Book-briefing (multi-colored highlighting and notes in margins) is sufficient for class. I've never used canned briefs, but I don't think I'd want to use them in lieu of book-briefing, since book-briefing helps me concentrate on what the court is saying, and when I do get called on in class, I'm looking at the full text of the opinion, in the court's original words, just with my own highlighting and notes to flag what seemed important when I read it.
My outlines for final exams have little descriptions of important cases in them, but they're generally just enough to jog my memory and point me back to the page # of the actual case. Sometimes I just cite the name of the case as an illustration. Sometimes if the discussion was particularly extensive I describe what was talked about. But none of them fit the formal definition of a "brief." I start making these outlines in the middle of the semester and finish them up during finals week.
D. When Tenant Breaches Lease
1. Accept surrender
- Landlord can sue for expectation damages: difference between rent and fair market rent, and cost of finding new tenant
2. Refuse to accept surrender
a) Re-let on the tenant’s account
- Landlord must notify tenant that surrender wasn’t accepted
- Tenant obligated to cover any rent that landlord can’t find someone else to rent the apartment for
b) Don’t re-let
- Traditional rule was that landlord could wait and sue tenant for all of the back rent. A lease was a transfer of a temporary interest in property. Some states still follow traditional rule.
- Many states no longer allowing this – duty to mitigate (contract law)
3. Sommer v. Kridel, p. 762, NJ, 1977
- Tenant backed out of a 2 year lease. Landlord waited 15 months before re-letting the apartment, even though he had people willing and able to rent it.
- Lease is a contract – duty to mitigate
- Landlord has burden of proof of “reasonable diligence” in finding a replacement tenant
4. Is the duty to mitigate unfair to landlords, who bargained for the right not to have to look for a new tenant? Or does it promote efficient use of property? P. 768
A. Agreement to Agree
- Parties leave some terms open because they don’t have time or adequate information to negotiate them before signing
- Majority rule: will enforce agreements to agree because the parties intended to be bound (UCC 2-305 on “open price terms”, § 33 commentary)
- Minority rule (traditional): won’t enforce such agreements because it isn’t the court’s job to make the K for the parties (Walker v. Keith)
E. Rent Control
1. Braschi v. Stahl Associates, p. 770, NY, 1989
- 2 gay men lived together in a rent-controlled apartment for 11 yrs. Man with the right to the apartment died. Apartment complex wanted to evict the other man, Braschi.
- If Braschi was a spouse or family member of the man who died, then he would have the right to the apartment under rent control.
- Purpose of the provision against evicting family members is to keep them from losing their homes when someone dies. Not like intestacy laws.
- Look at “family” in practical terms, not biological or legal terms. From that perspective, Braschi and his partner were family. So the apartment complex can’t evict Braschi.
- Dissent: this definition of family is going to create litigation and inconsistency. Up to legislature to let gays marry. The provision against eviction is more like inheritance law, which doesn’t recognize gay partners.
- After Braschi, legislature added a provision to the rent-control statute to provide for situations like that