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

[Warren P. Gammill]

George,

 

Read Florida Department of EnvIronmental Protection v. Contractpoint Florida
Parks, LLC, 986 So. 2d 1260 (Fla. 2008) and the cases cited therein.  The
State is liable for its breaches of contract.  Sovereign immunity does not
apply.  Because parties can of course agree by contract to waive personal
liability, I would insist that that provision be removed.  It is
overreaching and inconsistent with the law, but it could be interpreted by a
court as a waiver of liability and as binding on your client.  It is too
risky to leave it in the lease.

 

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 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

 

 


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