As a commercial landlord, addressing a tenant’s failure to pay rent requires a clear understanding of your legal remedies, particularly when seeking to accelerate rent—the recovery of all future rent due under a lease in a lump sum. Florida law generally provides three common law remedies for a landlord upon a tenant’s breach, but the parties’ lease can modify these common law remedies. This principle, alongside requirements for accelerating rent, shapes your ability to recover damages.
The recent case of Hourglass Entertainment, LLC v. NRG Investments, Inc., 2025 WL 4237658 (Fla. 2d DCA 2025) in instructive to confirm that Florida law imposes strict requirements for accelerating rent, This article examines Hourglass, and other Florida cases to provide practical guidance for protecting your interests in lease disputes.
Requirement for an Acceleration Clause
To accelerate rent upon a tenant’s breach, your lease must include an explicit acceleration clause. Without it, Florida law prohibits recovering unaccrued rent in a lump sum. In Hourglass, the tenant defaulted on a parking lot lease in April 2021. The trial court awarded damages for the entire lease term, including four months of unaccrued rent from April to August 2024. The Second District reversed this portion, citing National Advertising Co. v. Main Street Shopping Center, 539 So. 2d 594 (Fla. 2d DCA 1989), and Williams v. Aeroland Oil Co., 155 Fla. 114, 20 So. 2d 346 (1944), which hold that rent is demandable only as specified in the lease. Since the Hourglass lease lacked an acceleration clause, the landlord could not recover unaccrued rent.
Landlord’s Remedies and the Primacy of Lease Provisions
When a tenant breaches a commercial lease, Florida law provides three common law remedies, as outlined in Williams v. Aeroland Oil Co., 155 Fla. 114, 20 So. 2d 346 (1944), and referenced in Hourglass, Balsam, Jimmy Hall’s Morningside, Wolf v. Buchman, Young v. Morris Realty, and Coast Federal:
- Retake Possession for Your Own Account: You may repossess the property for your own use, terminating the lease and the tenant’s liability for future rent.
- Retake Possession for the Tenant’s Account: You may repossess and attempt to relet the property, holding the tenant liable for the difference between the lease rent and amounts recovered in good faith from reletting.
- Await Rent Payments as They Accrue: You may choose not to repossess and sue for each rent installment as it becomes due or the full amount at the lease’s end.
However, Fence Wholesalers of America, Inc. v. Beneficial Commercial Corp., 465 So. 2d 570 (Fla. 4th DCA 1985), provides critical guidance that these remedies only apply when the lease doesn’t provide other remedies: “by its terms, ‘[a] lease, whether of real or personal property, may create or defeat the right to the value of the lease as damages even upon return of the property.’ There is no per se rule that the lessor’s recovery of the leased property precludes recovery of prospective rents under the lease.”
This language establishes that the three common law remedies apply only in the absence of lease provisions specifying alternative remedies. In Fence Wholesalers, the lease allowed the lessor to repossess equipment, sell it, and hold the lessee liable for remaining rent minus sale proceeds, overriding the common law remedies. The court upheld this approach, finding no double recovery since the proceeds were credited. As a landlord, carefully draft lease provisions to define your remedies, as they can supersede default common law options and shape your recovery rights.
Acceleration Clauses and Accounting for Future Rent
An acceleration clause permits you to demand all future rent upon default, but safeguards ensure fairness. In Jimmy Hall’s Morningside, Inc. v. Blackburn & Peck Enterprises, Inc., 235 So. 2d 344 (Fla. 2d DCA 1970), the court upheld an acceleration clause but mandated crediting proceeds from reletting for the tenant’s account to avoid double recovery. Coast Federal Savings & Loan Association v. DeLoach, 362 So. 2d 982 (Fla. 2d DCA 1978) noted that electing to relet for the tenant’s account required crediting the tenant with the proceeds. And, to protect tenants, Balsam v. South Palm Beach Financial Corp., 695 So. 2d 1267 (Fla. 4th DCA 1997), mandates that judgments awarding accelerated rent include a provision reserving jurisdiction to account for rent collected post-judgment through the lease term’s end. In Balsam, the Fourth District reversed a judgment for omitting this provision, citing Jimmy Hall’s Morningside and Quintero-Chadid Corp. v. Gersten, 582 So. 2d 635 (Fla. 3d DCA 1991), to prevent unjust enrichment.
Key Considerations for Commercial Landlords
The following principles from Fence Wholesalers, Hourglass, Balsam, and related cases are essential for managing lease defaults:
- Draft Lease-Specific Remedies: Fence Wholesalers emphasizes that lease provisions can override the three common law remedies. Include clauses allowing repossession, disposition, and recovery of remaining rent, as in Fence Wholesalers, to maximize flexibility.
- Include an Acceleration Clause: Without an explicit clause, you cannot recover unaccrued rent.
- Credit Reletting Proceeds: If you relet for the tenant’s account, credit proceeds against the tenant’s liability.
- No Duty to Mitigate Unless Elected: Young and Coast Federal confirm no common law duty to mitigate exists unless you elect to relet for the tenant’s account or the lease requires it.
- Choose Your Remedy Carefully: Retaking possession for your own use terminates the right to future rent.
As always, consulting with experienced legal professionals can help navigate these intricate issues and safeguard your business interests. Rosenthal Law Group is here to assist you for all your business litigation matters. You can reach us at www.rosenthalcounsel.com or (954) 384-9200.