PROPERTY (Section 1)
Spring Semester 2013

Landlord and Tenant — Introduction and the Covenant of Quiet Enjoyment
Reading Assignment: Pages 393-400, 441-451

In addition to the assigned reading, you might find it useful to look at three CALI lessons that Professor Jim Smith (University of Georgia) has written.  Three of them relevant for this initial assignment include:  (1) Landlord and Tenant:  An Introductory Lesson; (2) Landlord and Tenant:  Quiet Enjoyment; (3) Landlord and Tenant:  Constructive Eviction. All are available on the CALI CD-Rom or on the CALI website at

1.  Suppose L and T enter into a 3-year written lease, under which T leases a 3-bedroom home from L for $1,000/month. Three months into the lease, T returns home one day and finds that one of the bedroom closets has a lock on it. T calls L, who says "I needed a place to store maintenance supplies for maintaining the home. I moved the stuff from that closet into the other closet (the room in question had two closets); there was plenty of space in the other closet." T asked L for a key to the closet so that T could continue using the closet, but L refused. Unsatisfied with L's actions, T asks you for advice as to what remedies (if any) T may have on account of L's conduct.  What advice would you give T? What additional information would you want to know in advising T what remedy T should pursue?

2. Suppose L and T enter into a 3-year written lease under which T leases a 3-bedroom home from L for $1,000/month. Three months into the lease, T answers a knock on the door and is met by Laura. Laura informs T that she is L's sister and that the two of them own the home as co-owners. She further announces that she intends to move in. She then pushes past T and moves her stuff into the guest room, claiming it as "her room." Does T have any recourse against L? Has L breached the covenant of quiet enjoyment?

3. Consider the situations in note 2, pages 399-400. In which situations would the Landlord have breached the covenant of quiet enjoyment due to the assertion of a paramount title claim?

4. T leases office space on the second floor of a two-story building. Two months into the lease, the elevator breaks. T demands that L fix the elevator; L responds "Use the stairs; you look like you could use the exercise." Can Tenant use this as a basis to terminate the lease? Why or why not?

5. Read Fidelity Mutual Life Insurance Co. v. Kaminsky carefully, and consider the following questions:

a)  There is no evidence that Fidelity hired the protestors, or sought to use the protestors as a basis to harass Dr. Kaminsky into leaving the building. So why is Fidelity, as landlord, responsible for the conduct of the protestors?

b)  The lease in Kaminsky obligated Fidelity to provide building security on Saturdays. What if the lease had not contained this provision, and had instead been completely silent about building security? Do you think the case would have been/should have been decided the same way? Why or why not?

c)  The court doesn't really describe the physical layout of the building in great detail.  To what extent would it make a difference?  Suppose that Dr. Kaminsky had leased the entire building (in other words, suppose that the building contained only Dr. Kaminsky's medical office). If those were the facts, do you think the case would be decided the same way? Why or why not?

6. You leased an apartment for the school year. Turns out, the next door neighbor is selling meth and making noise after midnight, which prevents you from sleeping. You've complained to the Landlord, who responds "If it bothers you, call the police." Can you argue that you have been constructively evicted? Why or why not? What additional information, if any, would be relevant?

7. Consider the problem of the "holdover" tenant discussed in note 6, pages 449-450. Which rule makes more sense as a "default" rule — the "American Rule" (under which Landlord is not responsible for the prior tenant's holdover) or the "English Rule" (under which the Landlord is responsible for the prior tenant's holdover)? Using the analytical framework posed by Judge Posner in note 4, pages 447-448, which rule seems more consistent with the parties' likely unexpressed expectation?