Commercial Evictions

What are a Landlord’s Options When Evicting a Tenant?

The components of an eviction action are straightforward: agreement, default, three day notice, an no cure of the default. A landlord has different options on how to proceed with a commercial eviction depending on which remedies it chooses. There are three possible remedies: 1.) terminate the lease and retake possession of the premises, 2.) retake premises for the account of the tenant without terminating the lease, or 3.) do nothing and hold the tenant liable for the rent as it becomes due.

Non-Monetary Evictions

A tenant can be evicted for reasons that aren’t related to the non-payment of rent. There is what is what is known as the “non-monetary eviction” portion of statute§ 83.20(3) which provides:

Where such person holds over without permission after failing to cure a material breach of the lease or oral agreement, other than non-payment of rent, and when 15 days’ written notice requiring the cure of such breach or the possession of the premises has been served on a tenant. This subsection only applies when the lease is silent on the matter or when the tenancy is an oral one at will.

What Pre-Suit Steps are Involved?

Evictions are statutory processes that require adherence to certain steps in order to avoid problems down the road. Therefore a landlord should consider the following steps before evicting a tenant:

1. First things first. Look at the lease and determine what notices are required under the lease. The notice provisions of the lease will be considered, at a minimum, conditions precedent to the institution of the action.
2. Draft the notice in compliance with Fla. Stat. § 83.20 with regard to the “minimum requirements” for evictions for non-payment of rent. After you have done so, compare Fla. Stat. § 83.20 with the lease, and add in those more restrictive provisions as set forth by the lease.
3. Draft the demand for rent or possession. The notice should contain any other requirements of the lease. The “amount of rent demanded” should include only those amounts defined as “rent” under the lease. The notice may be legally insufficient if it demands more than is deemed to be “rent” under the lease. Likewise, failure of the notice to demand possession upon failure to pay the rent will cause the notice to be deficient.
4. Service of notice. A process server serves the three day notice and returns an affidavit of service of the notice. The notice is then attached to complaint along with the service.
5. The Complaint is drafted.

Must a Landlord Mitigate its Damages?

The important issue of mitigation often comes up in commercial eviction proceedings. Despite some confusion, Florida law is clear that a landlord has no legal duty to mitigate damages unless it retakes possession for the tenant’s account. Despite this, judges are reluctant to hold tenants responsible for vacant space and landlords often will attempt to mitigate. Mitigation reduces the landlord’s financial exposure and presents a more favorable impression to a court. Regardless of whether mitigation is pursued, it is the actual use of the leased space after re-taking that determines whether landlord has retaken possession for its own benefit or for the benefit of the tenant. The express intent of the landlord not to accept a surrender of the lease is an important factor in finding that no surrender occurred, so many landlords will follow up a re-taking with a communication to the tenant advising the tenant that the retaking was merely for the benefit of the tenant (and not the landlord).

Can a Landlord Accelerate the Payments Due Under the Lease Agreement?

A landlord may accelerate the remaining payments due under the lease if the lease contains an acceleration clause permitting it to do so. Exercising an acceleration clause also brings due all remaining rent, however doing so may prevent the landlord from demanding possession of the premises.

Can a Landlord Be Awarded Double Rent?

The landlord has an additional “hammer” in that it can demand double rent from a holdover tenant pursuant to Fla. Stat. § 83.06. A hold over tenant is a renter who continues to remain on the property after the lease has expired. Double rent is not automatic. Usually double rent is demanded separately in a letter to the tenant prior to filing suit.

Can a Tenant Raise Defenses?

A tenant generally has a right to raise defenses in any eviction although the law provides that the tenant is required to deposit the amount of rent in dispute into the court registry in order to raise defenses. This requirement is strict and is sometimes called the “pay to play” rule. Wrongful evictions may provide a complete defense and may give rise to a counterclaim for damages against the landlord. They generally fall into one of the following categories:

1. Self-help. A landlord resorting to self-help creates, among other causes of action, a cause of action for wrongful eviction.
2. Breach of covenant of lease by landlord. Leasing space in a shopping center to a competing merchant when the first merchant had an exclusive right to that type of business in the shopping center constitutes a constructive eviction. Removing a sign provided for in the lease is construction eviction.
3. Excessive noise. Excessive vibrations and noise can constitute a constructive eviction if the affected tenant can no longer conduct its business.
4. Renovation and/or construction. Extensive work constitutes a constructive eviction under some circumstances.
5. Failure to fix. If the lease so provides and the landlord has the obligation to make repairs, failure to fix can constitute a constructive eviction.
6. Lack of access. Changing the locks or otherwise denying the tenant access to the premises clearly constitutes a constructive eviction.

Summary Procedure

Trials for possession are entitled to the benefits of the summary procedure chapter, 51, pursuant to Fla. Stat. § 83.21. The summary procedure statute is incredibly short, but does (contrary to popular opinion) provide for jury trials. Therefore, a landlord must examine the lease in question to determine whether it contains a waiver of jury trial provision. There is no provision for motions to dismiss under the summary procedure chapter, and case law holds a motion to dismiss will be deemed a general denial and will not, under the summary procedure chapter, delay the matter being set for trial.

Landlord’s Lien

A landlord has a statutory lien for unpaid rent, even if the lien is unrecorded. Additionally the landlord has a lien on all other property of the lessee or his or her sublessee or assigns, usually kept on the premises. This lien shall be superior to any lien acquired subsequent to the bringing of the property on the premises leased. This lien becomes effective upon commencement of the lease or the first bringing of property onto the leased premises, even if the property later becomes subject to another lien. If the landlord is concerned the property may be removed from the premises prior to the conclusion of litigation, the landlord may file for a distress writ pursuant to Fla. Stat. § 83.12.

Do You Have a Commercial Lease Dispute?

Lawsuits involving commercial leases require a trained eye and courtroom experience. Mr. Pascale regularly assists commercial tenants and landlords in eviction lawsuits. If you find yourself embroiled in a dispute or lawsuit involving a commercial lease, contact Mr. Pascale now.