Page 13 - Palm Beach Vol 6 No 2

Civil Litigation
A Cautionary Tale for Landlords Who Use Self-Help Remedies to Evict Tenants Who Are in Default
BAy Laurie ompson
recent decision issued by the
Fourth District Court of Appeals is a cautionary tale for landlords who think they can use “self-help”
remedies against their tenants. As dis- cussed in detail herein, for this particular landlord it was an expensive lesson.
In Palm Beach Fla. Hotel & O ce Bldg. Ltd. P’ship v. Nantucket Enters, 2016 Fla. App. LEXIS 18069, the tenant leased 20,281 square feet of space from the land- lord consisting of a restaurant, an atrium and gazebo, a ballroom area and two boardrooms, under the terms of a written lease agreement between the parties. Id. at 2. e tenant began renovating the res- taurant, but failed to acquire the correct building permits required by the city of Palm Beach Gardens. Id. at 3. As a result,
the city closed the restaurant and placed red tags on the doors, which indicated that the restaurant was unsafe for occupancy. Id. On the same day, the landlord placed chains and locks on the doors to the kitch- en area, the restaurant area and the ten- ant’s back o ces. Id. e landlord subse- quently terminated the lease between the parties, and had the police escort the ten- ant’s employees from the building, causing the tenant to cease to operate its business on the premises. Id.
e trial court found that the tenant was entitled to a directed verdict for wrong- ful eviction and was awarded damages for that claim in the amount of $8.8 mil- lion. Id. at 7. In its opinion, upholding the lower court’s decision, the Fourth District Court of Appeals made it clear that pur- suant to Florida Statute section 83.05(2) there are only three ways to take posses- sion of a rented premise from a tenant. Id. at 5. e court held those three methods to be: (1) in an action for possession un- der section 83.20 or other civil action in which the issue of right of possession is determined; (2) when the tenant has sur- rendered possession of the rented prem- ises to the landlord; or (3) when the ten- ant has abandoned the rented premises. Id. e court’s decision made it clear that these are the only three methods to recov- er rented premises from a tenant, even if the lease between the parties’ states oth- erwise.
Speci cally, in this particular case the lease between the parties gave the land- lord the right to retake possession of the rented premises upon the tenant’s default when it stated as follows:
[I]f and whenever any Event of De- fault by Tenant shall occur, Landlord may a er the continued Tenant de- fault a er the expiration of the time to cure ... at is option and without fur- ther written notice to Tenant, in addi- tion to all other remedies given here- under or by law or equity, do any one or more of the following: (i) terminate the Lease, in which event Tenant shall immediately surrender possession of the Leased Premises to Landlord; (ii) enter upon and take possession of the Leased Premises and expel or remove
Tenant and any other occupant there- from with or without having termi- nated the lease . . . . Landlord shall not be deemed to have violated any right of Tenant and shall not be deemed to be guilty of trespass, conversion or any other criminal or civil action as a result of such action. Id. at 2-3.
However, even though the parties had agreed to this remedy in the event of a default by the tenant, the court held that the statute abrogated the landlord’s right to obtain pos- session – unless an action for possession is led in every case in which a tenant remains on the premises a er having been given a three-day notice. Id. at 5. Accordingly, the landlord was not entitled to use self-help remedies, even though such remedies were speci cally authorized by the terms of the lease.
is is a cautionary tale for all landlords who question whether the time and expense involved in obtaining a writ of possession through an eviction proceedings is necessary. e answer is yes or they have the potential to get a multimillion-dollar judgment against them in favor of their defaulting tenant.
Laurie Thompson is a partner at Weiner & Thompson P.A. and practices in the area of commercial litigation in both state and federal courts. Ms. Thompson is a past president of the South Palm Beach County chapter of the Florida Association for Women Lawyers and is the development director and executive board member for the State Florida Association for Women Lawyers. For more information, please email [email protected] or call (561) 265-2666.
The trial court found that the tenant was entitled to a directed verdict for wrongful eviction and was awarded damages for that claim in the amount of $8.8 million.
Vol. 6 No. 2 Attorney at Law Magazine® South Florida | 13