[RPPTL LandTen] Assignment of Lease - Can the Assignor evict the Assignee?

[Anthony J. Horky]

Hello Members: I have a unique fact pattern and before I file suit, I'd be
interested to hear other member's opinion:

 

Facts:

 

Tenant operates a retail establishment.  Tenant sells its "business" and
takes back a promissory note and security agreement.  Tenant assigns its
rights in the lease to the purchaser by way of an Assignment of Lease and
Collateral Assignment, which provides, inter alia, that upon default in the
note or security agreement, and after 10 days written notice to cure,
seller/tenant may re-enter and take possession of the collateral and operate
the business through the unexpired term of the lease. Buyer defaults on
promissory note and will not peaceably surrender possession. Buyer remains
current on rent payments to landlord.

 

Issue:  Seller/tenants wants to exercise its right of re-entry and sue on
the note.

 

Causes of action:  Foreclosure of security agreement, breach of the note,
breach of personal guaranty and  Declaratory Judgment that (1) buyer is in
default, (2) tenant/seller reserved right of re-entry, and (3) clerk to
issue writ of possession.

 

Question:  Does anyone have an opinion on another type of cause of action to
adjudicate seller/tenant's right of re-entry?  Tenant, as assignor, remains
liable under the lease, but I see no way to evict or remove the tenant other
by way of the remedy given in the Assignment by way of a declaratory
judgment.

 

Thank you for your time.  

 

Regards, 

 


 

AJH Logo mark

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

2255 Glades Road, Suite 324A

Boca Raton, Florida 33431

T: 561.989.3206

F. 561.989.3204                    

 <http://www.horkylaw.com> www.horkylaw.com

 


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