[RPPTL LandTen] Lease to Agency of the State of Florida - Sovereign Immunity for Defaults?

Wed Jul 22 12:45:07 PDT 2009

Not had this come up. I have seen a number of State of Florida leases
but in no case has litigation ensued for breach by the State.  I do
understand that there are certain limitations on liability claims (and
statutory limitations on the State's monetary obligations in the
liability/negligence context), but do not believe that the State could
never have contractual obligations for a lease default by virtue of that
particular sentence.  I take it to mean that they don't want the mere
execution of the lease by the State to waive any immunity rights or
limitations they may have. Not artfully drafted.  But I have not had
occasion to test the theory. 

Neil B. Shoter 
Partner / LEED Accredited Professional  
________________________________

Shutts & Bowen LLP 
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL
33401 
Direct: (561) 650-8535 | Fax: (561) 822-5525
E-Mail <mailto:NShoter at shutts.com>  | Biography
<http://www.shutts.com/index.cfm/fa/attorney.bio/atty/466a1d2b-4049-425b
-af4b-a56f3cb8a441/Neil_B_Shoter.cfm/>  | V-Card
<http://www.shutts.com/index.cfm/fa/attorney.vcf/atty/466a1d2b-4049-425b
-af4b-a56f3cb8a441/Neil_B_Shoter.cfm/>  | Website
<http://www.shutts.com/> 

________________________________

	From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of George
Pincus
	Sent: Wednesday, July 22, 2009 3:28 PM
	To: 'landten at lists.flabarrpptl.org'
	Subject: [RPPTL LandTen] Lease to Agency of the State of Florida
- Sovereign Immunity for Defaults?

	Greetings everyone:

	I appreciate the opportunity to be back on this committee.  

	Has anyone dealt with the following issue:

	I am representing a Landlord in negotiating a lease with an
Agency of the State of Florida.  The crappy Department of Management
Services Lease which I am being forced to work off of contains the
following provision:

	"The provisions, terms or conditions of this Lease shall not be
construed as a consent of the State of Florida to be sued because of
said lease hold."

	My understanding was that the State and its agencies, when
acting as a participant in a business transaction is deemed to have
waived sovereign immunity for its breaches of contract.  The quoted
provision seems to (i) support that legal conclusion and (ii) totally
gut it, rendering any remedies for failure to pay rent or a non-monetary
default useless.  How do you do a lease with a tenant that is
sovereignly immune and have meaningful remedies for a default by the
tenant?

	Anyone? 

	Thanks very much for your thoughts. 

	George A. Pincus, Esq.

	Shareholder

	Stearns Weaver Miller Weissler

	  Alhadeff & Sitterson, P.A.

	New River Center, Suite 2100

	200 East Las Olas Boulevard

	Ft. Lauderdale, FL 33301

	Telephone: 954-766-9705

	Facsimile:    954-766-9719

	E-mail: gpincus at stearnsweaver.com <mailto:gpincus at swmwas.com> 

	www.stearnsweaver.com

	Notice: My email address has changed. The domain name has
changed from swmwas.com to stearnsweaver.com. Please make a note of it.

________________________________

	CONFIDENTIALITY NOTICE: The information contained in this E-mail
message is attorney privileged and confidential information intended
only for the use of the individual(s) named above. If the reader of this
message is not the intended recipient, you are hereby notified that any
dissemination, distribution or copy of this communication is strictly
prohibited. If you have received this communication in error, please
contact the sender by reply E-mail and destroy all copies of the
original message. Thank you.

________________________________

	CIRCULAR 230 DISCLOSURE: To ensure compliance with
recently-enacted U.S. Treasury Department Regulations, we are now
required to advise you that, unless otherwise expressly indicated, any
federal tax advice contained in this communication, including any
attachments, is not intended or written by us to be used, and cannot be
used, by anyone for the purpose of avoiding federal tax penalties that
may be imposed by the federal government or for promoting, marketing or
recommending to another party any tax-related matters addressed herein.

IRS CIRCULAR 230 NOTICE:   Pursuant to recently enacted
U.S. Treasury Department Regulations, we are now required
to advise you that, unless otherwise expressly indicated,
any federal tax advice expressed above was neither
written nor intended by the sender or this firm to be
used and cannot be used by any taxpayer for the purpose 
of avoiding penalties that may be imposed under U.S. tax 
law.  If any person uses or refers to any such tax advice
in promoting, marketing or recommending a partnership or
other entity, investment plan or arrangement to any 
taxpayer, then the advice should be considered to have
been written to support the promotion or marketing by a 
person other than the sender or this firm of that 
transaction or matter, and such taxpayer should seek
advice based on the taxpayer's particular circumstances
from an independent tax advisor.

The information in this email transmission is privileged
and confidential.  If you are not the intended recipient,
nor the employee or agent responsible for delivering it to
the intended recipient, you are hereby notified that any
dissemination or copying of this transmission (including
any attachments) is strictly prohibited.  If you have
received this email in error, please notify the sender by
email reply.  Thank you.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://mailman.fsr.com/mailman/private/landten/attachments/20090722/796b494b/attachment-0001.html 