O'Neill, Liebman & Cooper, P.A.
Commercial Eviction Actions
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COMMERCIAL EVICTION ACTIONS

 

2002, Mark O. Cooper

I.          NONPAYMENT OF RENT

There can be no doubt that most eviction proceedings arise as a direct result of the tenant’s failure to pay refit as agreed. The landlord’s remedy is statutory, and strict attention needs to be paid to the provisions of Florida Statutes Chapter 83. As a precondition to a suit to evict for nonpayment of rent, the landlord must give a three-day notice in writing requiring the payment of rent or the tender of the possession of the premises. Florida Statute 83.20(2). A proposed three-day notice is as follows:

Date:

 

THREE-DAY NOTICE TO PAY RENT OR GIVE POSSESSION

 

To:          NAME

ADDRESS

Orlando, FL

 

Dear Sir or Madam:

 

You are hereby notified that you are indebted to the owner of the above-addressed premises in the sum of $ _____________ for rent (including sales tax), and use of the premises located as addressed above, in Orange County, Florida, now occupied by you, and that this is demand for payment of the said rent or possession of said premises within three (3) days (except Saturdays, Sundays and legal holidays) from the date of delivery of this notice, to-wit: On or before the ________ of ______________________ , 2002

.

If legal action is initiated against you, you may be held liable for attorney’s fees and court costs.

 

If the owner re-enters the demised premises, such re-entry is to mitigate damages. Such re-entry shall neither constitute a rescission of the lease nor an acceptance or surrender of the leasehold estate.

 

This notice is given to you pursuant to Section 83.20, Florida Statutes.

 

Name of Landlord

By: ________________________________

       Signature

 

C:

 

(  ) Posted on front door of demised premises on the _____ day of ____________, 2002 as the Tenant was absent.

(  ) Delivered to ______________, at the demised premises, on the ______ day of_________ 2002.

(  ) VIA CERTIFIED MAIL -

 

The statute requires that the notice be served on the tenant by actual delivery, or if the tenant is absent from the premises, by leaving a copy at the premises. Before serving the notice, however, the lease must be reviewed to determine whether any special notice provisions are contained within it. Copies of the three-day notice to quit should be provided to all of those specified within the lease document. Additionally, although not specifically required by the statute, the notice should be delivered by certified mail, return receipt requested. If the notices are hand-delivered, the individuals making delivery should prepare and sign an affidavit similar to that completed by process servers. As a result, you will be able to prove delivery of the three-day notice to quit.

If the tenant fails to respond to the notice within the requisite time, a complaint may be filed “stating the facts which authorize the removal of the tenant” and seeking summary procedure. Florida Statute 83.21. A proposed complaint is set forth.

IN THE COUNTY COURT IN AND

FOR ORANGE COUNTY, FLORIDA

CASE NO.

 

{NAME OF PLAINTIFF],

 

Plaintiff,

vs.

 

[NAME OF DEFENDANT],

 

Defendant.

_________________________/

 

COMPLAINT FOR

EVICTION AND UNPAID RENT

 

COUNT I[MOC:cka1] 

 

Plaintiff sues the Defendant(s) and alleges:

 

1.        This is an action to evict a tenant from real property located in County, Florida.

 

2.        Plaintiff owns the real property which is described in the lease attached hereto as Exhibit “A” and incorporated and referenced herein, and said real property is located in ______________ County, Florida.

 

3.        Defendant, _____________________, has possession of said real property under a written lease agreement, a copy of which is attached hereto as Exhibit “A” as referred to above, and has agreed to pay $______________ per month as rent, all as set forth in said  lease, and due on the ___________ day of each month under the terms of the lease.

 

4.        Defendant has failed to pay rental due for _______________ A three-day notice to pay rent or deliver possession and terminating the tenancy pursuant to Florida Statutes Chapter 83 was furnished to the Defendant, but Defendant has refused* to deliver possession or make timely payment of said rent. A copy of said notice is attached hereto and incorporated by referenced herein as Exhibit “B.”

 

5.        The Plaintiff has elected to recover possession of the property because of the Defendant’s default for nonpayment of the rent and seeks summary procedure as allowed by Florida Statutes Section 51.011 and which is specifically allowed in the Florida Statutes Section 83.21.

 

6.        Plaintiff has retained the law firm of to represent its interest in these proceedings and has obligated itself to pay said law firm a reasonable attorney’s fee and court costs, which fees and costs are recoverable from the Defendant pursuant to the terms of the lease.

 

WHEREFORE, Plaintiff demands a judgment for possession of the property, plus all court costs and a reasonable attorney’s fee.

 

DATED this ______day of ___________________, 2002.

                                                                                                       ____________________________

(Name and address of attorney)

 

 

Florida Statute 83.21 provides that landlords may utilize the summary procedure set forth in Florida Statute 51.011. This section provides, most significantly, that all defenses of fact or law must be contained in the Defendant’s answer which must be filed within five (5) days after service of process. To further assist landlords in obtaining special remedies, special rules apply with regard to the service of process. After two (2) unsuccessful attempts to obtain service by ordinary means, landlords are permitted to serve a tenant by posting the premises. In this event, the landlord must provide the Clerk of the Court with two (2) additional copies of the complaint together with pre-stamped envelopes addressed to the Defendant. The Clerk will mail these copies to the address designated in the lease and the last known business address of the tenant and will then file a certificate in the Court file evidencing the fact of mailing. Service of process will be deemed to be effective on the later of the date of the posting of the premises or the mailing by the Clerk, and at least five (5) days must pass from the date of service before final judgment will be entered. Florida Statute 83.22.

 

II.        FOR CAUSES OTHER THAN NONPAYMENT OF RENT

 

Commercial leases create substantial duties on a tenant over and above the obligation to pay rent. Obligations typically exist with respect to maintenance of the property, signage, use of the premises, and a great many lesser issues as well. The tenant’s failure to comply with these issues may result in a non-monetary breach which, if uncured, will warrant eviction. While the basic procedures for eviction are identical for both monetary and non-monetary breach, the landlord’s pre suit requirements may dramatically differ.

 

Most commercial leases provide for notice to be given to the tenant in the event of non- monetary breach. Typically, these lease provisions provide the tenant with reasonable notice and an opportunity to cure. The lease agreement must be carefully reviewed, to confirm that the tenant’s action is prohibited, and, additionally, to confirm the notice required be the lease. If the lease speaks to the issue of notice of non-monetary breach, the notice provisions of the lease must be met. If the lease is silent on this issue, as a precondition to a suit to evict, the landlord must provide fifteen (15) days written notice requiring cure of the breach or the tender of possession. Florida Statute 83.20(3). This notice should be served in the same manner described above for the service of a three-day notice to pay rent or tender possession.

 

If the tenant fails to cure the defect or tender possession as required by the notice, the landlord may institute a suit to evict. The form complaint set forth above should be modified so as to as to state “the facts which authorize the removal of the tenant.” Florida Statute 83.21.

 

III.       SELF HELP EVICTIONS

 

The rule is simple - DON’T DO IT. Florida Statute 83.21 provides that a landlord seeking the removal of a tenant “shall file a complaint with the Court seeking eviction.” Florida Statute 83.21 (emphasis added). This statutory procedure for the removal of tenants is mandatory, and landlords who oust tenants without complying with the statutory procedures will be liable for wrongful eviction. Sheradsky vs.Basader 452 So.2d 539 (Fla. 3rd DCA 1984). In the event of a wrongful eviction, the tenant can recover general damages as well as lost profits which would have been earned for the balance of the lease term. The lesson to landlords should be clear. The Florida Legislature has created a procedure of the eviction of tenants, and it is the Legislature’s intent that landlords should not be permitted to engage in coercive, self-help practices. Bardco vs. Sun Coast Towers V Associates 676 So.2d 502 (Fla. 3rd DCA 1996).

 

IV.       LITIGATION OVERVIEW

 

Financially embarrassed debtors often adopt the strategy that the best defense is a strong offense. As a result, it is not uncommon for a defaulting tenant to attempt to assert that the payment of rent is excused by the landlord’s failure to comply with various provisions of the lease. Unless the tenant specifically disputes the amount of past due rent sought in the landlord’s complaint, or, alternatively, asserts that the past due rent has been paid, the tenant must pay past due and accruing rent into the court’s registry, and should the tenant fail to do so according to court order, all of the tenant’s defenses will be deemed to be waived. Florida Statute 83.232. Pursuant to this section, landlords should, promptly upon the filing of their eviction complaint, obtain an order of the court directing that accrued and accruing rent be paid into the court’s registry. The tenant’s failure to pay rent after the entry of this Order entitles the landlord to an immediate default for possession without further notice or hearing. Florida Statute 83.232(5).

 

A proposed Order is set forth: 

 

IN THE CIRCUIT COURT, IN AND

FOR ORANGE COUNTY, FLORIDA

 

[NAME OF PLAINTIFF],                                                   CASE NO.:

 

Plaintiff,

 

vs.

 

[NAME OF DEFENDANT],

 

Defendant.

_______________________/

 

ORDER NOTIFYING DEFENDANT OF REQUIREMENT THAT RENT

BE PAID INTO REGISTRY OF COURT

PURSUANT TO SECTION 83.232 FLORIDA STATUTES (1993)

 

THIS CAUSE having come on for hearing, ex parte, pursuant to Section 83.232 Florida Statutes (1993), and the Court being otherwise fully advised in the premises,

 

IT IS ADJUDGED that Defendant is hereby notified that pursuant to Chapter 83.232, Florida Statutes (1993), unless Defendant contests the amount of accrued rent the Complaint alleges as unpaid, Defendant shall forthwith and immediately pay the rent alleged in the Complaint alleges as unpaid, Defendant shall forthwith and immediately pay the rent alleged in the Complaint as unpaid, ($_______________________ ) into the registry of this Court on or before the date on which Defendant’s Answer to Count I in the Complaint is due, which is five (5) days following service of the Complaint upon the Defendant, exclusive of weekends and legal holidays. Furthermore, the Defendant shall pay any rent that accrues during the pendency of this action into the registry of this Court on or before the first day of each month. Failure of Defendant to comply with this Order shall be deemed an absolute waiver of Defendant’s defenses as to Plaintiffs claim for possession and shall entitle the Plaintiff to an immediate default without further notice or hearing thereon.

 

DONE AND ORDERED in Chambers in Orlando, Orange County, Florida this ______ day of _________________, 2002.

 

                                                                                                ____________________________

Circuit Judge

 

 

While the tenant may assert any defenses which are reasonably related to the issues raised by the landlord in its complaint, the ability to raise those defenses is conditioned upon the tenant’s compliance with the Court’s Order directing accrued and accruing rent. The Legislature has directed the Courts, on their own motion, to provide such notice to tenants immediately upon the filing of the tenant’s initial pleading. Florida Statute 83.232(3). In the experience of the author, however, most Courts will provide this notice to the tenant only upon motion of the landlord. Since notice to the tenant of its obligation to pay accrued and accruing rent is a significant tool in the landlord’s arsenal, counsel should, in every instance, promptly obtain an appropriate Court Order and serve it upon the tenant

 

Not infrequently, tenants raise the defense of constructive eviction. If, as a result of the wrongful acts of the landlord, the leased premises are unsafe, unfit or unsuitable for occupancy for the purposes for which they were leased, a constructive eviction arises. Constructive eviction has been defined as an act “which although not amounting to an actual eviction, is done with the express or implied intention, and has the effect, of essentially interfering with the tenant’s beneficial enjoyment of the leased premises.” Hankins vs. Smith 138 So.2d 494 (Fla. 1931) at 495. In the event of a constructive eviction, the tenant is excused from paying rent. In order for a constructive eviction to be deemed to have occurred, however, the tenant must give the landlord timely notice of its objection and a reasonable opportunity to make repairs. Boulevard Shoppes. AB vs. Pro/1 Realty, Inc. 605 So.2d 1317 (Fla. 4th DCA, 1992). If the landlord fails to affect a cure within a reasonable time of its receipt of notice the tenant may abandon the premises without consequence. If, however, the tenant fails to abandon the premises within a reasonable time after the landlord’s failure to cure, the tenant will be precluded from asserting a claim of wrongful eviction. Kaplan vs. McCabe, 532 So.2d 1354 (Fla. 5th DCA, 1988).

 

V.        HOLDOVER TENANTS - UNLAWFUL DETAINER

 

Tenants who fail to vacate the leased premises at the end of the lease are commonly referred to as “holdover tenants.” Most commercial leases deal with the subject of holdover tenants, and provide a financial disincentive to the tenant in the form of increased rent obligations. The lease must be reviewed in this regard. If the lease document is silent on this point, however, Florida law provides that the landlord may demand and recover double the normal monthly rent together with interest. Florida Statute 83.06. This entitlement is not automatic, however, and a specific claim for double rent must be included in the landlord’s complaint. Kobrowski vs. Kleen Wash. Inc. 572 So.2d 975 (Fla. 3rd DCA, 1990).

 

When a tenant has held over beyond the term of the lease, counsel should consider adding a count to the complaint seeking possession by virtue of the tenant’s unlawful detainer. Florida Statute 82.03. The action is akin to an eviction, and is governed by the summary procedures discussed above. If it is determined that the tenant willfully and knowingly refused to provide possession of the premises, damages may be awarded up to double the rental value of the property. Florida Statute 82.07 1.

 

Actions for unlawful detainer can be problematic. The Legislature has expressly provided that damages shall be fixed by the jury. See Florida Statute 82.07 1 and Florida Statute 82.08 1. While no cases speak to this point, it appears that detainer actions must be tried to a jury. Careful consideration should be given to the question of whether the interest of the landlord is best served by presenting its case to a jury.

 

VI.       PAYMENT OF RENT INTO REGISTRY OF COURT

 

See IV above.

 

VII.     DAMAGES

 

As in the resolution of any contractual dispute, reference must be made to the lease so as to calculate damages recoverable by the landlord. There is no doubt that the landlord is entitled to past due rent together with interest, Court costs, and attorneys’ fees (if provision is made for them within the lease agreement). A more interesting question revolves around the landlord’s recovery of rent to accrue in the future.

 

Virtually all commercial lease agreements describe the options available to the landlord upon the tenant’s breach. If the lease agreement permits the landlord to take possession of the premises for the account of the tenant, future rent may be accelerated subject to its reduction to present value. CB Institutional Fund VII vs. Gemballa USA, Inc. 566 So.2d 896 (Fla. 4th DCA, 1990). If, on the other hand, the lease agreement provides for its termination upon the landlord’s taking of possession, the landlord will not be permitted to accelerate future rent. Grove Restaurant & Bar, Inc. vs. Razook 571 So.2d 596 (Fla. 2nd DCA 1990). Obviously, landlords’ counsel must carefully review the lease agreement in order to determine the remedy available upon default.

 

Bear in mind that eviction cases are covered by the summary procedure set forth in Florida Statute 51.011. Discovery other than depositions may be held only upon order of Court setting the time for compliance, and the pendency of discovery will not postpone trial except for good cause shown or by stipulation of the parties. Florida Statute 51.011(2). However, money judgments will be entered only in accordance with the Florida Rules of Civil Procedures. Florida Statute 83.231. If the complaint includes a claim for a money judgment, the tenant must be served with two (2) summonses - one requiring an answer to the eviction count within five (5) days and one requiring an answer to the count seeking damages within 20 days.

 

VIII.    GOING TO TRIAL

 

Eviction cases are tried as any other, but on an expedited basis. As indicated above, all defenses must be contained in the tenant’s answer which must be filed within five (5) days after service of process. If the answer includes a counterclaim, the landlord has five (5) days from the service of the counterclaim in which to serve its defenses, and no other pleadings are permitted. Florida Statute 51.011(2).

 

The landlord must be prepared to present testimony establishing the tenant’s default and the submission of the three-day notice to the tenant as required by Florida Statute 83.20. At the close of trial, if the Court finds for the landlord, it is empowered to enter judgment for possession of the premises together with money damages sought in the complaint and within the Court’s jurisdictional limits. Florida Statute 83.23 1.

 

 


 

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