Predict whether a tenant who withheld rent can defeat an eviction, and whether the landlord's notice defense works. You have 90 minutes. To: Associate. Use the File and the Library only, then compare your draft with the rubric and the model answer below.
The assignment
To: Associate. From: Marisol Vega, Supervising Attorney. Re: Ortega Property Management v. Tran. Our client, Ortega Property Management, owns the Alder Court apartments and has sued to evict Kim Tran for nonpayment of two months' rent. Ms. Tran says the unit was uninhabitable and that she may withhold rent. Please write an objective memorandum that predicts how a Franklin court will rule on (1) whether Ms. Tran may assert a breach of the warranty of habitability, and (2) whether she may withhold all rent or only part of it. Use only the authorities in the Library. Do not restate the facts at length. Discuss the strongest arguments each way and give your prediction.
File
Interview notes: Ortega Property Management
Ms. Tran leased Unit 4C at Alder Court from March 1 for $1,400 a month under a one-year lease. Ortega's manager, Bruce Halloran, says the unit had a working heater and running water when she moved in. In October, the boiler serving 4C and five other units failed, and there was no heat or hot water. Ms. Tran left a voicemail on October 9 and sent an email on October 12. Ortega hired a repair company on October 20 and the boiler was fixed on November 3. Ms. Tran paid no rent for November and December. She says she lived in the unit throughout and used a space heater. Ortega says she never gave written notice in the form the lease requires, which is certified mail.
Lease excerpt
Section 9: Tenant shall give notice of any defect by certified mail to the Landlord's office. Section 10: Tenant shall pay rent on the first of each month, without deduction or offset. Section 14: This lease does not waive any right that Franklin law gives the Tenant.
Email from Kim Tran, October 12
Mr. Halloran, the boiler is broken. We have had no heat or hot water since October 8. It is 41 degrees at night. Please fix this right away. If it is not fixed this week I will have to hold back my rent until it is. Kim Tran, 4C.
Library
Housing Code, section 22-104 (Franklin)
(a) Every landlord of a residential dwelling warrants that the premises are fit for human habitation. (b) A dwelling is not fit if it lacks heat, running water, hot water, or another essential service, or if a condition seriously affects the health or safety of the occupants. (c) A tenant may not waive the warranty. (d) A landlord is in breach if, after actual notice of a condition that violates this section, the landlord fails to repair within a reasonable time, which is presumed to be 14 days for the loss of heat or water.
A tenant sued for breach of the warranty of habitability after her landlord failed to repair a broken furnace for six weeks in winter. The landlord argued that the lease required written notice by certified mail and that she gave only an oral complaint. Held: for the tenant. The warranty in section 22-104 is not subject to a lease's notice formalities, because a tenant may not waive it. Actual notice, in any form, triggers the landlord's duty to repair. The tenant may raise the breach as a defense to a suit for rent. Damages are measured by the difference between the rent and the value of the premises in their defective condition, and a court may find that value is zero if the premises were unlivable.
Sandoval v. Pike Street Lofts, 47 Fr.3d 88 (Fr. Ct. App. 2016)
A tenant stopped paying all rent after the elevator in a six-story building broke for three weeks. The trial court found the unit habitable and that the tenant used it throughout. Held: for the landlord on the rent claim, because a tenant who remains in possession and receives substantial use of the unit owes rent reduced by the value of what was lost, and may not withhold all rent unless the unit is unfit or unusable. An elevator outage did not make the apartment itself unfit under section 22-104. The court noted that where an essential service such as heat is lost, the tenant's use may be greatly reduced, and the reduction is a question of fact.
What graders look for in this task
Graders score a response against these criteria, and every one of them depends on using only the facts in the File and only the rules in the Library, so treat the list as a check for your draft after the first pass and again before you stop writing.
States that section 22-104 makes heat and hot water essential services and that the boiler failure violated it
Applies Cormier to hold that actual notice by voicemail and email triggers the duty despite the certified-mail term
Finds that the landlord failed to repair within the presumed 14 days
Recognizes that Sandoval limits a tenant who stays in possession to a rent reduction unless the unit was unfit or unusable
Distinguishes Sandoval because loss of heat and hot water is a loss of an essential service, unlike an elevator
Predicts the tenant can raise the warranty as a defense and likely owes reduced rather than zero rent, with damages a fact question
Writes in an objective, balanced tone and addresses the landlord's best arguments