In 901 POMPANO, LLC, vs. PERSON¹, the Landlord was a corporation. The court dismissed the complaint because the Landlord was not represented by an attorney. The court held that a corporation may not proceed “pro se” (that is without an attorney) in an eviction. Consequently, because corporations may not prosecute an eviction except through legal counsel, the court granted the Tenant’s motion to dismiss.

¹ 901 POMPANO, LLC, Plaintiff, vs. BRENDA PERSON, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-08891.

Jaisen J. Stango, Esq.
Commercial Evictions Attorney

Common contract language used in a commercial lease regarding the assignability of the leasehold interest is:

“Tenant may not assign this rental agreement without the written consent of the Landlord.”

The inevitable consequence of such a provision is that it does not explain when the Landlord may and may not lawfully withhold its consent to the assignment.

In Fernandez v. Vazquez, 397 So.2d 1171 (Fla. 3d DCA 1981), the lease contained a similar provision. The issue before the court was whether a commercial landlord with the power to withhold consent to an assignment can withhold that consent for any reason whatsoever. The Tenant in Fernandez entered into an agreement to sell its business, however the Landlord refused to consent to the assignment unless the buyer agreed to pay an additional $250 per month in rent. The buyer refused and rescinded the purchase and sale contract. In response to a subsequent eviction action, the Tenant counterclaimed alleging the Landlord breached the lease by refusing to consent to the assignment.

The court held that when a Tenant agrees to limit its right to assign the lease without prior consent of the Landlord, that consent should not be unreasonably withheld. The court reasoned that a lease is a contract and, therefore, should be governed by the contract principles of good faith and commercial reasonableness. The court further explained that a withholding of consent to an assignment is unreasonable (i.e., a breach of the lease) when it fails the tests for good faith and commercial reasonableness. The court stated that in determining the reasonableness of the withholding of consent by a landlord, the factors to be considered are:

1. the financial stability of the proposed subtenant
2. the suitability of the proposed subtenant for the particular building
3. the need for alteration of the premises
4. the legality of the proposed use
5. the nature of the occupancy, (i.e., residential, commercial, office, retail, etc.)

If you have any questions regarding the legitimacy of a refusal to consent to an assignment of a lease, please call my office at (407) 835-8688 for more information.

Jaisen J. Stango, Esq.
Commercial Eviction Attorney