[RPPTL LandTen] Quick question for my residential leasingcolleagues

Thu Jun 25 08:00:03 PDT 2009

That's true but most tenants don't pay the double rent and then you post the
three day for double rent and evict that way.  The problem is that if they
pay you're stuck.

Gale Silbermann

Baxter, Strohauer, Mannion & Silbermann, PA

1150 Cleveland Street, Suite 300

Clearwater, FL 33755

(727) 461-6100

(727) 447-6899 Fax

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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Arthur J. Menor
Sent: Thursday, June 25, 2009 9:31 AM
To: RPPTL Landlord Tenant Committee
Cc: Madelin D'Arce
Subject: Re: [RPPTL LandTen] Quick question for my residential
leasingcolleagues

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 

 <http://www.arnstein.com/> 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 
 <mailto:SAFrank at arnstein.com> SAFrank at arnstein.com

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