In order to gain a greater understanding of the laws surrounding Commercial (non-residential) evictions, it is necessary to read through the applicable laws and regulations. In general, Commercial evictions are more complicated than Residential evictions leading to a slightly lengthier litigating process and requiring extensive legal knowledge.
What is a commercial tenant?
- Commercial tenants are businesses that do not own their store or office space
Under what circumstances would a commercial tenant be evicted?
- In most cases, tenants are evicted because they cannot pay rent. A tenant may also be evicted if there is a breach in the lease agreement, such as damaging the property or sub-leasing the space. There are countless reasons a landlord may seek a commercial lease eviction because every lease agreement between commercial landlord and tenant is unique.
What is the Commercial Property Eviction process?
- Landlord notifies the tenant that an eviction is imminent
- If the eviction is related to non-payment, the landlord may give the tenant a three-day notice to pay rent or quit (unless the Lease prescribes a different amount of time or waives the requirement of a notice altogether) (Fla. Stat. Ann. 83.20)
- If there is a violation of the lease that can be corrected, a landlord can give the tenant a fifteen-day (15) notice to cure the violation (unless the Lease prescribes a different amount of time) or vacate as required under (Fla. Stat. Ann. 83.20(3))
- If there is a violation of the lease, but the landlord does not want to give the tenant time to fix or cure the violation because of the serious nature of the violation, then the landlord can give the tenant an unconditional vacate notice if provided for in the Lease. Upon the expiration of the vacate period, and the Tenant’s failure to relinquish possession, Landlord may file suit for eviction against the Tenant.
- If the landlord wants to terminate a tenancy without cause and the lease is month to month or doesn’t have a specific duration, then the Landlord may give a written notice which must be provided a certain amount of days’ in advance. The number of days’ notice varies as follows ( Stat. Ann. 83.03):
- Year to year tenancy = 60 days’ notice
- Quarter to quarter tenancy = 30 days’ notice
- Month to month tenancy = 15 days’ notice
- Week to week to tenancy = 7 days’ notice
- A landlord cannot terminate a fixed-term lease without cause and must wait until the end of the term to do so, unless the tenant defaults in some other way.
- All notices should include the basis for default, outstanding rent owed (if any) and where it is to be paid, date of default and the time to cure (if any), and any other information required by the terms of the lease
- Once the time specified in the initial notice has expired (weekends and holidays are not included unless its a Notice to Cure), the landlord should file an eviction complaint with the appropriate court. The tenant will have five days to respond.
- After the claims and counterclaims have been filed properly, a hearing date will usually be set by the court shortly after filing if the case if contested by the tenant.
- While eviction is pending, the tenant must tender unpaid rent and all rent which comes due while the eviction case is pending into the court’s registry. The tenant will not be allowed to remain in possession during the eviction litigation without paying rent into the court registry.
- If the landlord wins, the tenant will be required to immediately vacate. If the tenant fails to vacate despite a final judgment for possession, then the Landlord will have a sheriff will post a notice to vacate the property and if the tenant fails to leave, the sheriff will return and forcibly remove the tenants, if necessary, while landlord changes the locks.
What options does a landlord have if their tenant defaults under the lease?
There are 3 options:
- Retake possession after obtaining a judgment for possession and try to find a new tenant. The former tenant would be liable for any difference between their rent and the new tenant’s rent. The landlord has a duty to mitigate its damages by trying to re-rent the property.
- Retake possession for the landlord’s own use and waive any remaining rent that would have been due under the lease contract
- Do nothing and sue the tenant as each rent installment matures or for the full amount of the rental due when the term ultimately ends
As a landlord, can I just re-take possession of the premise by changing the lock myself?
- This is a common example of “self-help”, which is illegal under Florida law. A landlord who conducts any “self-help” eviction without going through the proper judicial channels may be held liable to pay the tenant the cost of the damages or 3 months rent, whichever is greater. The court can also order the landlord pay the tenant’s court costs and attorney fees. Other “self-help” actions that are illegal under Florida law are:
- Removing tenant’s possessions
- Cutting off utilities
- Removing doors, locks, roofs, walls, or windows
- A landlord could retake possession in three exclusive ways:
- Court action (see above)
- Tenant voluntarily surrenders possession.
- Tenant abandons the premise.
What should a Commercial landlord do if their evicted tenant has left personal property in the rental unit?
- The landlord must notify the tenant in writing of the abandoned personal property. The tenant must have at least 10 days to claim the property if the notice was personally delivered or 15 days if the notice was mailed. If the tenant does not claim the property, the landlord can either dispose of it or sell it through a meticulously outlined procedure required under Florida law
How do Commercial Evictions differ from Residential Evictions?
- Commercial and residential evictions have separate procedures and protections according to Florida law. The statutes dealing with commercial evictions can be found in Title VI Chapter 83 Part I. The statutes dealing with residential evictions can be found in Title VI Chapter 83 Part II.
- Commercial lease agreements tend to be much more complex than a residential lease agreement for several reasons.
- The rights of a commercial landlord & tenant are largely dependent upon what is in the lease agreement, which varies based on the needs of each landlord & tenant and the type of non-residential space being rented. The terms of commercial lease agreements are also usually more heavily negotiated than residential leases.
- Residential tenants have consumer laws that provide them with more protection against deceitful landlord practices, whereas a commercial tenant does not due to the assumption they are more knowledgeable and sophisticated. However, commercial landlords can still be liable for self-help eviction, which is illegal under Florida law.
- Commercial lease terms have longer terms compared to residential lease agreements and usually outlined events of default with greater specificity than the Landlord Tenant Act.
All in all, commercial leases are more complex and unique, which usually results in a longer and more complicated eviction process requiring the greater knowledge and expertise in landlord tenant law. At Edelboim Lieberman Revah Oshinsky, our attorneys have decades of experience dealing with commercial landlord tenant disputes. Contact our firm today for a free consultation.
- Before signing a commercial lease agreement, it is extremely important for both Landlord and Tenant to conduct the proper due diligence and to carefully investigate the terms of the lease agreement prior to signing. Some important lease terms that you should be aware of:
- Lease term – the length of the lease agreement i.e. 24 months
- Rent amount – the monetary amount due based on the square footage of the space and other costs such as utilities, property taxes, insurance, repairs, etc.
- Type of lease and what the rent payment covers
- Rent escalation – the annual percentage-based rent increase
- Security Deposit – the amount required and the terms regarding its return
- Specifications of the space being rented – the lease should clearly describe the property under lease
- Improvements & Maintenance – the lease should state what improvements or modifications can be made to the property and who is responsible for paying
- A typical Improvements Clause would like the following:
Tenant shall not make or allow to be made any alterations or physical additions in or to the premises without first obtaining the written consent of landlord, which consent may not be unreasonably withheld. any alterations, physical additions or improvements to the premises made by tenant shall at once become the property of landlord and shall be surrendered to landlord upon the termination of this lease; provided, however, landlord, as a condition to its consent to any proposed alteration or addition, may require tenant to remove any physical additions and/or repair any alterations in order to restore the premises to the conditions existing at the time tenant took possession, all costs of removal and/or alterations to be borne by tenant. this clause shall not apply to moveable equipment or furniture owned by tenant, which tenant shall have the right to mortgage, and which may be removed by tenant at any time and from time to time. landlord agrees to cooperate with tenant in connection with any financing tenant elects to place on its equipment and personal property, including execution of such certificates and documents as tenant’s lender may reasonably request.
- Use of Premises Clause – defines the activities the tenant can engage in on the premises of the property
- A typical Use Clause would like the following:
The premises shall be occupied and used exclusively as office/retail/warehouse/restaurant/etc. space and for the purposes incidental thereto, and shall not be used for any other purpose. Tenant will not use or occupy or permit the use or occupancy of the premises for any purpose which is forbidden by law, ordinance or governmental or municipal regulation or order or which may be dangerous to life, limb or property; or permit the maintenance of any public or private nuisance; or do or permit any other thing which may disturb the quiet enjoyment of any other tenant of the building; or keep any substance or carry on or permit any operation which might emit offensive odors or conditions into other portions of the building or the environment, or use any apparatus which might make undue noise or set up vibrations in the building; or permit anything to be done by tenant, its employees, agents, contractors or invitees which would increase the fire and extended coverage insurance rate on the building or contents, provided that if there is any increase in such rate by reason of acts of tenant, then tenant agrees to pay such increase promptly upon demand therefore by landlord. Payment by tenant of any such rate increase shall not be a waiver of tenant’s duty to comply herewith.
- Exclusivity Clause – promise by the landlord to a tenant that no other tenant on the property may engage in a particular type of business or carry a certain type of merchandise
- A typical Exclusivity Clause would like the following:
Landlord covenants and agrees not to lease the use of space in the property, without tenant’s prior written consent (which tenant may grant or withhold in tenant’s sole discretion), to any third party that operates a “competing business”. for the purpose of this lease, a “competing business” shall be defined as a business in competition with tenant’s business.
- Merger Clause – provides that all agreements, representations, warranties, etc. regarding the lease are set froth within the lease document. Any terms outside of the lease are of no force or effect.
- A typical Merger Clause would like the following:
This lease contains the entire agreement between landlord and tenant regarding the premises which are the subject of this lease and may only be altered by a written agreement executed by both landlord and tenant.
- Waiver of Jury Trial Clause – this indicates that the parties waive their Seventh Amendment right to a trial by jury if there is any dispute arising out of or relating to the agreement or the transaction
- A typical Waiver of Jury Trial Clause would like the following:
Both landlord and tenant hereto hereby irrevocably waive, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal proceeding directly or indirectly arising out of or relating to this lease agreement hereby or thereby (whether based on contract, tort or any other theory). Both landlord and tenant hereto (a) certifies that no representative, agent or attorney of any other person has represented, expressly or otherwise, that such other person would not, in the event of litigation, seek to enforce the foregoing waiver and (b) acknowledges that it and the other parties hereto have been induced to enter into this lease agreement by, among other things, the mutual waivers and certifications in this section.
- No Waiver Clause – ensures that a party to the contract does not accidentally or informally waive its rights to bring proceedings and recover damages under the contract in the event of a breach of the contract by the other party
- A typical No Waiver Clause would like the following:
The failure of any party hereto to exercise any right, power or remedy provided under this agreement or otherwise available in respect hereof at law or in equity, or to insist upon compliance by any other party hereto with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver by such party of its right to exercise any such or other right, power or remedy or to demand such compliance.
- Force Majeure Clause – removes liability for natural, unpredictable, and unavoidable catastrophes that disrupt the anticipated sequence of events and prevent parties in a contract from fulfilling obligations
- A typical Force Majeure Clause would like the following:
Neither the landlord nor the tenant shall be liable for any failure or delay in performance of its obligations under this agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of god; earthquakes; fires; floods; wars; civil or military disturbances; acts of terrorism; sabotage; strikes; epidemics; riots; power failures; computer failure and any such circumstances beyond its reasonable control. notwithstanding the foregoing, in the event of such an occurrence, each party agrees to make a good faith effort to perform its obligations hereunder.
Right to Sublet. Tenant shall not sublease or assign the Premises without the written approval of Landlord, but such approval shall not be unreasonably withheld. No permitted subleasing or assignment shall relieve Tenant from any obligations on its part imposed by this Lease Agreement. Tenant agrees to reimburse Landlord for any costs and expenses (including reasonable attorney’s fees) incurred by Landlord in connection with Tenant’s assignment or subletting.
- Lease Termination – define the instances that a lease may be terminated and the notice requirements
The information contained on this page should not be construed as legal advice.