[RPPTL LandTen] Evictions still being filed?? / Force Majeure

Thu Apr 9 12:29:29 PDT 2020

Once the landlord has executed a lease they have taken the property off the
market. They have foregone the potential to lease it to others. They
frequently have obligated themselves to pay a broker a commission.
They have performed before the tenant moves in. I do think landlords are
entitled to the deposit unless their actions directly have created the
situation where the tenant could not move in.

Deborah Marks, PLLC
18495 S. Dixie Highway
Ste 134
Miami, FL 33157
305-372-9400
deborahmarkslaw at gmail.com
deborah at deborahmarks.law
synergy928 at aol.com

On Thu, Apr 9, 2020 at 3:12 PM Gregory R. Haney <GHaney at trenam.com> wrote:

> I’ll take your second argument/paragraph over your first any day of the
> week.  Otherwise, especially in the commercial leasing world where the
> space often needs to be built out first (at either or both parties’ great
> expense, and specifically for that tenant), such a concept would wreck
> certainty of contract.
>
>
>
> Yes, the lease once fully executed has all the necessary elements on its
> own – offer, acceptance, and mutual consideration, even if for a *future*
> leasehold right.  Failure to tender or take possession would be a breach,
> not a failure of a condition precedent to there actually being a contract.
>
>
>
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> *From:* landten-bounces at lists.flabarrpptl.org <
> landten-bounces at lists.flabarrpptl.org> *On Behalf Of *Jordan M Brill
> *Sent:* Thursday, April 9, 2020 2:22 PM
> *To:* RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org>
> *Subject:* Re: [RPPTL LandTen] Evictions still being filed?? / Force
> Majeure
>
>
>
> I would argue there is no tenancy created prior to the landlord delivering
> possession or the start date of the lease and that the tenancy isn’t
> created by signing the lease.  If you never become a tenant, what is there
> to terminate?  A lease is a contract.  A valid and enforceable contract
> requires offer, acceptance, and consideration…not just a signature. The
> principals of contract law would then apply. Two parties can sign a
> contract and either party may terminate / breach. In signing the standard
> lease, what consideration is being provided by the landlord to the tenant?
> The future leasehold interest?  The contract does not say what happens to
> the deposit in the event of a default, breach, or termination *prior to
> delivery of possession or lease commencement*.  Since the contract
> doesn’t say what happens to the security deposit, what principal is being
> relied on to retain the deposit?
>
>
>
> I guess now that I have talked this over, the argument for a landlord
> would be that the consideration provided is the future leasehold interest
> has been conveyed in exchange for the security deposit, and because the
> tenant breached the lease (by not making a payment) or anticipatorily
> breached by terminating prior to the start date, the landlord is entitled
> to retain the deposit.
>
>
>
> Jordan Marcus Brill, Esq.
>
> Glachman & Brill, P.A.
>
> 6421 Congress Ave., Suite 120
>
> Boca Raton, FL 33487
>
> (561)859-0679
>
> jordan at glachmanbrill.com
>
> www.glachmanbrill.com
>
>
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> *From:* landten-bounces at lists.flabarrpptl.org <
> landten-bounces at lists.flabarrpptl.org> *On Behalf Of *Harry Heist
> *Sent:* Thursday, April 9, 2020 1:25 PM
> *To:* 'RPPTL Landlord Tenant Committee' <landten at lists.flabarrpptl.org>
> *Subject:* Re: [RPPTL LandTen] Evictions still being filed?? / Force
> Majeure
>
>
>
> The tenant may have terminated the tenancy but the rent obligation comes
> from the lease.  Just like if you evict someone, you are terminating the
> tenancy, not the lease.  Am I off on this?
>
>
>
> There is no auto forfeiture of the security deposit provided for in the
> statute.  Once the lease date begins, if there is no new tenant in there,
> the tenant owes rent which of course is not paid, thus can be deducted from
> the Security Deposit after proper claim letter sent etc
>
>
>
> If a landlord were to find a new tenant that moved in at the lease start
> date, I feel the landlord would need to refund the deposit in full.
>
>
>
> Harry
>
>
>
>
>
>
>
>
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> 367 9038 "Serving the Property Management Professional" Website:  *
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> * Email: **harry at evict.com* <harry at evict.com>
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> *From:* landten-bounces at lists.flabarrpptl.org [
> mailto:landten-bounces at lists.flabarrpptl.org
> <landten-bounces at lists.flabarrpptl.org>] *On Behalf Of *Jordan M Brill
> *Sent:* Thursday, April 09, 2020 1:13 PM
> *To:* RPPTL Landlord Tenant Committee
> *Subject:* Re: [RPPTL LandTen] Evictions still being filed?? / Force
> Majeure
>
>
>
> I have always been curious what theory attorneys use to support the
> position that a landlord is entitled to keep a security deposit, under the
> standard lease for a residential property, if the tenant terminates the
> lease prior to the start of the lease.  The landlord has not provided any
> consideration and not tendered possession of the property.  There is no
> provision in the Florida bar standard residential lease which allows the
> landlord to retain the security deposit.  This is different from a far bar
> sale contract which explicitly sets forth what happens in the event of a
> default with respect to the deposit.
>
> *sent via mobile phone
>
> Jordan Marcus Brill, Esq.
> 6421 Congress Ave., Suite 120
> Boca Raton, FL 33487
> (561)859-0679
> jordan at glachmanbrill.com
> www.glachmanbrill.com
>
>
> The information contained in this email message is intended for review and
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>
> On Apr 9, 2020 1:08 PM, jeff at eannarinolaw.com wrote:
>
> Thanks Harry;
>
> I sense a judge may not be happy seeing a plaintiff in court trying to
> extort 2 month rent penalty from a tenant where contract language clearly
> provides for excusal of an obligation due to epidemic.
>
>
>
> Respectfully,
>
>
>
>    Jeff
>
>
>
> Jeffrey S. Eannarino
>
> Attorney at Law
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