[RPPTL LandTen] Quick question for my residential leasingcolleagues

Thu Jun 25 06:30:32 PDT 2009

One issue to consider -- if you demand double rent you probably lose the
right to evict.  This is an excerpt from the Leases chapter in the
Florida Real Property Complex Transactions manual that I authored:

When a tenant holds over, the landlord has three mutually exclusive
options: (1) demand double rent; (2) demand a specific amount of
continuing rent; or (3) sue for possession of the property and damages
including special damages for loss of use of the property. Lincoln
Oldsmobile, Inc. v. Branch, 574 So.2d 1111 (Fla. 2d DCA 1990). The
landlord who chooses to collect double rent must make a demand under the
statute and this election precludes the landlord from seeking the other
remedies, including possession of the property, because the landlord
impliedly acquiesces to the continuing tenancy at a rental the landlord
determines to be fair. A claim for special damages, on the other hand,
implies the opposite - that the landlord objects to the continuing
tenancy and suffers damage from the loss of immediate possession of the
property. See Annot., Measure of Damages for Tenant's Failure to
Surrender Possession of Rented Premises, 32 A.L.R.2d 582 at 585 (1953,
updated 2003).

________________________________

	From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Warren P.
Gammill
	Sent: Thursday, June 18, 2009 3:31 PM
	To: 'RPPTL Landlord Tenant Committee'
	Cc: 'Madelin D'Arce'
	Subject: Re: [RPPTL LandTen] Quick question for my residential
leasingcolleagues

	Scott,

	I would deliver a letter advising the holdover tenant that he
owes double rent of $_______ per month from June 15th until he
surrenders possession and making a demand therefor.  At the same time or
at any time thereafter, I would file suit for eviction and the section
83.58 double rent (which keeps accruing).  

	A non-residential case based on Fla. Stat. 83.06 requires a
demand for double rent, with the double rent running from the date of
the demand, not from the date of the holdover.  Lincoln Oldsmobile v.
Branch, 574 So. 2d 1111.  However, 83.58 reads differently from 83.06,
allowing the recovery of double rent "for the period during which the
tenant refuses to surrender possession".  This leaves room for the
landlord to take the position that the holdover without paying any rent
constitutes bad faith and a clear refusal to surrender the premises.  At
worst, the landlord will recover double rent from the time of the
demand.

	Warren P. Gammill, Esq.

	Warren Gammill & Associates

	Suite 1050, Courthouse Tower

	44 West Flagler Street

	Miami, Florida 33130

	Telephone: (305) 579-0000

	Telecopier: (305) 371-6927

	From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Frank, Scott
A.
	Sent: Thursday, June 18, 2009 2:23 PM
	To: RPPTL Landlord Tenant Committee
	Subject: [RPPTL LandTen] Quick question for my residential
leasing colleagues

	We represent the owner of a single family house which was leased
out.  Lease expired on June 14.  We had previously provided tenant with
plenty of notice that lease was expiring and would not be renewed.  Some
discussion of a 1-month extension, but tenant flaked and never came
through with the money and offer was rescinded.

	The 14th came and went.  tenant would not respond to phone calls
or e-mails.  On Tuesday we delivered - via e-mail and first class mail,
as well as left taped to front door and in the mailbox - a notice
reminding her that the lease had expired and she was illegally holding
over.  Of course no response.  We are ready to file complaint for
possession today.

	My question is:  Will our letter be deemed a 3-day notice?  Or
will a 3-day notice be required?  As I read the statute, a 3-day notice
is not required for a holdover, as it appears that the action can be
filed immediately.  But if it is not required, will the court find our
notice to somehow imply a 3-day right to cure?  (But how can one cure
when the issue is not non-payment or some other non-performance?)

	Any thoughts or guidance would be most appreciated.  Thanks.

	Scott A Frank
	Attorney at Law
	ARNSTEIN & LEHR LLP 

	www.arnstein.com <http://www.arnstein.com/> 

	515 North Flagler Drive 

	Sixth Floor 

	West Palm Beach, Florida 33401-4323

	Phone: 561.833.9800 

	Fax: 561.655.5551

	433 Plaza Real
	Suite 275
	Boca Raton, Florida 33401-4323 
	Phone: 561.322.6900
	Fax: 561.322.6940 
	SAFrank at arnstein.com <mailto:SAFrank at arnstein.com> 

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