[RPPTL LandTen] Survival of Material Lease Terms

Wed May 29 12:29:47 PDT 2013

I agree in the commercial setting. I am usually on the landlord's side and there is case law that says attorneys' fees provisions do not survive after expiration of a written lease.  See Douglass v. Jones, 422 So.2d 352 (Fla. 5th DCA 1982).  Copy attached.

[cid:image001.jpg at 01CCE29A.39B6E430]
Dariel J. Abrahamy, Esq.
Greenspoon Marder, P.A.
100 W. Cypress Creek Road, Suite 700
Fort Lauderdale, FL 33309
P: 954-491-1120; F: 954-343-6972
Dariel.Abrahamy at gmlaw.com

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Joseph Alexander
Sent: Thursday, May 23, 2013 2:57 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

To my complete terror, I once filed alleging attorneys' fees did survive in a commercial context.  To my great relief, we settled without having to test my argument.  Of course, the tenant's attorney argued that attorneys' fees were not available...and, if I were the Judge, I would have found his argument persuasive.

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Joseph N. Alexander | Partner
POTTER CLEMENT BERGHOLTZ ALEXANDER
308 East Fifth Avenue
Mount Dora, Florida 32757
Phone:  352.383.4186
Fax:       352.383.0087
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From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Haney, Gregory
Sent: Thursday, May 23, 2013 2:37 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

Hi Joseph.  Yes, good point.  I do likewise always insert a survivability clause in my attorney fee provisions, but admittedly haven't had to test it in this context yet.

That said, I think you're right, that it would be a tough row to hoe (even with such a clause) if you, as landlord, are claiming that the lease terminated and the tenant was purely at sufferance.  In that instance, the basis for your eviction suit necessarily has no basis whatsoever in the lease, surviving clause or not.

Something to think about with the language I pasted below of course.  If fee recovery is a priority, it seems like it would be key (again, as landlord) to have the lease survive a holdover but with at least the same termination rights as an at-sufferance situation.

I do commercial tenant rep more often, so it is an interesting and useful exercise to analyze from this side.

Gregory

Gregory R. Haney
Attorney at Law
Shumaker, Loop & Kendrick LLP
Bank of America Plaza
101 East Kennedy Boulevard
Suite 2800
Tampa, FL 33602
813.229.7600
813.227.2277 direct
813.229.1660 fax
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From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Joseph Alexander
Sent: Thursday, May 23, 2013 11:42 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

Gregory,

In the commercial context, what about the attorneys' fees?  If tenancy at sufferance, and lease is the only way to get fees, should you have a provision that they also continue (and is that even enforceable)?

PLEASE MAKE NOTE OF OUR NEW FIRM NAME AND MY NEW EMAIL ADDRESS.

Thank you,                          P Think before you print.

Joseph N. Alexander | Partner
POTTER CLEMENT BERGHOLTZ ALEXANDER
308 East Fifth Avenue
Mount Dora, Florida 32757
Phone:  352.383.4186
Fax:       352.383.0087
jalexander at pcba-law.com<mailto:jalexander at pcba-law.com>

This message and any attachments are intended only for the use of the addressee and may contain information that is privileged and confidential.  If the reader of the message is not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited.  If you have received this e-mail in error, please notify us immediately by replying to this e-mail message or by telephone and delete this message and any attachments from your system.  Thank you.

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From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Haney, Gregory
Sent: Thursday, May 23, 2013 11:18 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I would tend to agree but in the land of commercial leasing, where contractual provisions and intentions almost always prevail, I would want to look at the applicable holdover provision (which can vary wildly) very closely to determine whether we do indeed have a pure holdover situation in violation of the lease (thus removing contractual provisions from the analysis) or some variant where the lease still applies but with increased rent, etc.   Sometimes holdover provisions really do read like a month-to-month extension of the lease, and sometimes they even explicitly keep the lease in play so that the landlord continues to be protected by insurance provisions, indemnity obligations, and the like.

I tend to try to do something like this (when representing the landlord) to get them the best of both worlds for what it's worth:

If Tenant fails to fully and timely surrender the Premises as required, tenant's continuing occupancy of the Premises shall constitute a tenancy at
sufferance pursuant to § 83.04, Florida Statutes, terminable at any time by Landlord.  Landlord will also be entitled to recover 200% of the rent in effect immediately prior to expiration or earlier termination of the Lease, prorated for each day of said holdover period. Acceptance of such amounts shall not be deemed a renewal of this Lease.  The provisions of Article 15 of the Lease (Insurance and Indemnity) and this Section 5 shall survive the expiration or earlier termination of the Lease Term.

Gregory

Gregory R. Haney
Attorney at Law
Shumaker, Loop & Kendrick LLP
Bank of America Plaza
101 East Kennedy Boulevard
Suite 2800
Tampa, FL 33602
813.229.7600
813.227.2277 direct
813.229.1660 fax
ghaney at slk-law.com<mailto:ghaney at slk-law.com>
www.slk-law.com<http://www.slk-law.com/>

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From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of lesstevens
Sent: Thursday, May 23, 2013 10:56 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I would argue that the "extended notice" was a negotiated item as consideration of the Lease, but since they Tenant has now breached by holding over, that is not what was "bargained for" by the Landlord and that the provision for "extended notice" would no longer apply and the Statute for month-to-month tenancies would control...I do not believe the Tenant can "hide behind" the provision.

Any thoughts?

Les H. Stevens, Esquire
Les H. Stevens, P.A.
5301 North Federal Highway
Suite 130
Boca Raton, Florida 33487
Tel. - (561) 989-9797
Fax - (561) 989-8484
E-Mail - lesstevens at earthlink.net<mailto:lesstevens at earthlink.net>

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From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Heist, Weisse & Wolk
Sent: Thursday, May 23, 2013 10:30 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I feel that a "month to month" tenancy only requires at least 15 days prior to the beginning of the next monthly rental period regardless of what the prior written lease says although if the lease requires the LANDLORD to give more than 15 days, it would be hard to get the LANDLORD out of it.

I have no cases BUT, years ago when we were getting the liquidated damages into the law, and the penalty  for no notice prior to lease end, the Governor at the time was real clear on the fact that we could not require more than 15 days notice on month to month and the feeling was that the whole essence of month to month is the 15 day deal.

As far as the survival of other lease terms/clauses, rent, late fees, etc I feel they do survive.

Harry

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From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Wednesday, May 22, 2013 5:47 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Survival of Material Lease Terms

Members:  My understanding is that once a written lease expires and the tenant remains in possession with the landlord's consent on a month-to- month basis, the material terms of the original lease agreement survive.  Question:  If the lease required the tenant to provide 60-days' notice of his/her intent to vacate, does that provision survive or may the tenant provide the 15-days' notice prior to the end of the month-to-month lease term?

Any thoughts or case law is appreciated.  Thank you.

Regards,

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Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
2255 Glades Road, Suite 324A
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