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 The buyer refused and rescinded the purchase and sale contract.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

A Tenant becomes a “holdover tenant” if that Tenant remains in possession of the premises either after the expiration of a rental agreement or the valid termination of the tenancy by the Landlord. Accordingly, the period is which the tenant remains in possession after the expiration or valid termination of the rental agreement is the “holdover period.” Under Florida Law (s. 83.06 & 83.58 ), the Landlord may be entitled to double rent during the holdover period.

However, under certain circumstances, a Tenant may remain in possession of the premises after the expiration of a rental agreement or the valid termination of the tenancy and not be deemed a holdover tenant. Under Florida Law, a Tenant that remains in possession under a bona fide claim of right is not a holdover tenant. See Greentree Amusement Arcade, Inc. v. Greenacres Development Corp., 401 So.2d 915 (Fla. 4th DCA 1981).

In Covelli Family, L.P. v. Abg5, L.L.C., the property was damagesd by two hurricanes. The Landlord terminated the rental agreement under the “damage or destruction” provision, which permitted the Landlord to terminate the rental agreement if the cost to repair the building exceeded 20% of the insurable value. However, the Tenant remained in possession of the premises claiming the Landlord failed to obtain estimates from “reputable” contractors. The trial court found in favor of the Landlord and awarded the Landlord double rent during the holdover period

On appeal, the Court held that is was in error to award the Landlord double rent because the Tenant had a “well-founded claim of possession” and, therefore, was not a holdover tenant. The Court noted that, similar to Greentree Amusement Arcade, Inc. v. Greenacres Development Corp, the Tenant remained in possession under an injunction awarded by the trial court. Furthermore, the Court also pointed out that the Landlord’s actions of first using an unlicensed contractor added to the legitimacy of the Tenant’s challenge to the termination.

If you have any questions about Florida Landlord / Tenant Law, please call my office at (407) 835-8688.

Jaisen J. Stango, Esq.
Landlord / Tenant Attorney

A “Holdover Tenancy” arises when the Tenant remains in possession of the premises after the expiration of the rental agreement or after the lawful termination of the rental agreement by the Landlord. Under Florida Law (s. 83.06 & 83.58 ), the Tenant may be liable for double rent during the holdover period.

However, even if the Landlord lawfully terminated the rental agreement, the Tenant may be relieved of the obligation to pay double rent during the Holdover Period so long as the Tenant remained in possession under a bona fide claim of right. See Greentree Amusement Arcade, Inc. v. Greenacres Development Corp., 401 So.2d 915 (Fla. 4th DCA 1981).

In Greentree, the lease required the Tenant to maintain the premises in an orderly fashion. However, because the Tenant’s patrons were “rowdy, unruly, and generally disruptive,” the Landlord alleged this conduct constituted a material breach of the lease and, therefore, terminated the rental agreement. The trial court found the Landlord’s termination of the lease was justifiable and awarded the Landlord damages in the amount of double rent during the holdover period.

On appeal, the Court held that although there was a valid termination of the lease, the Tenant was not a holdover tenant because the Tenant had a bona fide claim of possession. The Court’s rationale was

despite the fact that the trial court correctly found that the landlord had validly terminated the lease option, the validity of that termination remained a genuine and justiciable issue up to the time that the final judgment was entered.

However, the Court noted that the Tenant’s possession of the premises was (1) authorized by an injunction awarded by the trial court and (2) the Tenant continued to pay the normal rent due under the rental agreement until the Tenant vacated the premises.

If you have any questions about Florida Landlord / Tenant Law, please call my office at (407) 835-8688.

Jaisen J. Stango, Esq.
Landlord / Tenant Attorney

A Tenancy without a Specific Term may be terminated by either party giving written notice, as follows:

• When the tenancy is from week to week, by giving not less than 7 days’ notice prior to the end of any weekly period.
• When the tenancy is from month to month, by giving not less than 15 days’ notice prior to the end of any monthly period.
• When the tenancy is from quarter to quarter, by giving not less than 30 days’ notice prior to the end of any quarterly period.
• When the tenancy is from year to year, by giving not less than 60 days’ notice prior to the end of any annual period.

However, the above-mentioned notice requirements may be modified by the rental agreement or, in some instances, by the conduct of the parties. Accordingly, it is advisable for Landlords to seek the counsel of a Landlord / Tenancy Attorney to properly terminate a tenancy without a specific term.

If you have any questions about terminating a tenancy without a specific term, please call my law office at (407) 835-8688.

Jaisen J. Stango, Esq.
Landlord / Tenant Attorney

A “Holdover Tenancy” is a tenancy in which the Tenant unlawfully remains in possession of the premises after the expiration of the rental agreement. For instance, if the rental agreement clearly states that the Tenancy shall expire at 5 pm on Dec 31, yet the Tenant remains in possession (without the consent of the Landlord) past that time and date, then the Tenant is a Holdover Tenant.

Holdover Tenants are still under the protection of Florida Law. (i.e., Landlords shall not use self-help methods of eviction to remove Holdover Tenants). Accordingly, Landlords must file an appropriate action in a court of competent jurisdiction to recover possession of the premises from Holdover Tenants. However, Florida Law encourages Tenants to peacefully vacate the premises after the expiration of the rental agreement by entitling Landlords to recover DOUBLE RENT during the Holdover Period. For instance, if the normal monthly rent was $900, then the Tenant is liable for $60 per day (based on a 30 day proration) for each day that the Tenant remains in the premises after the expiration of the rental agreement.

A problematic issue arises when Landlords enter into negotiations to renew Tenancies with Tenants prior to the expiration of the rental agreement. Even though (from the Landlord’s point of view) a ‘final agreement’ to renew the Tenancy was never mutually agreed upon, the Tenant may be in a position to claim that the Tenant reasonably and materially relied upon the Landlord’s representations that the Tenant would be able to remain in possession of the premises after the expiration of the rental agreement and, as a result, the Landlord may not immediately file an eviction action shortly after the expiration of the rental agreement.

Another common problem for Landlords is accepting anything of value from Tenants in exchange for permitting the Tenant to remain in possession of the premises past the original expiration date.

If a Landlord does not intend to renew a rental agreement, it is advisable for that Landlord to seek the counsel of a Landlord / Tenant Attorney so that the Landlord’s actions prior to the expiration to the rental agreement does not give rise to a defense in an eviction action.

If you have any questions about recovering possession from a Holdover Tenant, please call my law office at (407) 835-8688.

Jaisen J. Stango, Esq.
Landlord / Tenant Attorney

When a Landlord does not intend to make a claim on the Tenant’s security deposit, Florida Law requires Landlords to return security deposits with interest (if applicable) within 15 calendar days after the Tenant vacates the premises.

An problematic issue arises when the Tenant does not provide the Landlord with the new mailing address. Also, there is potential exposure to liability when there are multiple tenants and the rental agreement is silent of the issue of to whom the security deposit should be refunded to.

It is advisable for Landlords to seek the advice of a Landlord / Tenant Attorney regarding the refund of the Tenant’s Security Deposit.

If you have any questions about refunding a Tenant’s security deposit for your Florida rental property, please call my law office at (407) 835-8688.

Jaisen J. Stango, Esq.
Landlord / Tenant Attorney

A fatal error that I see many Landlords make in drafting the 3-Day Notice is in calculating the 3-day period in which the Tenant in residential property has to pay rent or vacate the premises before the Landlord can legally file an eviction action.

A common oversight is the omission of “legal holidays” in determining the 3-day period. Landlords should check with the Clerk of the Court in the county in which the investment property is located for a list of the legal holidays observed by the Court sitting in that jurisdiction.

The drafting of 3-Day Notices can be done by Landlords without the assistance of legal counsel, however it is advisable that Landlords seek the advice of a Landlord / Tenant Attorney before issuing the notice.

If you have any questions about drafting a 3-Day Notice for your Florida rental property, please call my law office at (407) 835-8688. I offer free 3-Day Notices for Landlords with investment property in Orange & Osceola Counties.

Jaisen J. Stango, Esq.
Landlord / Tenant Attorney

Sample “3-Day Notice” form to be used in a Florida Residential Tenant Eviction

(Date)

(Tenant’s Name)

(Tenant’s Address)

3-DAY NOTICE FOR NONPAYMENT OF RENT

You are hereby notified that you are indebted to me in the sum of ( _____ ) dollars for the rent and use of the premises located at (address of leased premises, including county), Florida (zip), now occupied by you. That rent was due on (date the rent was due) and I demand payment of the rent or possession of the premises within 3 days (excluding Saturday, Sunday, and legal holidays) from the date of delivery of this notice, to wit: on or before the ( _____ ) day of ( _____ ), (year).

(Landlord’s Name)

(Landlord’s Address)

(Landlord’s Phone Number)

CERTIFICATE OF SERVICE

I certify that a true copy of this notice has been furnished to the above-named tenant on __________, at ________  a.m. / p.m. by:

1. [ ] Delivery
2. [ ] Posting in a conspicuous place on the premises

(Issuer’s Signature)

(Issuer’s Name)

(Issuer’s Address)

If you have any questions about drafting a 3-Day Notice for your Florida rental property, please call my law office at (407) 835-8688. I offer free 3-Day Notices for Landlords with investment property in Orange & Osceola Counties.

Jaisen J. Stango, Esq.
Orlando Eviction Attorney

Under Florida Law, should either the Tenant or Landlord file an action to determine the party’s right to the Security Deposit, the prevailing party is entitled to recover his or her court costs & reasonable attorney’s fees from the other party.

I represent both Landlords & Tenant is Security Deposit Disputes. If you have any questions about defending or filing an action to determine your rights to the Security Deposit, please call my law office at (407) 835-8688.

Jaisen J. Stango, Esq.
Landlord / Tenant Attorney

Sample Florida “Notice of Intent to Impose a Claim on the Security Deposit” Form.

This notice must be sent by Certified Mail. It is advisable to also send it Return Receipt Requested.

(Date)

VIA CERTIFIED MAIL

(Tenant’s Name)

(Tenant’s Address)

NOTICE OF INTENT TO IMPOSE A CLAIM ON THE SECURITY DEPOSIT

This is a notice of my intention to impose a claim for damages in the amount of _____ (insert amount you intend to deduct) upon your security deposit, due to _____ (insert specific damages suffered by the Landlord). It is sent to you as required by s. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to

(Landlord’s Name)

(Landlord’s Address)

If you have any questions about drafting a “Notice of Intent to Impose a Claim on the Security Deposit” for your Florida rental property, please call my law office at (407) 835-8688.

Jaisen J. Stango, Esq.
Landlord / Tenant Attorney