November 30th
Outline for Memo
-Statement of Facts
-This is where the facts of Orca go here
-Issue Statement
-Discussion
-Conclusion
-Work on the Discussion section first. This reduces the time to write the memo.
Rules Section Review
-No cases, No facts
General Rules
1.-where did the doctrine originate (cite WA Practice) Stoebuck's
2.-explanation or definition ("occurs when"... in the cases)(needs citation w/pin point from Washington Official Reporter)
3.-list of the elements of constructive eviction (4 of them)
-each is rule and requires citation to authority w/pinpoint
-no single case with all 4, use several
-list all 4 elements, then list cases with ;
Transition (Undisputed Elements)
-Undisputed elements
-Landlord's Act (from previous class notes)
Landlord's Case
The first element, landlord's act, is likely undisputed.
For a constructive eviction to occur, it must be the act of the landlord or someone acting on the behalf of the landlord that is the cause of the interference to the the tenant,
In Orca's case, this element is satisfied because it was Amber, the landlord, who gave permission to Aloha to begin the second shift operation that was caused the paint problems for Orca.
-identify the element and tell that it is undisputed
-provide explanation of the element with citation (pinpoint )
-From case law "Needs to be the landlord or someone acting for the landlord. And that's what caused the interference."
-apply the explanation to the facts of Orca's case
-Notice
-identify the element and tell that it is undisputed
-provide explanation of the element with citation (pinpoint )
-Notice of the interference (tenant required to talk to landlord about interference so landlord has time to remedy)
-NOT about vacating
-apply the explanation to the facts of Orca's case
-Vacate
-identify the element and tell that it is undisputed
-provide explanation of the element with citation (pinpoint )
-Tenant to vacate property within a reasonable time
-apply the explanation to the facts of Orca's case
-Last sentence: Consequently, the only element that Amber can likely dispute is whether the premises are untenantable.
-Amber has the burden of proof, they will raise the issue
Specific Rules for Untenantability (Disputed)
-Discussed 3 in class, write sentence for each one, follow each with a sentence with citation to authority, include pinpoint.
-"... they focused on the severity of the interference, the degree of the landlord's control over the leased space, and the degree of specificity about the interference in the lease."(string cite here)(See signal)
Mottman Mercantile Co v. Western Union Telegraph (1940) 3 Wash. 2nd. 62
----Has definition of untenantable
----Must be used in specific rules
-"...'untenantable and unfit for occupancy,' as used in leases, mean simply a condition which renders the premises unsatisfactory for the normal conduct of the tenant's business;..."
Analogous Case Presentation
-Orca's cases
-Amber's cases
Develop principle based topic sentence to introduce the case based cases
-Better to write a nice intro sentence for each case to show immediately why we are using them
-Explain why the case is important, explain central principle and explain what you have learned
"For instance in Aro Glass, the tenant leased space to use for a used car lot and in the lease, the landlord agreed to correct the deep puddles that occurred on the lot because the tenant knew that this would drive potential customers away. The landlord failed in several attempts to correct the puddles and the tenant moved out. Aro Glass, 12 Wn. App. 6
Arguments
-Orca's Arguments
-Plain
-Analogous
-Policy
-Amber's Arguments
-Plain
-Analogous
-Policy
General Argument Sequence
Plain - gets the argument started
Analogous - most important arguments
Policy - helpful, but think broadly
Plain
-begins with an assertion
-uses the words of the statute or doctrine
-supports assertion using facts of the client's case
-begins with an assertion
Orca will argue that its situation is untenantable... because the Westlake Building is not fit for properly painting yachts, the purpose for which it leased the premises.
-uses the words of the statute or doctrine
to claim constructive eviction the interference must cause the premises to be unfit for their intended purposes John B. Stevens & Co v. Pratt, 119 Wash. 232, 234, 205 P. 10 (1922).
-supports assertion using facts of the client's case
Orca will argue that its situation is untenantable... because the Westlake Building is not fit for properly painting yachts, the purpose for which it leased the premises. Orca told Amber about its specific painting requirements; Amber permitted Aloha to use the chemicals that are causing the poor quality paint finish on the yachts and did nothing to bring the building's air handling system into compliance. As a result, Orca cannot use the premise for painting yachts, the purpose for which it leased the building.
Analogous Arguments
1. Assertion
2. Comparison of Facts
Comparison
-Aro
--tenant identified need to correct puddles
--tenant knew the puddles would drive customers away
--landlord tried to correct puddles
-Orca
--Orca gave specifications to Amber for paint before lease signed and wanted paragraph 9 provision
--Orca knew problems with air, debris, would cause problems
--Amber ignored repeated requests for correction
Assertion
-Orca's situation is more untenantable than the one in Aro Glass. There before signing the lease, the tenant told the landlord that the puddles needed to be eliminated just like Orca gave the paint specifications to Amber and negotiated the clause in the lease about its needs. In Aro Glass, the landlord at least attempted to remedy the problem, but Amber never even attempted to correct the problem with the air handling system.
Comparison
-WA Chocolate
--tenant leased for chocolate storage
--rats came from landlord space to tenant and invaded space ruining beans
--landlord tried to correct and failed
-Orca
--Orca leased the premises for painting yachts
--Amber retained obligation to maintain air handling system in buildings chemicals from aloha ruined paint
--Amber ignored repeated requests for correction
-Assertion
Orca's situation is more untenantable than the situation in WA Chocolate. In the case of WA chocolate, the tenant obtained the lease for a specific use just like Orca leased the space from Amber to paint yachts. In WA Chocolate, the interference of rats from the landlord was so severe that the tenant's property was seized, but Amber's lack of interference caused the paint to ruin on the yachts.
Comparison
-Lindblom
--landlord changed staircase and rented hallway to hucksters
--the hucksters blocked the hallway
--the tenants businesses suffered
-Orca
--Amber allowed a second shift for Aloha without letting Orca know of the extra stress on the air filter
--Orca could not paint yachts and the business suffered
--Amber ignored repeated requests for correction
-Assertion
Orca's situation is more untenantable than the situation in Lindblom. In the case of Lindblom, the tenant's businesses suffered due to the landlord's actions just like Orca's business suffered from Amber's action of allowing Aloha a second shift operation. In Linblom, the landlord changed the staircase without informing tenants, just like when Amber did not inform Orca of the additional shift at Aloha.
Comparison
-John B. Stevens
--tenant asked for warehouses and docks to be repaired
--the landlord promised to repair
--the landlord ignored the repairs
-Orca
--Orca complained to Amber that they could not paint boats
--Amber had an obligation in paragraph 9 to maintain
--Amber ignored repeated requests for correction
-Assertion
Orca's situation is more untenantable than the situation in John B. Stevens. In the case of John B. Stevens, the tenant complained that repairs were needed to the warehouse and docks just like Orca complained to Amber about the need for the air filter to be maintained. In John B. Stevens, the landlord ignored the repairs just like when Amber ignored the repairs for Orca.
-These are quick mash-ups that need more information and flow.
Policy Argument
-Examine reasons why legislature enacted the statute of why the court adopted a doctrine
-use those reasons to support your argument
Why does untenantability have to be there before constructive eviction can be found?
-Avoiding a lease is a serious outcome (need to keep people in leases)
-small problems should not let tenants avoid leases
This is a better argument for Amber.
-tenant can not leaves leases easily
This may not be a good argument for Orca.
-can not force a person to stay in unacceptable conditions
-not a small issue when a property is unusable, it's a serious issue with contract
-landlord must be responsible to tenant
Amber will argue that policy supports its position. Courts require untenability because avoiding a lease is a serious consequence. Permitting tenants to use minor interferences to avoid leases that are no longer economically beneficial to them encourages wrong behavior. Here, Orca located the larger space it tried to obtain in the Westlake Building and at a lower cost, both are economic benefits, Moreover, as state by the paint manufacture, Orca can use Gripp-All1 paint without problem in the Westlake Building.
Mini-Conclusion
-1 or 2 sentences
-include the word untenantable DO NOT include constructive eviction
-predict how the court will rule
-use "hedge word" likely, probably, possibly
-use connector word page 719, 602, 603
-reader should be in agreement due to your previous statements
As a result, it is probable that the court will find that the premises are untenantable.
