PROPERTY FALL 2001
PROFESSOR CARBONE EXAM REVIEW
Overall comments: This paper combines systematic coverage with a high level of sophistication in the analysis. It is a classic "A" paper in that it is shorter than most of the other high grade papers in the class. It achieves this economy by 1) coming to quick conclusions with respect to the issues that have a certain outcome; 2) developing the less certain issues by identifying issues/responses/counter-responses in rapid succession. In reviewing this paper, I have tried to call attention to the number of issues and subissues in certain paragraphs by writing (1), (2), (3), (4) inside some paragraphs, and referring to the contrasts, and issue/response sequences I found particularly effective in the left margin of the paper. The numbers below correspond to the written numbers in the right margin of the paper.
1. This is a good example of the development of sophisticated analysis through the use of alternative arguments. The use of double rents in the statutes of some states is an excellent argument for the presumptive validity of the lease clause. The response -- that a LL imposed penalty is more likely to reflect unequal bargaining power than a legislatively mandated clause -- both argues that legislative practice in another state should not be controlling and introduces a new subissue (unequal bargaining power). The reply (freedom of contract) and the counter-reply (bargained for exchange v. form contracts) raise additional considerations. The result, which integrates policy issues with the facts of this case, is coverage of more issues with greater complexity than any other comparable discussion in the class.
Limitations: A. I would have preferred a conclusion that evaluated the arguments and indicated which were stronger. Nonetheless, this answer gave some guidance in indicating that the distinction turned on the emphasis the jx. placed on freedom of contract.
B. The double-rent statutes use it as a penalty for those who holdover without a new lease, not as the rent governing a new lease period. I was not fully certain how this student treated the issue, but suspect at least confusion, and probably error.
2. Clause 3. Again, this discussion covers a lot of ground in a short amount of space contrasting opposing arguments. The first two sentences contrast a blanket waiver of liability with these provisions, noting as well the suggestion of a bargained for exchange. The third sentence notes the limited nature of the tort waiver. The rest of the paragraph addresses the central issue of whether the $1000 amount is too high and therefore unconscionable, considering the fact that there may have been no real bargain in fact.
In many papers, students list arguments without evaluating them. This paragraph is subtly different and substantially stronger. First, it does not say "LL will argue." Instead in describing the arguments, it gives some suggestion as to how strong they are, generally by contrasting a strong argument with a weaker one, or distinguishing a clear loser for the LL from the present facts that present a closer case. So while there is no strong overall conclusion, there is an evaluation taking place. [Note the contrasts, and issue/response pairs identified in the margin.]
Limitations: The unconscionability argument rests on the cumulative effect of many repairs. That issue is not expressly mentioned.
3. Strength: separates the issues re: number of residents from family status, as two distinct issues. Limitation: like most answers did not acknowledge that family status could affect financial responsibility, credit issues.
4. Assign or sublet. This is an open and shut issue, and the student clearly recognizes it as such. Limitation: The idea of alienation applies to residential as well as commercial properties, but has been limited in the context of the specific issue of the need for good cause, which is not implicated here.
5. The student covers a large amount of ground by quickly summarizing points about which there is no dispute. This is clearly a holdover tenancy, the landlord has not objected, and a new lease has come into existence either as month-to-month or for another year. While I would have preferred a little more discussion of this point, the only further observation worth making is that jurisdictions are split, with some indication of a modern trend toward month-to-month. [The handwritten numbers written on the answer indicate different issues for which I gave credit; the letters, e.g., 2(a), indicate subissues.
Strength: The student makes the most important and subtle argument; viz., that Second may have had a new tenancy rather than an assignment or sublease, and correctly notes that First has abandoned, making his intent unclear, but suggesting either an assignment or a new tenancy
6. Again, by alternating arguments, very quick discussion of several points: waiver of violation of the clause against assignments, new tenancy may be terminated with 30 days notice, strongest argument for tenant: assignment of 1 year tenancy, rest of the clauses are independent.
7. Discrimination: Most students argued there was discrimination. A well made argument that there was not therefore gets substantial credit. Here, the student discusses issues in the alternative, including the issue of the definition of the class, alternative ways of defining the issue, and if discrimination is inferred, the LL's possible responses. [The numbers on the page refer to the different issues for which I gave separate credit.
8. The discussion of damages is only part right, but it is so comprehensive that it gets substantial credit. The correct answer is that if a T is aware of leaking pipes, the leaking pipes are causing damage, and the T can stop the leaks, the T's failure to do so may be waste, and the T may be liable for damages irrespective of the lease. In addition, the lease explicitly placed the responsibility on the T to notify the LL, and to make repairs such as this. The student in this case correctly noted (1) the T's duty to notify the LL and (2) the fact that the failure to act may constitute waste. The answer also correctly raises issue (3): T's responsibility for lease provisions of which she was unaware and to which she did not agree. The waste argument, however, is independent of the lease provisions, and the conclusion to the paragraph discussing (3) "Regardless, she caused the damage, so should be responsible to pay for them" contradicts the last two sentences on the page, which suggest that the LL can only collect from First since T never agreed to make repairs. I would nonetheless have given the answer substantial credit because it does treat the waste issue as separate from the duty to notify, and from the lease (even if inconsistently), and it raises both the issue of whether the lease can be applied to Second or, in the alternative, to First.
9. This paragraph provided an evaluation and conclusion of the issue raised on p. 5. It would be much stronger if the conclusion followed the analysis of the issue on p. 5 rather than be stuck in the middle of a discussion of other issues.
10. Whether or not there has been a violation of the IWH is an obvious issue that many students did not discuss. It is particularly important here because it may not have been violated. This student identifies the issue, and comes to the better answer -- no violation. The answer raises one possible response (structural soundness), but not the potential health issue (mold).
11. This is a perfunctory, but sufficient, discussion of the failure to notify.
12. This is not the strongest discussion of waiver in the class because it conflates the question of whether the jx would ever permit a transfer of responsibility to the tenant with the facts of this case, where the dollar amount ($1000) is relatively high, the lease may not be a true bargained for exchange, and this appears to be a large apartment bldg. in an urban area. Nonetheless, it again covers almost all of the relevant arguments, and uses the facts effectively, so it receives substantial credit.
13. It was important to raise retaliatory eviction, and this discussion makes the important point that retaliatory eviction may provide the tenant with protection if the LL refuse to renew a month-to-month or other tenancy. Nonetheless, this argument would have been stronger if considered in light of the LL's ability to terminate the lease before the tenant withheld rent.