[RPPTL LandTen] Evidence of Authority of Tenant to Sign Lease

Fri Feb 14 13:58:06 PST 2014

I'd like to attach a clean copy of the form to the contract (as an exhibit) saying that the provisions of that exhibit control.   I'm circulating the draft tomorrow and currently have the reference but no attachment.

Julie A.S. Williamson
Akerman LLP | One Southeast Third Avenue | Suite 2500 | Miami, FL 33131-1714
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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of David Weisman
Sent: Friday, February 14, 2014 4:24 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Evidence of Authority of Tenant to Sign Lease

I agree with Eric, particularly with the concept of apparent authority. If it is a corporate President or Vice President, or an LLC Manager or up until now a Managing Member, it should be okay.

The added language would offer some protection from contractual restrictions, such as ‘a majority of members must approve a major transaction.’

David  Weisman
Board Certified Real Estate Lawyer
Greenspoon Marder, P.A.
Trade Center South, Suite 700
100 West Cypress Creek Road
Ft. Lauderdale, FL 33309
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Toll Free 888-491-1120
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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Eric.Rapkin at akerman.com
Sent: Friday, February 14, 2014 4:13 PM
To: landten at lists.flabarrpptl.org
Subject: Re: [RPPTL LandTen] Evidence of Authority of Tenant to Sign Lease

I would agree that the requirement is not market in that almost no one requires it.  But there's also nothing wrong with asking for it and there shouldn't be pushback from the tenant's side.  Every so often when I'm representing a tenant, the Lease will require a resolution at signing.  I'll never push back on that, it's fine if the landlord really needs it, but I'll also require a resolution from the landlord.  It's not right to require one from the tenant if the landlord is not willing to provide one.

Personally, none of the forms I use on the landlord side require it.  And I almost never see the signed version of a Lease until long after it's been signed, so I usually don’t know who signed for the tenant, although it typically says VP or another title that denotes apparent authority.  When I see a Lease after it's been in place for a while and the signatory clearly didn't have authority (like "Sam Smith, local sales manager"), I'll remind that landlord's leasing team that when they get leases signed, the tenant should have an officer sign (or if it's an LLC, a Manager or Managing Member, but I guess I have to get familiar with the new LLC statute, I think there are no more Managing Members, and like a partnership, the LLC can now file a statement limiting authority of members or the manager).  If the deal is such that the tenant's signed copies are sent to me to send to the landlord (which is rare) and I see that the signer doesn't have a title that denotes apparent authority, I'll ask the tenant's attorney to send me either a resolution if they have one already prepared or if not just an e-mail from the attorney that says that the person who signed had the authority.  We do always confirm that the tenant entity is in good standing in their State of formation (almost every State has this as a free online service, except of course Delaware where you can search a name, but it doesn't tell you if the entity is currently in good standing, you'd have to pay for that, and I think also Texas isn't free).  If they're in good standing in their home state, it's not critical that they also be authorized in Florida, that's really the tenant's problem, although I always tell the tenant (or ask the landlord to tell the tenant) that the tenant really should register to do business in Florida.

I don't know if there's any case law on this, but I never really got how it helps to have a rep in the Lease on authority.  It usually says something like the tenant and the person signing for the tenant represent that the signer has the authority to sign the Lease.  If that turned out to be wrong and the tenant said there was never a Lease created because of lack of authority of the signer, then it seems to me there's no claim against the tenant under the Lease if the Lease never came into existence, and at best there's some sort of fraud claim against the individual who signed the Lease (and that individual most likely never read the Lease and has no idea the Lease said that), and I can't imagine it's worth pursuing a claim like that against the individual signatory.  But like I said I've never researched any of this.

I think getting a corporate resolution from a tenant is similar to a landlord filing a UCC against the tenant when the Lease is signed.  There's no reason at all why you wouldn't do it, it seems to be a prudent thing to do, and yet almost no one ever gets a resolution or files a UCC.

Eric D. Rapkin
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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 Lainie Simon
Sent: Friday, February 14, 2014 3:34 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Evidence of Authority of Tenant to Sign Lease

From the other side, I have a client that does its own leasing and NEVER checks anything.  At least 50% of the time the tenant is inconsistent with Sunbiz in some way.   None have tried to get out of a Lease on that basis.  Some have tried to defend a claim for damages after an eviction on that basis (lack of authority to enter into the Lease)  unsuccessfully.  I just include allegations as necessary in the Complaint.

Lainie J. Simon, Esq.
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On Feb 14, 2014, at 2:35 PM, Arthur J. Menor <AMenor at shutts.com<mailto:AMenor at shutts.com>> wrote:

For those of you on the transactional side, I have the following issue.  When representing landlords, we require the tenant to provide a resolution or other evidence that the individual signing the lease for the tenant has the authority to do so.  Recently, we have had a lot of push back from brokers and tenants who chafe at this requirement and say it is not “market”.  I am curious about how other leasing lawyers view this issue

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Arthur J. Menor
Partner
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