A 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 discussed in detail herein, for this particular landlord it was an expensive lesson.
In Palm Beach Fla. Hotel & Office Bldg. Ltd. P’ship v. Nantucket Enters, 2016 Fla. App. LEXIS 18069, the tenant leased 20,281 square feet of space from the landlord 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. The tenant began renovating the restaurant, 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 kitchen area, the restaurant area and the tenant’s back offices. Id. The landlord subsequently terminated the lease between the parties, and had the police escort the tenant’s employees from the building, causing the tenant to cease to operate its business on the premises. Id.
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. Id. at 7. In its opinion, upholding the lower court’s decision, the Fourth District Court of Appeals made it clear that pursuant to Florida Statute section 83.05(2) there are only three ways to take possession of a rented premise from a tenant. Id. at 5. The court held those three methods to be: (1) in an action for possession under section 83.20 or other civil action in which the issue of right of possession is determined; (2) when the tenant has surrendered possession of the rented premises to the landlord; or (3) when the tenant has abandoned the rented premises. Id. The court’s decision made it clear that these are the only three methods to recover rented premises from a tenant, even if the lease between the parties’ states otherwise.
Specifically, in this particular case the lease between the parties gave the landlord 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 Default by Tenant shall occur, Landlord may aft er the continued Tenant default after the expiration of the time to cure … at is option and without further written notice to Tenant, in addition 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 therefrom with or without having terminated 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 possession – unless an action for possession is filed in every case in which a tenant remains on the premises after 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 specifically authorized by the terms of the lease.
This 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. The answer is yes or they have the potential to get a multimillion-dollar judgment against them in favor of their defaulting tenant. Laurie Thompson
