[RPPTL LandTen] Occupancy requirement

Fri Jan 6 07:48:02 PST 2017

1.      My fellow attorneys in our Firm point out to me that my statement “As a matter of contract law once you have it fully executed and delivered, a contract is binding.  Where most landlords slip-up is "delivery".  If the landlord doesn't deliver a signed copy of the lease, than it is not binding until delivery.” was too specific and they are correct.  It’s should be the offer of the tenant to lease by signing the lease is accepted and the acceptance communicated to the offeree/tenant.  I assumed that in the L/T setting the usual method of the landlord communicating acceptance was to sign the lease and deliver a copy to the tenant.

2.      I’m not an expert on the elements of anticipatory breach but I believe the landlord would have to show a clear and irrevocable repudiation of the lease by the tenant and its accompanying refusal to occupy.  I agree that the best way to show breach isn’t by using anticipatory breach, but by waiting until the tenant’s move in day and the refusal to take possession or pay rent.  But playing the devil’s advocate can’t the tenants, who gave a clear and irrevocable written repudiation, than argue that the landlord’s damages should be limited as the landlord waited to mitigate his damages.

Michael Geo. F. Davis
Attorney at Law
The MGFD Law Firm PA
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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Sebastian Jaramillo
Sent: Friday, January 06, 2017 10:29 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Occupancy requirement

Just to play devil's advocate, but if Landlord doesn't deliver possession of the premises, then the defense of lack of occupancy would be a legitimate defense.

Sebastian Jaramillo, Esq.

Florida Board Certified in Real Estate Law

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On Fri, Jan 6, 2017 at 10:16 AM, Mike Davis <mike at mgfdlaw.com<mailto:mike at mgfdlaw.com>> wrote:
I agree with Harry.  A lease is a contract and the L/T relationship is irrelevant.  As a matter of contract law once you have it fully executed and delivered, a contract is binding.  Where most landlords slip-up is "delivery".  If the landlord doesn't deliver a signed copy of the lease, than it is not binding until delivery.  A tenant withdrawal before delivery presents a problem that isn't relevant to your situation if the landlord delivered.

The tenant's refusal to honor the lease (contract) is an anticipatory breach and contract/damages law on anticipatory breaches applies.  The issue is damages and the landlord's duty to mitigate damages.  In this up market the rental may be able to be re-rented before the scheduled move-in or shortly thereafter, leading to no or minimal damages.  Commissions, admin expense, rent for time between move-in date and new tenant's move-in date, etc. may be the only damages.

Michael Geo. F. Davis
Attorney at Law
The MGFD Law Firm PA
Countryside Colonial Center
2753 SR 580, Suite 209
Clearwater, FL 33761-3351
P 727-726-1900<tel:727-726-1900>
F 727-726-7440<tel:727-726-7440>
mike at mgfdlaw.com<mailto:mike at mgfdlaw.com>
Primary Eservice: eservice at mgfdlaw.com<mailto:eservice at mgfdlaw.com>

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-----Original Message-----
From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org>] On Behalf Of Harry Heist
Sent: Friday, January 06, 2017 9:55 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Occupancy requirement

Occupancy has no relevance.

Harry

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-----Original Message-----
From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org>
[mailto:landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org>] On Behalf Of Todd Allen
Sent: Thursday, January 05, 2017 9:31 PM
To: landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>
Subject: [RPPTL LandTen] Occupancy requirement

Is anyone aware of a requirement that a residential tenant must take occupancy of the property before the lease can be effective?  Never encountered this defense before.

Seems to me that once the lease is signed it's effective, regardless of the tenant taking occupancy.
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