[RPPTL LandTen] Anticipatory Breach - Does it Fly?

Tue Apr 24 15:33:59 PDT 2012

Isn’t a constructive eviction an action taken or permitted by the Landlord that makes it impossible (either literally or figuratively) to occupy the premises? I agree with Cary that the circumstances control whether this is or is not a constructive eviction. If it is a restaurant and there are swarms of flies, there probably is a constructive eviction. If it is residential premises and the Tenant and there are some files (but no swarms), then probably not.

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Tuesday, April 24, 2012 6:20 PM
To: lesstevens at earthlink.net; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Anticipatory Breach - Does it Fly?

Les,

I am not aware of any specific authority (statutory or case law) that would answer your question of how many flies is too many.  This would be a factual issue to be decided by the Judge.  However, based on the way you describe it, I would say the L/L did the right thing and the T doesn't seem to have a valid reason to terminate the lease.  Sounds like the L/L was responsive in a timely manner, but the T may be exaggerating the issue.

Hope that helps.
Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
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From: lesstevens <lesstevens at earthlink.net<mailto:lesstevens at earthlink.net>>
To: 'RPPTL Landlord Tenant Committee' <landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>>
Sent: Tuesday, April 24, 2012 2:59 PM
Subject: [RPPTL LandTen] Anticipatory Breach - Does it Fly?

I sent out an e-mail yesterday with a scenario that I was looking for input on….and I guess because it was Monday everyone was busy…so I am re-printing below to see if anyone has any input..

Thanx.

I have a client, landlord, who was informed of a potential dead animal in the attic of one of his tenants. He immediately had the area treated; however, the flies kept coming back. After a couple of more treatments there did not appear to be any more flies; however, the Tenant has become “fly paranoid”. The landlord abated the time period in which the premises were treated as she had to temporarily vacate the premises.

Now there are no signs of the flies; however, the Tenant has sent a notice of intent to vacate citing 83.51(1), although I believe she meant subsection (2)….The question becomes, “How Many Flies Constitute Constructive Eviction”?

Our intent is to hold the Tenant to the balance of the Lease term as the Landlord has complied with his statutory obligations and there is no further evidence of a problem.

Thank you for your input in this matter….

Les H. Stevens, Esquire
Les H. Stevens, P.A.
5301 North Federal Highway
Suite 130
Boca Raton, Florida 33487
Tel. - (561) 989-9797
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E-Mail - lesstevens at earthlink.net<mailto:lesstevens at earthlink.net>

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