[RPPTL LandTen] Evictions still being filed?? / Force Majeure
jeff at eannarinolaw.com
jeff at eannarinolaw.com
Thu Apr 9 13:00:57 PDT 2020
David/Deborah,
The FM provision states if “we” (LL) are prevented from completing performances … including epidemics… beyond the control of the “parties,” then we shall be excused from any further performance… Do you think a T could argue this is an adhesion contract; T claims this was a take it or leave it proposition with no ability to negotiate a reciprocal provision, that the FM provision is ambiguous, thus the provision should be in favor of the party who did not prepare the contract?
Respectfully,
Jeff
Jeffrey S. Eannarino
Attorney at Law
500 S. Australian Ave., Fifth Floor
West Palm Beach, FL 33401
Telephone: (561) 935-9024
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From: landten-bounces at lists.flabarrpptl.org <landten-bounces at lists.flabarrpptl.org> On Behalf Of Deborah Marks
Sent: Thursday, April 9, 2020 3:29 PM
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org>
Subject: Re: [RPPTL LandTen] Evictions still being filed?? / Force Majeure
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 <mailto:deborahmarkslaw at gmail.com>
deborah at deborahmarks.law <mailto:deborah at deborahmarks.law>
synergy928 at aol.com <mailto:synergy928 at aol.com>
On Thu, Apr 9, 2020 at 3:12 PM Gregory R. Haney <GHaney at trenam.com <mailto: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 <mailto:landten-bounces at lists.flabarrpptl.org> <landten-bounces at lists.flabarrpptl.org <mailto: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 <mailto: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
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From: landten-bounces at lists.flabarrpptl.org <mailto:landten-bounces at lists.flabarrpptl.org> <landten-bounces at lists.flabarrpptl.org <mailto: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 <mailto: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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From: landten-bounces at lists.flabarrpptl.org <mailto:landten-bounces at lists.flabarrpptl.org> [mailto: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
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On Apr 9, 2020 1:08 PM, jeff at eannarinolaw.com <mailto: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
500 S. Australian Ave., Fifth Floor
West Palm Beach, FL 33401
Telephone: (561) 935-9024
Fax: (561) 935-9022
Email: Jeff at eannarinolaw.com <mailto:Jeff at eannarinolaw.com>
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