Commercial evictions in Florida are highly complex and technical and require strict compliance with the procedures governing same set forth in the Florida Statutes as further developed by applicable case law. Although some commercial landlords attempt to process Florida commercial evictions themselves, it is advisable to engage the services of a highly experienced and competent commercial real estate attorney who can carefully guide a commercial landlord through each step of a commercial eviction to ensure that the proper procedures are followed and that a commercial eviction filing results in a favorable outcome for the landlord. The attorneys at Bales & Bales, P.A. have extensive experience in successfully representing numerous Florida landlords in commercial evictions and assist Florida landlords in accomplishing their objectives of collecting past due rent and/or removing nonpaying tenants from possession so that high quality paying tenants occupy the limited spaces in the shopping centers, office buildings, warehouses and other structures owned and operated by Florida landlords which are the clients of Bales & Bales, P.A. The following is a general description of the commercial eviction process in Florida which is intended to provide Florida landlords with an overview of the steps involved in a commercial eviction and a realistic timeframe for same. However, as each tenant situation is unique it is advisable that Florida landlords consult with an experienced Florida real estate attorney who can properly advise and guide the landlord through the Florida commercial eviction process.
I. 3-DAY NOTICE FOR NONPAYMENT OF RENT
The majority of commercial eviction proceedings in Florida arise as a result of the tenant’s failure to pay the agreed rent set forth in the commercial lease agreement. The landlord’s remedy for the tenant’s failure to pay rent is statutory, and extremely careful attention needs to be paid to the provisions of Florida Statutes Chapter 83. As a condition precedent to filing a lawsuit to evict a commercial tenant for nonpayment of rent, the landlord must give a three-day notice in writing requiring the payment of rent or the tender of the possession of the premises. Florida Statute §83.20(2).
The statute requires that the notice be served on the tenant by actual delivery, or if the tenant is absent from the premises, by leaving a copy at the premises. Prior to serving the three-day noticethe lease agreement must be reviewed to determine whether any special notice provisions are contained within it. Copies of the three-day notice should be served on all of those specified within the lease agreement. Additionally, although not specifically required by the statute, the three-day notice should be delivered by certified mail, return receipt requested. If the notices are hand-delivered, the individuals making delivery should prepare and sign an affidavit similar to that completed by process servers. As a result, the landlord will be able to prove delivery of the three-day notice in the event the tenant disputes delivery of same.
If the tenant does not respond to the three-day notice within the requisite time, a complaint for commercial tenant eviction may be filed “stating the facts which authorize the removal of the tenant” and seeking summary procedure. Florida Statute §83.21.Florida Statute § 83.21 provides that landlords may utilize the summary procedure set forth in Florida Statute §51.011. This section provides, amongst other things, that all defenses of fact or law must be contained in the Defendant’s answer which must be filed within five (5) days after service of process. To further assist landlords, special rules apply with regard to the service of process. After two (2) unsuccessful attempts to obtain service by ordinary means, landlords are permitted to serve a tenant by posting the premises. In this event, the landlord must provide the Clerk of the Court with two (2) additional copies of the complaint together with pre-stamped envelopes addressed to the Defendant. The Clerk will mail these copies to the address designated in the lease and the last known business address of the tenant and will then file a certificate in the Court file evidencing the fact of mailing. Service of process will be deemed to be effective on the later of the date of the posting of the premises or the mailing by the Clerk, and at least five (5) days must pass from the date of service before final judgment will be entered. Florida Statute §83.22.
II. EVICTION FOR CAUSES OTHER THAN NONPAYMENT OF RENT
Commercial lease agreements impose substantial obligations on a tenant in addition to the obligation to pay rent which is due thereunder. Tenant obligations typically exist with respect to use of the premises, maintenance of the property, signage, tenant improvements, continuous operation, and numerous other matters as well. The tenant’s failure to comply with its non-monetary obligations under the commercial lease agreement can result in a breach which, if uncured, will give the landlord the right to evict the tenant. Although the basic procedures for eviction are identical for both monetary and non-monetary breaches, the landlord’s pre suit requirements can differ significantly.
Most commercial leases provide for notice to be given to the tenant in the event of non-monetary breach. These lease provisions generally provide the tenant with reasonable notice and an opportunity to cure. The commercial lease agreement must be reviewed to confirm that the tenant’s action is prohibited and to confirm if notice of such action is required under the lease. If the lease expressly sets forth the type and length of notice which is required to be provided to the tenant for non-monetary breaches, the notice provision in the lease agreement must be strictly complied with. If the lease is silent regarding notices for non-monetary breaches, Florida Statute §83.20(3) requires the landlord to provide fifteen (15) days written notice requiring cure of the breach or the tender of possession prior to commencing a commercial eviction proceeding.If the tenant does not cure the non-monetary default or tender possession of the premises required by the notice, the landlord may commence a suit to evict.
III. COMMERCIAL EVICTION LITIGATION
In many instances after a commercial eviction action is filed a defaulting tenant may attempt to assert that the payment of rent is excused by the landlord’s failure to comply with various provisions of the lease agreement. Unless the tenant specifically disputes the amount of past due rent sought in the eviction complain or asserts that the past due rent has been paid, the tenant must pay past due and accruing rent into the court’s registry, and if the tenant fails to do so according to court order, under Florida Statute §83.232 all of the tenant’s defenses will be deemed to be waived. It is advisable that upon the filing of their eviction complaint, landlords obtain an order of the court directing that past due and accruing rent be paid into the court’s registry. The tenant’s failure to pay rent after the entry of this court order entitles the landlord to an immediate default for possession without further notice or hearing. Florida Statute §83.232(5).
Although the tenant may assert any defenses which are related to the issues raised by the landlord in its eviction complaint, the ability to raise such defenses is conditioned upon the tenant’s compliance with the Court’s Order requiringpast due and accruing rent to be paid into the Courts’ registry. The Florida Legislature has directed the Courts, on their own motion, to provide such notice to tenants immediately upon the filing of the tenant’s initial pleading in response to the landlord’s complaint. Florida Statute §83.232(3). However, it is more common for most Courts to provide this notice to the tenant only upon motion of the landlord.
A common defense that tenants typically raise is that of constructive eviction. If, as a result of the wrongful acts of the landlord, the leased premises are unsafe, unfit or unsuitable for occupancy for the purposes for which they were leased to the tenant, a constructive eviction exists. Constructive eviction has been defined as an act “which although not amounting to an actual eviction, is done with the express or implied intention, and has the effect, of essentially interfering with the tenant’s beneficial enjoyment of the leased premises.” Hankins vs. Smith 138 So.2d 494 (Fla. 1931) at 495. In the event of a constructive eviction, the tenant is excused from paying rent to the landlord. However, in order for a constructive eviction to be deemed to have occurred, the tenant must give the landlord timely notice of its objection and a reasonable opportunity to make repairs. Boulevard Shoppes. AB vs. Pro/1 Realty, Inc. 605 So.2d 1317 (Fla. 4th DCA, 1992). If the landlord fails to affect a cure within a reasonable time of its receipt of notice, the tenant may abandon the premises. If, however, the tenant fails to abandon the premises within a reasonable time after the landlord’s failure to cure, the tenant will be prevented from asserting a claim of wrongful eviction. Kaplan vs. McCabe, 532 So.2d 1354 (Fla. 5th DCA, 1988).
IV. HOLDOVER TENANTS
Tenants who fail to vacate the leased premises at the end of the lease are commonly referred to as “holdover tenants.” Most commercial leases deal with the subject of holdover tenants, and provide a financial disincentive to the tenant in the form of increased rent obligations. If the lease agreement is silent on this point, Florida law provides that the landlord may demand and recover double the normal monthly rent together with interest. Florida Statute §83.06. The landlord’s right to claim double rent is not automatic, and a specific claim for double rent must be included in the landlord’s eviction complaint. Kobrowski vs. Kleen Wash. Inc. 572 So.2d 975 (Fla. 3rd DCA, 1990).
In the landlord’s complaint the lease agreement must be specifically referenced to permit the calculation of damages recoverable by the landlord. Thelandlord is entitled to recover past due rent together with interest, Court costs, and attorneys’ fees (if provision for same is made in the lease agreement).
Additionally, under certain circumstances landlords may be able to recover rent which will accrue under the lease agreement in the future. Most Florida commercial lease agreements set forth thevarious remedies available to the landlord upon the tenant’s breach. If the lease agreement permits the landlord to take possession of the premises for the account of the tenant, future rent may be accelerated subject to its reduction to present value. CB Institutional Fund VII vs. Gemballa USA, Inc. 566 So.2d 896 (Fla. 4th DCA, 1990). Although, if the lease agreement provides for its termination upon the landlord’s taking of possession of the premises, the landlord will be prohibited from accelerating the future rent. Grove Restaurant & Bar, Inc. vs. Razook 571 So.2d 596 (Fla. 2nd DCA 1990).
Commercial eviction cases in Florida are governed by the summary procedure set forth in Florida Statute §51.011. Discovery (with the exception of depositions) may be held only upon order of Court setting the time for compliance, and the pendency of discovery will not postpone trial except for good cause shown or by stipulation of the parties. Florida Statute §51.011(2). However, monetary judgments will be entered only in accordance with the Florida Rules of Civil Procedures. Florida Statute §83.231. If the landlord’s complaint includes a count for a money judgment, the tenant must be served with two (2) summonses (one requiring an answer to the eviction count within five (5) days of service and the other requiring an answer to the count seeking money damages within twenty (20) days of service).
Florida commercial eviction cases are tried in the same manner as any other case, but on an expedited basis. All defenses must be contained in the tenant’s answer which must be filed within five (5) days after service of process. If the tenant’s answer includes a counterclaim, the landlord has five (5) days from the service of the counterclaim in which to serve its defenses to the counterclaim, and no other pleadings are permitted. Florida Statute §51.011(2).
At the trial of a Florida commercial eviction case the landlord must be prepared to present testimony establishing the tenant’s default under the lease agreement and the service of a three-day notice on the tenant as required by Florida Statute §83.20. At the conclusion of trial, if the Court finds for the landlord, the Court has the power to enter a judgment for possession of the premises together with money damages sought in the complaint. Florida Statute §83.23 1.