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Pre-suit considerations: A behind the scenes look at what every commercial landlord should consider prior to filing a lawsuit for commercial eviction

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 uncollected judgment.

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 attorneys at 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.

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