Can I get out of my commercial lease?

A question recently posed to me about a commercial leasehold was:

My business signed a lease for office space three years ago, which expires on Dec. 30 [Space 1].  Two years ago, we took over the adjacent space, but never signed a lease [Space 2].  We now need to move our office to another location.  Is there any way we can get out of this lease?

My response is:

Please Note: This article is not meant to provide legal advice or to form an attorney-client relationship; it is meant only to provide general information about this topic.  Each situation is factually distinct, therefore, it is best to consult with your attorney as to your particular circumstances.

Commercial leaseholds, written and oral, are controlled by Part I of Florida’s Landlord-Tenant Act, Chapter 83, Florida Statutes.  With regard to Space 1 for which you have a written and executed lease, that lease expires by its own terms on December 30.  If you have already paid December’s rent and have not given notice of intent to renew the lease under the terms allowing for that, then you can continue to occupy the premises until midnight December 30.  If you’d like to vacate sooner, you can approach the landlord and ask if the landlord will agree to a pro-rated refund of the December rent, e.g. if you move out on December 15, the landlord gives you half of the rent back.  If the landlord will not refund any of the December rent, you can still vacate at any time prior to December 30, but may have to use the court system to obtain a refund and would only be entitled to such refund if the landlord assumes possession and control of the premises for its own use and benefit.  The recovery of fees incurred in such a lawsuit may recoverable if you prevail and the lease so provides.  Costs are recoverable to the prevailing party under Florida’s Landlord-Tenant Act.

As to Space 2 for which you have no written lease and that you presently occupy, Florida law deems you a month-to-month tenant in that premises.  Because you have already paid the December monthly rent, you can continue to occupy that premises until December 31.  As with Space 1, if you indicate your desire to vacate now, the landlord may be willing to voluntarily refund part of the rent you have paid for this premises, however, only if the landlord assumes possession and control of the premises for its own use and benefit before the end of the term would you be entitled to a partial refund.  You may have to use the court system to obtain that refund and unlike the situation with Space 1, you would not automatically be entitled to recover attorneys’ fees incurred in such litigation under Florida’s Landlord-Tenant Act, but can still recover the costs if you prevail.

To be fair to the landlord, you should deliver a written notice stating that you intend to vacate both premises on or before December 30.  You should properly indicate that you are providing the notice as a courtesy to afford the landlord a full and fair opportunity to prepare to re-let both premises.

You may also include in your written notice that you are a month-to-month tenant on Space 2, that your written lease for Space 1 expires on December 30, and that you have no intention of renewing that written lease or extending your month-to-month tenancy.  You can request a pro-rate refund of the December rent if you move out sooner than December 30, and ask that the landlord contact you if the landlord is willing to agree to such an arrangement.

As an aside, if you cannot vacate by December 30 and will require additional time before you can move out, you can continue to occupy both premises and will simply become a month-to-month tenant at Space 1 from January 1.  However, even if the landlord accepts your January rent, be aware that the landlord can terminate that month-to-month tenancy and demand that you return the premises by the end of January.  However, such notice must be given to you in the first half of the month, must comply with Florida’s Landlord-Tenant Act, and must give you until the end of the month to move out.

Thus, the landlord can terminate your tenancy on Space 2 on or before December 15 and require that you vacate on December 31, but can’t terminate your tenancy on Space 1 in the same fashion because of the written lease.  However, in the interest of avoiding an unnecessary conflict, you are best served to deliver a written statement expressing your desires and intentions on December 16, indicating that you will either vacate by December 30 or that you need to stay until some point in January and would like to pay a pro-rata portion of the January rent if the landlord will agree to such an arrangement.  If you serve that notice after December 15, then the landlord may not terminate your tenancy on Space 2 in response because the time within which to do so under Florida’s Landlord-Tenant Act will have passed.  Naturally, however, come January 1, you must pay the January rent in the same amount you have been paying or the landlord will have the right to initiate an eviction proceeding against you in County Court.

As an aside, Florida’s Landlord-Tenant Act and case law interpreting those provisions, provide for a shortened response time to an eviction of five days from the date of service and mandate that the tenant pay rent into the Registry of the Court.  Failure to pay the amount of rent alleged in the lawsuit into the Registry within that period or to pay some amount in connection with an appropriate motion to determine the amount due will entitle the landlord to a default judgment for eviction and a writ of possession commanding the Sheriff to place the landlord into possession of the premises.  This is separate and apart from a claim for unpaid rent, which still adheres to the regular twenty-day response time under Florida’s Rules of Civil Procedure.

In conclusion, the appropriate time to consult with counsel who regularly practices commercial litigation is before your business is served with an eviction so your attorney can gather all of the relevant facts, educate you on your options, and potentially negotiate an amicable resolution to the situation or develop a response plan to any eviction action that the landlord may file.  Board Certified Business Litigation attorneys are recognized by the Florida Bar as experts in this area of the law.

In order to become Board Certified, these attorneys have established their experience through a required volume of cases, jury, and non-jury trials, have passed a rigorous and thorough examination in commercial litigation law, and have been reviewed and approved by Judges and attorneys that opposed them in trials and in the community.  You can obtain a complete listing of Board Certified Business Litigation attorneys by city from the Florida Bar’s website at http://www.flabar.org.

David Steinfeld, Esq.

Florida Bar Board Certified Business Litigation Lawyer

Martindale-Hubbell AV-Preeminent (Highest) Peer Review Rated

Contact me at:             dave@davidsteinfeld.com

 

Website:         www.davidsteinfeld.com

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