[RPPTL LandTen] Anticipatory Breach - Does it Fly?
I sent out an e-mail yesterday with a scenario that I was looking for input
on..and I guess because it was Monday everyone was busy.so I am re-printing
below to see if anyone has any input..
Thanx.
I have a client, landlord, who was informed of a potential dead animal in
the attic of one of his tenants. He immediately had the area treated;
however, the flies kept coming back. After a couple of more treatments there
did not appear to be any more flies; however, the Tenant has become "fly
paranoid". The landlord abated the time period in which the premises were
treated as she had to temporarily vacate the premises.
Now there are no signs of the flies; however, the Tenant has sent a notice
of intent to vacate citing 83.51(1), although I believe she meant subsection
(2)..The question becomes, "How Many Flies Constitute Constructive
Eviction"?
Our intent is to hold the Tenant to the balance of the Lease term as the
Landlord has complied with his statutory obligations and there is no further
evidence of a problem.
Thank you for your input in this matter..
Les H. Stevens, Esquire
Les H. Stevens, P.A.
5301 North Federal Highway
Suite 130
Boca Raton, Florida 33487
Tel. - (561) 989-9797
Fax - (561) 989-8484
E-Mail - lesstevens@earthlink.net
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO
WHOM IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED,
CONFIDENTIAL AND/OR OTHERWISE EXEMPT FROM DISCLOSURE. IF YOU HAVE RECEIVED
THIS TRANSMITTAL IN ERROR, PLEASE DELETE IT AND NOTIFY THIS OFFICE
IMMEDIATELY
Les,
I am not aware of any specific authority (statutory or case law) that would answer your question of how many flies is too many. This would be a factual issue to be decided by the Judge. However, based on the way you describe it, I would say the L/L did the right thing and the T doesn't seem to have a valid reason to terminate the lease. Sounds like the L/L was responsive in a timely manner, but the T may be exaggerating the issue.
Hope that helps.
Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
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From: lesstevens lesstevens@earthlink.net
To: 'RPPTL Landlord Tenant Committee' landten@lists.flabarrpptl.org
Sent: Tuesday, April 24, 2012 2:59 PM
Subject: [RPPTL LandTen] Anticipatory Breach - Does it Fly?
I sent out an e-mail yesterday with a scenario that I was looking for input on….and I guess because it was Monday everyone was busy…so I am re-printing below to see if anyone has any input..
Thanx.
I have a client, landlord, who was informed of a potential dead animal in the attic of one of his tenants. He immediately had the area treated; however, the flies kept coming back. After a couple of more treatments there did not appear to be any more flies; however, the Tenant has become “fly paranoid”. The landlord abated the time period in which the premises were treated as she had to temporarily vacate the premises.
Now there are no signs of the flies; however, the Tenant has sent a notice of intent to vacate citing 83.51(1), although I believe she meant subsection (2)….The question becomes, “How Many Flies Constitute Constructive Eviction”?
Our intent is to hold the Tenant to the balance of the Lease term as the Landlord has complied with his statutory obligations and there is no further evidence of a problem.
Thank you for your input in this matter….
Les H. Stevens, Esquire
Les H. Stevens, P.A.
5301 North Federal Highway
Suite 130
Boca Raton, Florida 33487
Tel. - (561) 989-9797
Fax - (561) 989-8484
E-Mail - lesstevens@earthlink.net
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND/OR OTHERWISE EXEMPT FROM DISCLOSURE. IF YOU HAVE RECEIVED THIS TRANSMITTAL IN ERROR, PLEASE DELETE IT AND NOTIFY THIS OFFICE IMMEDIATELY
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Isn’t a constructive eviction an action taken or permitted by the Landlord that makes it impossible (either literally or figuratively) to occupy the premises? I agree with Cary that the circumstances control whether this is or is not a constructive eviction. If it is a restaurant and there are swarms of flies, there probably is a constructive eviction. If it is residential premises and the Tenant and there are some files (but no swarms), then probably not.
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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Tuesday, April 24, 2012 6:20 PM
To: lesstevens@earthlink.net; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Anticipatory Breach - Does it Fly?
Les,
I am not aware of any specific authority (statutory or case law) that would answer your question of how many flies is too many. This would be a factual issue to be decided by the Judge. However, based on the way you describe it, I would say the L/L did the right thing and the T doesn't seem to have a valid reason to terminate the lease. Sounds like the L/L was responsive in a timely manner, but the T may be exaggerating the issue.
Hope that helps.
Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.
From: lesstevens <lesstevens@earthlink.netmailto:lesstevens@earthlink.net>
To: 'RPPTL Landlord Tenant Committee' <landten@lists.flabarrpptl.orgmailto:landten@lists.flabarrpptl.org>
Sent: Tuesday, April 24, 2012 2:59 PM
Subject: [RPPTL LandTen] Anticipatory Breach - Does it Fly?
I sent out an e-mail yesterday with a scenario that I was looking for input on….and I guess because it was Monday everyone was busy…so I am re-printing below to see if anyone has any input..
Thanx.
I have a client, landlord, who was informed of a potential dead animal in the attic of one of his tenants. He immediately had the area treated; however, the flies kept coming back. After a couple of more treatments there did not appear to be any more flies; however, the Tenant has become “fly paranoid”. The landlord abated the time period in which the premises were treated as she had to temporarily vacate the premises.
Now there are no signs of the flies; however, the Tenant has sent a notice of intent to vacate citing 83.51(1), although I believe she meant subsection (2)….The question becomes, “How Many Flies Constitute Constructive Eviction”?
Our intent is to hold the Tenant to the balance of the Lease term as the Landlord has complied with his statutory obligations and there is no further evidence of a problem.
Thank you for your input in this matter….
Les H. Stevens, Esquire
Les H. Stevens, P.A.
5301 North Federal Highway
Suite 130
Boca Raton, Florida 33487
Tel. - (561) 989-9797
Fax - (561) 989-8484
E-Mail - lesstevens@earthlink.netmailto:lesstevens@earthlink.net
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND/OR OTHERWISE EXEMPT FROM DISCLOSURE. IF YOU HAVE RECEIVED THIS TRANSMITTAL IN ERROR, PLEASE DELETE IT AND NOTIFY THIS OFFICE IMMEDIATELY
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