Landlord Law and Litigation
Commercial Lease Drafting
Commercial leases differ from residential leases substantially because the law generally assumes that the parties to a commercial lease are sophisticated and do not rely on consumer protections provided by statute. For example, in a commercial setting, the landlord and tenant can agree to waive certain statutory pre-suit notices which are required in residential lease relationships. Carefully drafting a commercial lease which best suits your needs can be crucial to protecting your rights. Litigation is the wrong time to begin to understand the technical provisions of a commercial lease.
Commercial and Residential Eviction
Possession and Damages
Deciding how to proceed in an eviction case should be a calculated business decision. There two main components to an eviction case. First, the landlord is seeking possession based on some default by the tenant. This is Count I: Possession and is initiated by serving a summons and copy of the complaint which instructs the tenant that he/she has 5 days to respond or face a default judgment. This portion of the Complaint can be served by posting at the property in a conspicuous place. However, if the landlord has suffered damages, there must be some discussion as to how to proceed on Count II: Damages. A claim for damages requires that the landlord serve the tenant with a normal summons and copy of the complaint, which will allow the tenant 20 days to respond. This service must be personally to the tenant, or an individual at the premises who is over the age of 15. This type of service cannot be posted. Florida Statute Chapter 83.48 allows for attorney’s fees and costs to be awarded to the prevailing party in a civil action for eviction and damages.
Mobile Home Park Owner Law
Mobile Home Park Owners are governed by The Florida Mobile Home Act, found in Florida Statute Chapter 723. The Act governs the relationship between Mobile Home Park Owners and Mobile Home Owners who reside within the park and contains specific provisions which determine the rights and remedies of both. In the lot rental context the Florida Residential Landlord Tenant Act does not apply. However, there are several scenarios where a Mobile Home Park Owner must be aware of both statutory chapters. For example, when a Mobile Home Owner rents a lot from the Park Owner, the Mobile Home Act applies. If a resident rents both the mobile home and the lot from the Park Owner, the Residential Landlord Tenant Act applies. Failing to understand the differences between the two laws and the application of each can be costly.
Recreational Vehicle Park Owner Law
Florida law allows a land owner to obtain licensure as a Recreational Vehicle Park. Recreational Vehicle Parks often contain a campground component, and may contain certain lots available for mobile home lot rentals. Recreational vehicle tenants fall into two main categories: transient and nontransient. A nontransient recreational vehicle tenant is one who has been present at the Park for 6 months or more. In this scenario the law creates a presumption that the tenant in nontransient and the eviction law contained within the Florida Residential Landlord Tenant Act found at Florida Statute Chapter 83 will apply.
3 Day Notice to Pay Rent or Give Possession
A Three (3) day notice (‘3 Day Notice”) is a statutory condition precedent to filing an action for eviction for failure to pay rent. A 3 Day Notice must be properly served in accordance with Florida Statute Chapter 83.56(3) and relevant case law. Failure to properly serve the 3 Day Notice will result in dismissal of the Complaint for Eviction. A 3 Day Notice must specify the date on which payment must be received. The final date for payment is calculated by counting three business days beginning on the day after service, and excluding Saturdays, Sundays and legal holidays. The day after the final day specified in the 3 Day Notice for payment is the first day the landlord may file a Complaint for Eviction. A 3 Day Notice must also specify where payment is to be made to the landlord and the amount past due. If payment is to be made to the landlord by mail, the 3 Day Notice must add 5 days for mailing to the calculation by adding 5 business days after the last day for payment, excluding Saturdays, Sundays and legal holidays. If a landlord accepts partial payment after serving a 3 Day Notice, the previously served notice is voice and must be replaced with a new 3 Day Notice specifying the new amount past due.
7 Day Notice of Material Noncompliance
A landlord or tenant may serve a statutory seven (7) day notice of material noncompliance (“7 Day Notice”) to identify a breach of the residential lease, other than the nonpayment of rent. 7 day notices fall into two categories: material breach with opportunity to cure, and material breach without the opportunity to cure. If the noncompliance is such that there should be an opportunity to cure, the landlord cannot evict unless the notice has expired and the tenant has failed to cure. However, if the tenant commits the same noncompliance within a 12 month period, the landlord may evict without giving an opportunity to cure. If the noncompliance is such that the tenant shall not be allowed the opportunity to cure, the tenant must give possession within 7 days or be subject to eviction.
15 Day Lease Termination
A tenancy at will is one which automatically renews at the beginning of each rental period, but is not restricted by a specific termination date. Most commonly in the residential context, a tenancy at will is for a month to month duration. Such a tenancy at will can be terminated by either party by proper service of a notice 15 days prior to the end of the then current rental period.