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

[George Pincus]

Warren:

A late but sincere thank you for pointing out that case.

The broker on the deal insists that the State does not modify the form lease, but I am taking a shot at deleting that particular section.

Thanks again.

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


From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Warren P. Gammill
Sent: Wednesday, July 22, 2009 4:57 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Lease to Agency of the State of Florida - Sovereign Immunity for Defaults?

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



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.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://mailman.fsr.com/mailman/private/landten/attachments/20090729/d2339c2a/attachment.html