[RPPTL LandTen] Survival of Material Lease Terms

Wed May 29 13:19:34 PDT 2013

Even without a lease provision, a commercial landlord will recover his
attorney’s fees in an action for possession pursuant to Section 83.231:  “.
. . . Where otherwise authorized by law, the plaintiff in the judgment for
possession may also be awarded attorney’s fees and costs. . . .”  See,
<http://web2.westlaw.com/find/default.wl?mt=Florida&db=735&rs=WLW13.04&tc=-1
&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=1998080653&serialnum=1993213836&vr
=2.0&fn=_top&sv=Split&tf=-1&pbc=2F6C2E64&utid=1> Byte Int'l Corp. v. Maurice
Gusman Residuary Trust No. 1, 629 So.2d 191 (Fla. 3d DCA 1993); Florida
Dept. of Health and Rehabilitative Services v. Morse, 708 So.2d 640 (Fla. 3d
DCA 1998).

The “where otherwise authorized by law” clause does not seem to have any
import.

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

 <mailto:Gammill at MiamiLawOffice.com> Gammill at MiamiLawOffice.com

Website:  <http://www.gammilllaw.com/> www.gammilllaw.com

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Dariel Abrahamy
Sent: Wednesday, May 29, 2013 3:30 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

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.

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

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From: 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
ghaney at slk-law.com
 <http://www.slk-law.com/> www.slk-law.com 

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From: 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

 <mailto:jalexander at pcba-law.com> jalexander at pcba-law.com

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From: 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
 <http://www.slk-law.com/> www.slk-law.com 

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From: 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

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From: 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

LAW OFFICES OF 
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  www.evict.com <http://www.evict.com/>  
Email: harry at evict.com

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From: 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, 

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                    

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