A question recently posed to me about a commercial leasehold was: My business signed a lease for office space three years ago, which expires at the end of this month [Space 1].
Two years ago, the business took over the adjacent space, but never signed a lease [Space 2].
Now, the business wants to move its office.
Is there any way to get out of this lease? My response is: Commercial leaseholds, written and oral, are controlled by Part I of Florida's Landlord-Tenant Act.
With regard to Space 1 for which the business has a written and executed lease, that lease expires by its own terms at the end of this month.
If the business has already paid the rent and has not given notice of intent to renew the lease under the terms allowing for that, then the business can continue to occupy the premises until midnight of the last day of the month.
If, however, the business would like to vacate sooner, it can approach the landlord and ask if the landlord will agree to a pro-rated refund of the rent.
If the landlord refuses to refund any rent, the business can still vacate at any time prior to the last day of the month, but may have to use the court system to obtain a refund and may only be entitled to a 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 also recoverable if the business prevails and the lease so provides.
Fortunately, at least costs are statutorily recoverable to the prevailing party.
As to Space 2 for which the business has no written lease and that it presently occupies, Florida law deems the business a month-to-month tenant in that premises.
Because the business has already paid the rent for this month, it can continue to occupy that premises until midnight on the last day of the month.
As with Space 1, if the business indicates its desire to vacate now, the landlord may be willing to voluntarily refund part of the rent 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 the business be entitled to a partial refund.
The business may have to use the court system to obtain that refund and unlike the situation with Space 1, the business would not likely be entitled to recover attorneys' fees, but could recover the costs if it prevails.
To be fair to the landlord, the business should deliver a written notice stating that it intends to vacate both premises on or before the last day of the month.
The notice should properly indicate that the business is providing it as a courtesy to afford the landlord a full and fair opportunity to prepare to re-let both premises.
The Notice should include that the business is a month-to-month tenant in Space 2, that the written lease for Space 1 expires at the end of the month, and that the business has no intention of renewing the written lease or extending its month-to-month tenancy.
The Notice can request a pro-rata refund of the rent if the business pledges to move out sooner than the end of the month, and can ask that the landlord contact the business if it is willing to agree to such an arrangement.
As an aside, if the business cannot vacate by the end of the month and will require additional time, it can continue to occupy both premises and will simply become a month-to-month tenant at Space 1 from the beginning of next month.
However, even if the landlord accepts the next month's rent, be aware that the landlord can terminate that month-to-month tenancy and demand that the business return the premises by the end of next month.
However, that notice from the landlord must be given in the first half of next month, must comply fully with Florida's Landlord-Tenant Act, and must give the tenant until the end of next month to move out.
Thus, the landlord can terminate the business' tenancy on Space 2 on or before the middle of this month and require that it vacate on by the end of the month, but can't terminate the tenancy on Space 1 in the same fashion because of the written lease.
However, in the interest of avoiding an unnecessary lawsuit, the business is probably best served to deliver a written statement expressing its desires and intentions just after the middle of the month, indicating that it will either vacate by the end of the month or that it needs additional time into next month and would like to pay a pro-rata portion of next month's rent.
If the business serves that notice after the middle of the month, then the landlord may not terminate the 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, at the beginning of next month, the business must pay the rent in the same amount it has been paying or the landlord will have the right to evict the business.
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 and good faith 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 any claim for unpaid rent, which still adheres to the regular response time under Florida's Rules of Civil Procedure.
In conclusion, the appropriate time to consult with counsel who regularly practices commercial and business litigation is before your business is served with an eviction.
In this fashion, the business' attorney can gather all of the relevant facts, educate the business on its options, and negotiate an amicable resolution to the situation or develop a response to any eviction action that a landlord may file.
Board Certified Business Litigation attorneys are recognized by the Florida Bar as experts in this area of the law.
To become Board Certified, attorneys must establish their experience through a certain number of jury and non-jury trials, pass a thorough examination in commercial litigation law, and be 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.