My Life

When a lawyer serves as a third party neutral, it means the lawyer assists two or more persons who are not clients to reach a resolution in a dispute.

Many of us get asked whether we can sue our landlord. There is often not a day that goes by that I do not here someone say “that’s illegal I can sue him for that!”. 

However, the law draws boundaries. It provides landlords with remedies when tenants mess up, and tenants with remedies when landlords mess up. Property law takes care of everything. 

Here this issue for determination is the tenant duties and landlord remedies.

Tenants have a duty (1) not to commit waste upon leased premises, (2) to not use the premises for Illegal purposes, (3) to pay rent.

(1) Duty not to commit waste. 

There is voluntary/affirmative waste, permissive waste, and ameliorative waste. Should the tenant produce any ameliorative waste the tenant is liable for the cost of restoration. However there is a modern exception which states that when through the passage of time the demised premises have been significantly reduced in value, courts will permit a change in the character of the premises as long as (1) the change increases the value of the premises, (2) the change is performed by a long term tenant, and (3) the change reflects a change in the nature and character of the neighborhood. 

Whenever the premises are destroyed without fault of the landlord or the tenant, no waste is involved. The majority view now gives the tenant an option to terminate the lease if the premises are destroyed without the tenants fault, even in the presence of an explicit covenant to repair.

In residential leases, even if the tenant covenants to repair, the landlord will usually be obligated to repair (except for damages caused by the tenant) under the implied warranty of habitability because the landlord’s obligations under that warranty are usually held not be waivable. However in nonresidential leases the tenant’s covenant to repair is enforceable, and a landlords claim that the tenant breached the covenant will be assessed by comparing the property’s condition when the lease terminates with is condition when the lease commenced.

(2) Duty to not use the premises for an illegal purpose.

If the tenant uses the premises for an illegal purpose of which the landlord is not a party to, the landlord can terminate the lease or obtain damages and injunctive relief. The duty is only breached when the illegal activity is continuous not sporadic. If the conduct is continuous the landlord may terminate the lease and recover the damages. If the police stopped it, the landlord may terminate and recover but only if within a reasonable time.

(3) Duty to Pay Rent

Most states today have statutes that provide that if a leasehold terminates before the term originally agreed on the tenant must pay a proportionate amount of the agreed rent. With rent deposits, if the money is considered a security deposit the landlord will not be permitted to retain it beyond the extent of his recoverable damages. But if the deposit is a bonus or future rent payment (the last months rent) then most courts permit the landlord to retain it after the tenant has been evicted. If a tenant effectively surrenders his leasehold to the landlord the tenants liability for future rent ends. Normally this occurs when there is an agreement between the landlord and the tenant and the tenants interest in the demised premises will end. If the unexpired term of the lease is more than one year, the surrender must be memorialized in writing to satisfy the statute of frauds.

If the tenant is on premises but fails to pay rent the landlord can evict or sue for rent. In other states the landlord can place a lien on the personal property of the tenant found on the leased premises. If the tenant abandons the landlord can do nothing or repossess. In this instance if the landlord does nothing the tenant remains liable. If the landlord repossesses the tenants liability depends on whether the landlord accepts surrender by the tenant. 

The actions of a corporation are governed by corporate statutes, the charter or articles of incorporation, and the bylaws.

The shareholders, directors, and officers actions are governed by those documents. 

Directors have certain rights bestowed upon them or requirements they must meet according to these documents. The documents are fairly scarce when it comes to imposing qualifications for a board of directors or a single director.

The bylaws are what do a lot of the work here. They bylaws will dictate the size of the corporations board, or provide the means by which the size will be set. The MBCA and DGCL both allow for boards consisting of one single director, and do not dictate any qualifications for a director, but a corporation can impose them in the charter or bylaws.

The governing documents usually address Board Actions, Elections of Board Members, Terms, Removal, Filling Vacancies, and Committees.

Board Actions

Directors have regular meetings and special meetings. The regular meeting and special meeting dates are specified in the bylaws. These meetings must comply with the notice and quorum requirements, just as with shareholders. However, Delaware statutes does not have a default provision for this, so a corporation does not even have to address this if they incorporate in Delaware. A majority of directors constitutes quorum, and both MBCA and DGCL allow for the board to lower quorum requirements through the bylaws to as little as one third of the directors. A board can also act through written consent if in person meetings are not accommodating. Usually as with shareholders, if voting by written consent, there is a unanimity requirement for anything to be binding, but that can be addressed and changed in the governing documents.

Elections

Usually directors are elected by shareholders through straight voting. Straight voting is defined as each shareholder casts the number of votes they have for their preferred candidates for the board seat up for election. Cumulative voting must be opted in.

Terms

The default term is one year. Alternatively they can use a staggered board. If this is used each directors term runs three years with one third of the board coming up for election each year. 

Removal

The actions of corporations are governed by (1) corporate statutes, (2) the charter or articles of incorporation, and (3) the bylaws.

The main groups within a corporation whose rights are governed by those documents are the directors, the officers, and the shareholders.

Each group gets specific protections and rights bestowed upon them from each of these documents. Here we are talking about shareholders.

Shareholders, because they are issued equity--a slice of the company--when they buy stock, are regarded as the owners. Generally, shareholders have the right to vote on the election and removal of directors, the sale of substantially all or all of the corporations assets, shareholder initiated amendments to bylaws, any charter amendments, and dissolution.

The main categories of shareholder rights which need to be addressed by any of the governing documents are (1) general voting abilities, (2) meeting requirements, (3) proxies, (4) written consents, (5) class voting, and (6) voting requirements.

In addition to the previously mentioned voting rights, corporations can grant shareholders additional rights which must appear in the charter or bylaws, depending upon what the jurisdictions corporate statutes have to say about the right in question.

Corporate statutes require that annual shareholder meetings be held, unless the directors are elected by written consent. The main way an action is binding is through in person voting. The other way is through written consent. Written consent is where the shareholders receive the equivalent of an absentee ballot and mail in their vote for a director. Shareholders can also hold special meetings for issues that cannot wait until the next annual meeting. 

At these annual meetings, for any shareholder initiated action to be binding, proper notice must be provided to the shareholders of the meeting, and the proper quorum must be present.

In MBCA states, if the shareholder is present, and proper notice has been given, a simple more votes for than against will allow an action to be binding. In Delaware, a majority of quorum is required for an act to pass. However for the election of directors, a plurality of the votes determines the winner.

If the shareholder does not want to physically attend the meeting or cannot attend, they can vote by proxy. A vote by proxy allows a person specified and granted the power to vote on behalf of the person. They do not decide for them, but rather vote for them and it is as though the shareholder was present for purposes of quorum.

Symbolic speech is a combination of conduct, which is not protected by the first amendment, and speech, which is protected by the first amendment.

A nonverbal act which is expressive will count as speech.

The First Amendment to the Constitution guarantees the right of speech. The First Amendment says Congress Shall not abridge the right of speech. 

A law can abridge the right of speech under the doctrine of subject matter discrimination. Under the doctrine of subject matter discrimination, a law will be subject to strict scrutiny and likely struck down if it discriminates on the basis of the subject matter of the speech rather than regulating the secondary effects of the speech. 

To regulate the secondary effects of the speech was explained in City of Renton v. Playtime Theatre. Playtime, an adult cinema, challenged the City’s law which said that any adult cinema must be located 1,000 feet away from any school, church, and other specified buildings. The city’s reason was because the presence of an adult cinema lowered property values and endangered the lives of children because of the adult cinema’s clients. The law was upheld under strict scrutiny because the law did not discriminate against the pornographic films the adult cinema was showing. Rather it was regulating property values and the safety of its citizenry, both of which are compelling government interests, and the means were narrowly tailored to this specific instance. 

To discriminate on the basis of the subject matter is explained in Discovery Network v. Cincinnati. In that case, Cincinnati claimed it wanted to enhance the aesthetics of public sidewalks by eliminating those news bins which contained advertisements. But Cincinnati permitted news bins which contained newspapers. The difference made little sense to the supreme court since both the bins looked alike, in that they were both aesthetically unappealing. The court reasoned that the speech in the form of advertisements was being discriminated against because of its content since the newspaper bins were almost identical. 

An easy way to spot subject matter discrimination is when there is a group of people which should be treated the same, but one person within the group is being deprived of a certain activity which everyone else is allowed to engage in.

The First Amendment says that Congress shall not abridge the right of speech. This right was extended to those governed by state and local governments in a case called Gitlow v. New York.

A law can abridge the First Amendment right of speech if it is defective. If it is defective it is unconstitutional. A law can be defective because it is unduly vague. What means unduly vague was explained in Coates v. Cincinnati. A law is unduly vague if a reasonable person cannot tell what activity the law prohibits. In Coates v. Cincinnati, the city of Cincinnati passed a law stating that three or more people could not annoy others. The law was unduly vague because a reasonable person could not determine was constitutes annoying others. It could be anything. What annoys one person will not necessarily annoy another person. Common knowledge will tell us that. 

The term unduly is important here. Every law is vague in some way or another. But to be so vague that the law is found unconstitutional, it must be so unnecessarily vague that a reasonable person will not be able to tell what activity is prohibited. That is what makes a law unduly vague.

The First Amendment to the United States Constitution establishes a right of speech. It states that Congress shall not abridge the right of speech. That right was later on extended to those governed by state and local governments through a case called Gitlow v. New York.

If a law abridges the first amendment, it is unconstitutional. A federal, state, or local law can abridge the right in many ways. One of those ways is if the law is defective. A law can be defective because it is substantially over broad. A law is substantially over broad when it prohibits substantially more speech than what the first amendment allows. The meaning of that was defined in both LAX v. Jews for Jesus and Schad v. Borough of Mt. Ephraim. 

In LAX v. Jews for Jesus, a law was passed which sought to prohibit religious groups from soliciting airport travelers for donations at their departure gate. The law clearly stated that “No First Amendment Activity is Permitted at any terminal.” The law was found to be substantially over broad because it would criminalize even the slightest conversation or quick exchange of pleasantries between travelers. 

In Schad v. Borough of Mt. Ephraim, a law was passed which clearly stated “All forms of live entertainment are banned within the Borough of Mt. Ephraim.” The law was passed to keep young underage boys from visiting cheap strip clubs within the Borough. The law was defective and therefore unconstitutional because it criminalized even minor forms of entertainment such as someone playing their instrument on a street corner for donations.