 

Oyez, Oyez: Murr comes to SCOTUS (and Georgetown!)

As everyone knows, Murr v. St. Croix County will be heard by SCOTUS on March 20 at 10:00am. Georgetown Law is offering a special treat that afternoon:  the oral advocates for the case--John Groen (counsel for Murrs), Richard Lazarus (Harvard, counsel for St. Croix County), and Misha Tseytlin (counsel for the state of Wisconsin)--will all be at Georgetown Law participating in a forum regarding the case. Peter Byrne (Georgetown) will be moderating the panel, which starts at 3:30pm in the Hart Auditorium.  Anyone interested in attending may RSVP at https://goo.gl/forms/PWPx8rliE9mkRsFj2. 

CFP: Australasian Property Law Teachers Conference

The 14th Australasian Property Law Teachers Conference will be held from 26-29 September 2017 at the Curtin Law School in Perth, Western Australia. The theme for this year's conference is "Beyond Sole Ownership."

In addition to the main conference there will also be a multi-disciplinary workshop on “sharing property" that will be held on 29th September. 

Details of both are available by clicking here. The call for papers page is here.

(HT: Robin Paul Malloy @Syracuse)

Bell and Parchomovsky on Partial Takings of Property

Abraham Bell (Bar Ilan/San Diego) and Gideon Parchomovsky (UPenn) have posted Incomplete Takings (Columbia Law Review) to SSRN. Here's the abstract:

Incomplete takings are vital and extremely common. Yet, they present unique challenges that cannot be resolved by standard rules of eminent domain. In particular, incomplete, or partial, takings may result in the creation of suboptimal parcels, and even unusable and unmarketable ones. Additionally, partial takings create nettlesome assessment problems that do not arise when parcels are taken as a whole. Finally, incomplete takings engender opportunities for inefficient strategic behavior on the part of the government after the partial taking has been carried out. Current partial takings jurisprudence fails to resolve these problems, and, in some instances even exacerbates them. 

In this Article, we offer an innovative mechanism that remediates the shortcomings of extant partial takings doctrines. Specifically, we propose that whenever the government engages in a partial taking, the affected property owner should be given the power to force the government to purchase the remainder (or, untaken part) of the lot at fair market value. Exercise of this power by the private owner would lead to the reunification of the land in its pre-taking form, while transferring title to the entire parcel to a new single owner, namely the government. 

Implementation of our proposal would yield several important benefits: First, it would allow for the preservation of the current configuration of parcels, enabling them to remain highly usable and marketable. Second, it would lower the cost of determining compensation for private property owners and thereby of the adjudication process as a whole, in those cases in which private owners choose to exercise their entitlement to sell the remainder to the government. Third, it would significantly reduce the ability of the government to behave strategically and externalize costs on private property owners. Fourth, it would create opportunities for more efficient planning and land use by the government as the government would be free to re-parcel, develop and re-sell the parcels sold to it.

Rent-to-Own Your Pet! (For a Steep Price!)

Just when you think you've seen everything property transactions have to offer . . . a company in Nevada called Wags Lending is offering credit products to help you rent-to-own your pet! Unforuntately, it appears that a number of the people engaging in these transactions are doing so completely in the dark - often believing they are purchasing Fluffy outright while they are in fact entering into a complicated lease-to-own contract. Check out this article in Bloomberg that explores the issue:

The Sabins had bought their new dog, Tucker, with financing offered at the pet store through a company called Wags Lending, which assigned the contract to an Oceanside, California-based firm that collects on consumer debt. But when Dawn tracked down a customer service rep at that firm, Monterey Financial Services Inc., she learned she didn’t own the dog after all.

“I asked them: ‘How in the heck can I owe $5,800 when I bought the dog for $2,400?’ They told me, ‘You’re not financing the dog, you’re leasing.’ ‘You mean to tell me I’m renting a dog?’ And they were like, ‘Yeah.’ ”

Without quite realizing it, the Sabins had agreed to make 34 monthly lease payments of $165.06, after which they had the right to buy the dog for about two months’ rent. Miss a payment, and the lender could take back the dog. If Tucker ran away or chased the proverbial fire truck all the way to doggy heaven, the Sabins would be on the hook for an early repayment charge. If they saw the lease through to the end, they would have paid the equivalent of more than 70 percent in annualized interest—nearly twice what most credit card lenders charge.

* * * 

“There is just no way I should pay over $5000 for a $2000 puppy,” wrote one customer in an April 2014 complaint collected by the Federal Trade Commission after financing a Yorkshire terrier from a Kennesaw, Georgia, pet store with a lease from Wags Lending. (That complaint and the others that follow were directed at Monterey Financial by customers who had financed high-end pets through Wags Lending.) “The rep … told me the payments I had been making are rental [fees],” wrote another surprised lessee. “For a dog?? They are renting animals?? No way! Yes it's true!”

One cat lover described buying a Bengal kitten from a breeder in Jacksonville, Florida, at a sticker price of $1,700—then learning they were on the hook for 32 monthly payments of $129, or about $4,100. “They explained to me that not only was this not a loan but a lease in which I would either have to continue making these payments or return the animal,” the customer wrote in a November 2015 complaint. “Also this cat is ruining my credit score.”

The complaints raise a valid question: Why would anyone walk into a pet store to buy an animal and decide, instead, to lease?

Check out the full story here. There's been a lot written about the abuses surrounding installment land contracts (check out these articles in the NYT here and here). Also, the Uniform Law Commission is currently working on an installment land contract project and the CFPB has taken an interest in these types of predatory transactions as well. These pet financing contracts, although involving personal/movable property, raise similar consumer protection concerns.  In any event, many of the contracts described in the article above lack many of the basic characteristics of a lease, as pointed out by Margot Saunders with the National Consumer Law Center. I think one of the most egregious parts of the article comes in the way of a quote from the CEO of the parent company of Wags Lending: "Wunderlich . . . hastens to argue that while he profits off high-cost lending, he’s also improving the lives of subprime borrowers." Another gem: 'We like niches where we’re dealing with emotional borrowers,' Wunderlich said."

There are all kinds of legal issues here to deal with. If this is a lease then what sort of legal duties does the lessor owe to the lessee? This looks more like just a loan disguised as a lease with some form of security attached - but with a huge interest rate included and some hidden fees and charges. What warranties does the lessor owe to the lessee as to the condition of the pet? If it's just a lease then obviously the lessor continues to own the pet throughout the duration of the term. Then, of course, there are a ton of issues with disclosure (as evidenced by some of the people interviewed in the story). The focus on subprime borrowers is particularly troubling . . .

Yet another reason to make sure you read the fine print before you sign on the dotted line . . .