The common problem: Your commercial tenant isn’t paying rent or is
has otherwise breached a lease and you want to take action. What are your options?
You can sit and wait and hope that they will start paying rent or remedy
the default. However, this rarely occurs.
You can file suit for the rent, but unless there is an easy way to collect
the damages, you have turned your uncollected lease obligation into a
Or, you can file suit for eviction.
There are many important considerations prior to doing so.
First, you need to determine if the tenant is in default under the Lease
and, if so, the type of default involved and whether such default gives
rise to a lawful basis for eviction. There are three situations when a
commercial landlord can file an action for eviction against a commercial
tenant: monetary default (failure to pay rent required by the lease),
non-monetary default of a material condition of the lease (a violation
of a condition that goes to the essence of the lease other than the payment
of rent) and holdover (tenants refusal to turn over possession of the
premises after expiration of the lease term). To do this, it is necessary
to examine the terms of your lease.
Once the nature of the default is clarified and it is determined that you
have a lawful basis for eviction, the commercial landlord’s and
tenant’s respective goals should be accessed. Generally, a commercial
landlord desires an income stream to avoid the cost of maintaining an
empty premises and the tenant usually wants to remain on the premises.
You should determine your purpose for bringing an eviction action and
consider whether an alternate option will better suit your needs.
Further, prior to actually filing a lawsuit for eviction, a default notice
must be properly drafted and served on the commercial tenant in accordance
with Florida statutes and your specific commercial lease. There are many
subtleties in default notices that require special consideration and attention.
For instance, there is a difference in the required statutory Notice of
Default for an eviction based on a monetary default versus non-monetary default:
In the event of a monetary default of a commercial lease, § 83.20(2),
Florida Statutes, requires the Landlord to serve the Tenant with three
days’ written notice demanding either the payment of the rent or
the surrender of the premises and, in the event of a non-monetary default
of a commercial lease,§ 83.20(3), Florida Statutes, requires the
Landlord to serve the Tenant with fifteen days’ written notice requiring
the cure of such breach or the surrender of the premises.
Also, if there is a guaranty agreement guarantying the commercial tenant’s
obligations the lease, it is important to check the terms of the guaranty
to determine whether the guarantor is contractually obligated to receive
a copy of any default notices sent to the commercial tenant.
If you are a
commercial landlord that is considering eviction, the experienced Florida commercial landlord
Rosenthal Law Group can help guide you through the pre-suit process to ensure that there are
no missteps that could negatively impact a later lawsuit.
Contact us today.