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
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.
