[RPPTL LandTen] Premature Lessee Question

Fri Jun 17 08:45:11 PDT 2011

Manuel:  I do not believe the common law rule of caveat lessee is applicable in a residential setting.  See Mansur v Fubanks, 401 So.2d 328.  There the Florida Supreme Court stated:

We hold that the owner of a residential dwelling unit, who leases it to a tenant for residential purposes, has a duty to reasonably inspect the premises before allowing the tenant to take possession, and to make the repairs necessary to transfer a reasonably safe dwelling unit to the tenant unless defects are waived by the tenant. This duty may be modified by agreement of the parties.

Also, that may act as a waiver if landlord wants to defend on the grounds that the "tenant" was not a tenant but a trespasser.

>From the facts, it spears tenant had permission to enter the premises to put the "couple things" inside.  I'd want to know who gave the tenant physical access to the premises and consider impleading that person if they opened the door for the prospective tenant and negligently failed to secure the premises after the articles were placed inside the premises.

At the motion to dismiss stage, without knowing whether tenant stated a cause of action in the 4-corners of the complaint, I can't offer any advice.  Once your client has to answer, perhaps a counterclaim for trespass or unlawful entry and detainer and a negligence third-party action against the person who let the tenant move his entire family in.

Regards,

Anthony J. Horky, Esq.
Mombach, Boyle & Hardin, P.A.
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________________________________
From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Thursday, June 16, 2011 6:16 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Premature Lessee Question

Here's what I mean.
Client said he would enter into lease with tenant, i.e., written lease and security deposit, when client returned from Puerto Rico. Tenant begged to be allowed to place a "couple of things" in the house to be rented before Client returned and lease was signed. Tenant, you guessed it, moved himself and his entire family into the premises before the client returned from Puerto Rico. Just after tenant and his family move in, a house fire (each side blames the other) starts and destroys all of tenant's goods. Thankfully, no one was hurt.
We are at the pleadings stage, and I have moved to dismiss based on caveat lessee and, in effect, trespass. Tenant is saying, of course, he had permission to move into the premises and that the premises were uninhabitable (due to the faulty a/c which caused the fire).
Are there any other defense I am missing?

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Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
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