Members:  My understanding is that once a written lease expires and the
tenant remains in possession with the landlord's consent on a month-to-
month basis, the material terms of the original lease agreement survive.
Question:  If the lease required the tenant to provide 60-days' notice of
his/her intent to vacate, does that provision survive or may the tenant
provide the 15-days' notice prior to the end of the month-to-month lease
term?

Any thoughts or case law is appreciated.  Thank you.

Regards,

AJH Logo mark

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

2255 Glades Road, Suite 324A

Boca Raton, Florida 33431

T: 561.989.3206

F. 561.989.3204

http://www.horkylaw.com www.horkylaw.com

This message and the documents attached to it, if any, are intended only for
the use of the addressee and may contain information that is attorney-client
privileged or confidential, and/or may contain attorney work product.  If
you are not the intended recipient, you are hereby notified that any
dissemination of this communication is strictly prohibited. If you have
received this communication in error, please delete all electronic copies of
this message and its attachments, if any, destroy any hard copies you may
have created and notify me immediately at:  mailto:ahorky@horkylaw.com
ahorky@horkylaw.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by the
IRS under Circular 230, we inform you that any U.S. federal tax advice
contained in this communication (including any attachments), unless
otherwise specifically stated, was not intended or written to be used, and
cannot be used, for the purpose of (1) avoiding penalties under the Internal
Revenue Code or (2) promoting, marketing or recommending to another party
any matters addressed herein.

I feel that a "month to month" tenancy only requires at least 15 days prior
to the beginning of the next monthly rental period regardless of what the
prior written lease says although if the lease requires the LANDLORD to give
more than 15 days, it would be hard to get the LANDLORD out of it.

I have no cases BUT, years ago when we were getting the liquidated damages
into the law, and the penalty  for no notice prior to lease end, the
Governor at the time was real clear on the fact that we could not require
more than 15 days notice on month to month and the feeling was that the
whole essence of month to month is the 15 day deal.

As far as the survival of other lease terms/clauses, rent, late fees, etc I
feel they do survive.

Harry

LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  www.evict.com http://www.evict.com/
Email: harry@evict.com

THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND
INTENDED FOR THE PERSONS NAMED ABOVE ONLY.  ALL OTHER USE, COPYING, OR
DISTRIBUTION IS STRICTLY PROHIBITED.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Wednesday, May 22, 2013 5:47 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Survival of Material Lease Terms

Members:  My understanding is that once a written lease expires and the
tenant remains in possession with the landlord's consent on a month-to-
month basis, the material terms of the original lease agreement survive.
Question:  If the lease required the tenant to provide 60-days' notice of
his/her intent to vacate, does that provision survive or may the tenant
provide the 15-days' notice prior to the end of the month-to-month lease
term?

Any thoughts or case law is appreciated.  Thank you.

Regards,

AJH Logo mark

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

2255 Glades Road, Suite 324A

Boca Raton, Florida 33431

T: 561.989.3206

F. 561.989.3204

www.horkylaw.com

This message and the documents attached to it, if any, are intended only for
the use of the addressee and may contain information that is attorney-client
privileged or confidential, and/or may contain attorney work product.  If
you are not the intended recipient, you are hereby notified that any
dissemination of this communication is strictly prohibited. If you have
received this communication in error, please delete all electronic copies of
this message and its attachments, if any, destroy any hard copies you may
have created and notify me immediately at:  mailto:ahorky@horkylaw.com
ahorky@horkylaw.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by the
IRS under Circular 230, we inform you that any U.S. federal tax advice
contained in this communication (including any attachments), unless
otherwise specifically stated, was not intended or written to be used, and
cannot be used, for the purpose of (1) avoiding penalties under the Internal
Revenue Code or (2) promoting, marketing or recommending to another party
any matters addressed herein.

I would argue that the "extended notice" was a negotiated item as
consideration of the Lease, but since they Tenant has now breached by
holding over, that is not what was "bargained for" by the Landlord and that
the provision for "extended notice" would no longer apply and the Statute
for month-to-month tenancies would control.I do not believe the Tenant can
"hide behind" the provision.

Any thoughts?

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

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Heist, Weisse &
Wolk
Sent: Thursday, May 23, 2013 10:30 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I feel that a "month to month" tenancy only requires at least 15 days prior
to the beginning of the next monthly rental period regardless of what the
prior written lease says although if the lease requires the LANDLORD to give
more than 15 days, it would be hard to get the LANDLORD out of it.

I have no cases BUT, years ago when we were getting the liquidated damages
into the law, and the penalty  for no notice prior to lease end, the
Governor at the time was real clear on the fact that we could not require
more than 15 days notice on month to month and the feeling was that the
whole essence of month to month is the 15 day deal.

As far as the survival of other lease terms/clauses, rent, late fees, etc I
feel they do survive.

Harry

LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  www.evict.com http://www.evict.com/
Email: harry@evict.com

THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND
INTENDED FOR THE PERSONS NAMED ABOVE ONLY.  ALL OTHER USE, COPYING, OR
DISTRIBUTION IS STRICTLY PROHIBITED.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Wednesday, May 22, 2013 5:47 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Survival of Material Lease Terms

Members:  My understanding is that once a written lease expires and the
tenant remains in possession with the landlord's consent on a month-to-
month basis, the material terms of the original lease agreement survive.
Question:  If the lease required the tenant to provide 60-days' notice of
his/her intent to vacate, does that provision survive or may the tenant
provide the 15-days' notice prior to the end of the month-to-month lease
term?

Any thoughts or case law is appreciated.  Thank you.

Regards,

AJH Logo mark

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

2255 Glades Road, Suite 324A

Boca Raton, Florida 33431

T: 561.989.3206

F. 561.989.3204

www.horkylaw.com

This message and the documents attached to it, if any, are intended only for
the use of the addressee and may contain information that is attorney-client
privileged or confidential, and/or may contain attorney work product.  If
you are not the intended recipient, you are hereby notified that any
dissemination of this communication is strictly prohibited. If you have
received this communication in error, please delete all electronic copies of
this message and its attachments, if any, destroy any hard copies you may
have created and notify me immediately at:  mailto:ahorky@horkylaw.com
ahorky@horkylaw.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by the
IRS under Circular 230, we inform you that any U.S. federal tax advice
contained in this communication (including any attachments), unless
otherwise specifically stated, was not intended or written to be used, and
cannot be used, for the purpose of (1) avoiding penalties under the Internal
Revenue Code or (2) promoting, marketing or recommending to another party
any matters addressed herein.

Thanks Les and Harry.  In my case, the landlord has made a claim on the
tenant's security deposit after the tenant gave 30 days' notice that it was
terminating the month to month tenancy.  Landlord claims that tenant needed
to provide 60-days' notice per the lease although the lease expired and the
tenant has been living there, with landlord's consent, on a month to month
basis.

Regards,

AJH Logo mark

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

2255 Glades Road, Suite 324A

Boca Raton, Florida 33431

T: 561.989.3206

F. 561.989.3204

www.horkylaw.com

This message and the documents attached to it, if any, are intended only for
the use of the addressee and may contain information that is attorney-client
privileged or confidential, and/or may contain attorney work product.  If
you are not the intended recipient, you are hereby notified that any
dissemination of this communication is strictly prohibited. If you have
received this communication in error, please delete all electronic copies of
this message and its attachments, if any, destroy any hard copies you may
have created and notify me immediately at:  mailto:ahorky@horkylaw.com
ahorky@horkylaw.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by the
IRS under Circular 230, we inform you that any U.S. federal tax advice
contained in this communication (including any attachments), unless
otherwise specifically stated, was not intended or written to be used, and
cannot be used, for the purpose of (1) avoiding penalties under the Internal
Revenue Code or (2) promoting, marketing or recommending to another party
any matters addressed herein.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of lesstevens
Sent: Thursday, May 23, 2013 10:56 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I would argue that the "extended notice" was a negotiated item as
consideration of the Lease, but since they Tenant has now breached by
holding over, that is not what was "bargained for" by the Landlord and that
the provision for "extended notice" would no longer apply and the Statute
for month-to-month tenancies would control.I do not believe the Tenant can
"hide behind" the provision.

Any thoughts?

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

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Heist, Weisse &
Wolk
Sent: Thursday, May 23, 2013 10:30 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I feel that a "month to month" tenancy only requires at least 15 days prior
to the beginning of the next monthly rental period regardless of what the
prior written lease says although if the lease requires the LANDLORD to give
more than 15 days, it would be hard to get the LANDLORD out of it.

I have no cases BUT, years ago when we were getting the liquidated damages
into the law, and the penalty  for no notice prior to lease end, the
Governor at the time was real clear on the fact that we could not require
more than 15 days notice on month to month and the feeling was that the
whole essence of month to month is the 15 day deal.

As far as the survival of other lease terms/clauses, rent, late fees, etc I
feel they do survive.

Harry

LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  www.evict.com http://www.evict.com/
Email: harry@evict.com

THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND
INTENDED FOR THE PERSONS NAMED ABOVE ONLY.  ALL OTHER USE, COPYING, OR
DISTRIBUTION IS STRICTLY PROHIBITED.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Wednesday, May 22, 2013 5:47 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Survival of Material Lease Terms

Members:  My understanding is that once a written lease expires and the
tenant remains in possession with the landlord's consent on a month-to-
month basis, the material terms of the original lease agreement survive.
Question:  If the lease required the tenant to provide 60-days' notice of
his/her intent to vacate, does that provision survive or may the tenant
provide the 15-days' notice prior to the end of the month-to-month lease
term?

Any thoughts or case law is appreciated.  Thank you.

Regards,

AJH Logo mark

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

2255 Glades Road, Suite 324A

Boca Raton, Florida 33431

T: 561.989.3206

F. 561.989.3204

www.horkylaw.com

This message and the documents attached to it, if any, are intended only for
the use of the addressee and may contain information that is attorney-client
privileged or confidential, and/or may contain attorney work product.  If
you are not the intended recipient, you are hereby notified that any
dissemination of this communication is strictly prohibited. If you have
received this communication in error, please delete all electronic copies of
this message and its attachments, if any, destroy any hard copies you may
have created and notify me immediately at:  mailto:ahorky@horkylaw.com
ahorky@horkylaw.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by the
IRS under Circular 230, we inform you that any U.S. federal tax advice
contained in this communication (including any attachments), unless
otherwise specifically stated, was not intended or written to be used, and
cannot be used, for the purpose of (1) avoiding penalties under the Internal
Revenue Code or (2) promoting, marketing or recommending to another party
any matters addressed herein.

I would tend to agree but in the land of commercial leasing, where contractual provisions and intentions almost always prevail, I would want to look at the applicable holdover provision (which can vary wildly) very closely to determine whether we do indeed have a pure holdover situation in violation of the lease (thus removing contractual provisions from the analysis) or some variant where the lease still applies but with increased rent, etc.  Sometimes holdover provisions really do read like a month-to-month extension of the lease, and sometimes they even explicitly keep the lease in play so that the landlord continues to be protected by insurance provisions, indemnity obligations, and the like.

I tend to try to do something like this (when representing the landlord) to get them the best of both worlds for what it’s worth:

If Tenant fails to fully and timely surrender the Premises as required, tenant's continuing occupancy of the Premises shall constitute a tenancy at
sufferance pursuant to § 83.04, Florida Statutes, terminable at any time by Landlord.  Landlord will also be entitled to recover 200% of the rent in effect immediately prior to expiration or earlier termination of the Lease, prorated for each day of said holdover period. Acceptance of such amounts shall not be deemed a renewal of this Lease.  The provisions of Article 15 of the Lease (Insurance and Indemnity) and this Section 5 shall survive the expiration or earlier termination of the Lease Term.

Gregory

Gregory R. Haney
Attorney at Law
Shumaker, Loop & Kendrick LLP
Bank of America Plaza
101 East Kennedy Boulevard
Suite 2800
Tampa, FL 33602
813.229.7600
813.227.2277 direct
813.229.1660 fax
ghaney@slk-law.com
www.slk-law.comhttp://www.slk-law.com/

IRS Circular 230 Notice: We are required to advise you no person or entity may use any tax advice in this communication or any attachment to (i) avoid any penalty under federal tax law or (ii) promote, market or recommend any purchase, investment or other action.

Confidentiality Statement: This electronic message contains information from the law firm of Shumaker, Loop & Kendrick, LLP, and may be confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this message is prohibited. If you have received this electronic message in error, please notify the sender immediately by reply e-mail or telephone 800.444.6659.
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of lesstevens
Sent: Thursday, May 23, 2013 10:56 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I would argue that the “extended notice” was a negotiated item as consideration of the Lease, but since they Tenant has now breached by holding over, that is not what was “bargained for” by the Landlord and that the provision for “extended notice” would no longer apply and the Statute for month-to-month tenancies would control…I do not believe the Tenant can “hide behind” the provision.

Any thoughts?

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

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Heist, Weisse & Wolk
Sent: Thursday, May 23, 2013 10:30 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I feel that a "month to month" tenancy only requires at least 15 days prior to the beginning of the next monthly rental period regardless of what the prior written lease says although if the lease requires the LANDLORD to give more than 15 days, it would be hard to get the LANDLORD out of it.

I have no cases BUT, years ago when we were getting the liquidated damages into the law, and the penalty  for no notice prior to lease end, the Governor at the time was real clear on the fact that we could not require more than 15 days notice on month to month and the feeling was that the whole essence of month to month is the 15 day deal.

As far as the survival of other lease terms/clauses, rent, late fees, etc I feel they do survive.

Harry

LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  www.evict.comhttp://www.evict.com/
Email: harry@evict.commailto:harry@evict.com
THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY.  ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Wednesday, May 22, 2013 5:47 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Survival of Material Lease Terms

Members:  My understanding is that once a written lease expires and the tenant remains in possession with the landlord’s consent on a month-to- month basis, the material terms of the original lease agreement survive.  Question:  If the lease required the tenant to provide 60-days’ notice of his/her intent to vacate, does that provision survive or may the tenant provide the 15-days’ notice prior to the end of the month-to-month lease term?

Any thoughts or case law is appreciated.  Thank you.

Regards,

[AJH Logo mark]

Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
2255 Glades Road, Suite 324A
Boca Raton, Florida 33431
T: 561.989.3206
F. 561.989.3204
www.horkylaw.comhttp://www.horkylaw.com

This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product.  If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky@horkylaw.commailto:ahorky@horkylaw.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein.

I now see that this is a residential lease, so you can probably disregard the comments I just posted to a large extent.

Gregory

Gregory R. Haney
Attorney at Law
Shumaker, Loop & Kendrick LLP
Bank of America Plaza
101 East Kennedy Boulevard
Suite 2800
Tampa, FL 33602
813.229.7600
813.227.2277 direct
813.229.1660 fax
ghaney@slk-law.com
www.slk-law.comhttp://www.slk-law.com/

IRS Circular 230 Notice: We are required to advise you no person or entity may use any tax advice in this communication or any attachment to (i) avoid any penalty under federal tax law or (ii) promote, market or recommend any purchase, investment or other action.

Confidentiality Statement: This electronic message contains information from the law firm of Shumaker, Loop & Kendrick, LLP, and may be confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this message is prohibited. If you have received this electronic message in error, please notify the sender immediately by reply e-mail or telephone 800.444.6659.
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Thursday, May 23, 2013 11:13 AM
To: lesstevens@earthlink.net; 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

Thanks Les and Harry.  In my case, the landlord has made a claim on the tenant’s security deposit after the tenant gave 30 days’ notice that it was terminating the month to month tenancy.  Landlord claims that tenant needed to provide 60-days’ notice per the lease although the lease expired and the tenant has been living there, with landlord’s consent, on a month to month basis.

Regards,

[AJH Logo mark]

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

2255 Glades Road, Suite 324A

Boca Raton, Florida 33431

T: 561.989.3206

F. 561.989.3204

www.horkylaw.comhttp://www.horkylaw.com

This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product.  If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky@horkylaw.commailto:ahorky@horkylaw.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein.

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of lesstevens
Sent: Thursday, May 23, 2013 10:56 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I would argue that the “extended notice” was a negotiated item as consideration of the Lease, but since they Tenant has now breached by holding over, that is not what was “bargained for” by the Landlord and that the provision for “extended notice” would no longer apply and the Statute for month-to-month tenancies would control…I do not believe the Tenant can “hide behind” the provision.

Any thoughts?

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

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Heist, Weisse & Wolk
Sent: Thursday, May 23, 2013 10:30 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I feel that a "month to month" tenancy only requires at least 15 days prior to the beginning of the next monthly rental period regardless of what the prior written lease says although if the lease requires the LANDLORD to give more than 15 days, it would be hard to get the LANDLORD out of it.

I have no cases BUT, years ago when we were getting the liquidated damages into the law, and the penalty  for no notice prior to lease end, the Governor at the time was real clear on the fact that we could not require more than 15 days notice on month to month and the feeling was that the whole essence of month to month is the 15 day deal.

As far as the survival of other lease terms/clauses, rent, late fees, etc I feel they do survive.

Harry

LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  www.evict.comhttp://www.evict.com/
Email: harry@evict.commailto:harry@evict.com
THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY.  ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Wednesday, May 22, 2013 5:47 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Survival of Material Lease Terms

Members:  My understanding is that once a written lease expires and the tenant remains in possession with the landlord’s consent on a month-to- month basis, the material terms of the original lease agreement survive.  Question:  If the lease required the tenant to provide 60-days’ notice of his/her intent to vacate, does that provision survive or may the tenant provide the 15-days’ notice prior to the end of the month-to-month lease term?

Any thoughts or case law is appreciated.  Thank you.

Regards,

[AJH Logo mark]

Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
2255 Glades Road, Suite 324A
Boca Raton, Florida 33431
T: 561.989.3206
F. 561.989.3204
www.horkylaw.comhttp://www.horkylaw.com

This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product.  If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky@horkylaw.commailto:ahorky@horkylaw.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein.

Gregory,

In the commercial context, what about the attorneys' fees?  If tenancy at sufferance, and lease is the only way to get fees, should you have a provision that they also continue (and is that even enforceable)?

PLEASE MAKE NOTE OF OUR NEW FIRM NAME AND MY NEW EMAIL ADDRESS.

Thank you,                          P Think before you print.

Joseph N. Alexander | Partner

POTTER CLEMENT BERGHOLTZ ALEXANDER

308 East Fifth Avenue

Mount Dora, Florida 32757

Phone:  352.383.4186

Fax:      352.383.0087

jalexander@pcba-law.com mailto:jalexander@pcba-law.com

This message and any attachments are intended only for the use of the addressee and may contain information that is privileged and confidential.  If the reader of the message is not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited.  If you have received this e-mail in error, please notify us immediately by replying to this e-mail message or by telephone and delete this message and any attachments from your system.  Thank you.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Haney, Gregory
Sent: Thursday, May 23, 2013 11:18 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I would tend to agree but in the land of commercial leasing, where contractual provisions and intentions almost always prevail, I would want to look at the applicable holdover provision (which can vary wildly) very closely to determine whether we do indeed have a pure holdover situation in violation of the lease (thus removing contractual provisions from the analysis) or some variant where the lease still applies but with increased rent, etc.  Sometimes holdover provisions really do read like a month-to-month extension of the lease, and sometimes they even explicitly keep the lease in play so that the landlord continues to be protected by insurance provisions, indemnity obligations, and the like.

I tend to try to do something like this (when representing the landlord) to get them the best of both worlds for what it's worth:

If Tenant fails to fully and timely surrender the Premises as required, tenant's continuing occupancy of the Premises shall constitute a tenancy at

sufferance pursuant to § 83.04, Florida Statutes, terminable at any time by Landlord.  Landlord will also be entitled to recover 200% of the rent in effect immediately prior to expiration or earlier termination of the Lease, prorated for each day of said holdover period. Acceptance of such amounts shall not be deemed a renewal of this Lease.  The provisions of Article 15 of the Lease (Insurance and Indemnity) and this Section 5 shall survive the expiration or earlier termination of the Lease Term.

Gregory

Gregory R. Haney
Attorney at Law
Shumaker, Loop & Kendrick LLP
Bank of America Plaza
101 East Kennedy Boulevard
Suite 2800
Tampa, FL 33602
813.229.7600
813.227.2277 direct
813.229.1660 fax
ghaney@slk-law.com
www.slk-law.com http://www.slk-law.com/

IRS Circular 230 Notice: We are required to advise you no person or entity may use any tax advice in this communication or any attachment to (i) avoid any penalty under federal tax law or (ii) promote, market or recommend any purchase, investment or other action.

Confidentiality Statement: This electronic message contains information from the law firm of Shumaker, Loop & Kendrick, LLP, and may be confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this message is prohibited. If you have received this electronic message in error, please notify the sender immediately by reply e-mail or telephone 800.444.6659.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of lesstevens
Sent: Thursday, May 23, 2013 10:56 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I would argue that the "extended notice" was a negotiated item as consideration of the Lease, but since they Tenant has now breached by holding over, that is not what was "bargained for" by the Landlord and that the provision for "extended notice" would no longer apply and the Statute for month-to-month tenancies would control...I do not believe the Tenant can "hide behind" the provision.

Any thoughts?

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

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Heist, Weisse & Wolk
Sent: Thursday, May 23, 2013 10:30 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I feel that a "month to month" tenancy only requires at least 15 days prior to the beginning of the next monthly rental period regardless of what the prior written lease says although if the lease requires the LANDLORD to give more than 15 days, it would be hard to get the LANDLORD out of it.

I have no cases BUT, years ago when we were getting the liquidated damages into the law, and the penalty  for no notice prior to lease end, the Governor at the time was real clear on the fact that we could not require more than 15 days notice on month to month and the feeling was that the whole essence of month to month is the 15 day deal.

As far as the survival of other lease terms/clauses, rent, late fees, etc I feel they do survive.

Harry

LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  www.evict.com http://www.evict.com/
Email: harry@evict.com

THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY.  ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Wednesday, May 22, 2013 5:47 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Survival of Material Lease Terms

Members:  My understanding is that once a written lease expires and the tenant remains in possession with the landlord's consent on a month-to- month basis, the material terms of the original lease agreement survive.  Question:  If the lease required the tenant to provide 60-days' notice of his/her intent to vacate, does that provision survive or may the tenant provide the 15-days' notice prior to the end of the month-to-month lease term?

Any thoughts or case law is appreciated.  Thank you.

Regards,

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

2255 Glades Road, Suite 324A

Boca Raton, Florida 33431

T: 561.989.3206

F. 561.989.3204

www.horkylaw.com

This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product.  If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky@horkylaw.com mailto:ahorky@horkylaw.com .

Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein.

Hi Joseph.  Yes, good point.  I do likewise always insert a survivability clause in my attorney fee provisions, but admittedly haven’t had to test it in this context yet.

That said, I think you’re right, that it would be a tough row to hoe (even with such a clause) if you, as landlord, are claiming that the lease terminated and the tenant was purely at sufferance.  In that instance, the basis for your eviction suit necessarily has no basis whatsoever in the lease, surviving clause or not.

Something to think about with the language I pasted below of course.  If fee recovery is a priority, it seems like it would be key (again, as landlord) to have the lease survive a holdover but with at least the same termination rights as an at-sufferance situation.

I do commercial tenant rep more often, so it is an interesting and useful exercise to analyze from this side.

Gregory

Gregory R. Haney
Attorney at Law
Shumaker, Loop & Kendrick LLP
Bank of America Plaza
101 East Kennedy Boulevard
Suite 2800
Tampa, FL 33602
813.229.7600
813.227.2277 direct
813.229.1660 fax
ghaney@slk-law.com
www.slk-law.comhttp://www.slk-law.com/

IRS Circular 230 Notice: We are required to advise you no person or entity may use any tax advice in this communication or any attachment to (i) avoid any penalty under federal tax law or (ii) promote, market or recommend any purchase, investment or other action.

Confidentiality Statement: This electronic message contains information from the law firm of Shumaker, Loop & Kendrick, LLP, and may be confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this message is prohibited. If you have received this electronic message in error, please notify the sender immediately by reply e-mail or telephone 800.444.6659.
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Joseph Alexander
Sent: Thursday, May 23, 2013 11:42 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

Gregory,

In the commercial context, what about the attorneys’ fees?  If tenancy at sufferance, and lease is the only way to get fees, should you have a provision that they also continue (and is that even enforceable)?

PLEASE MAKE NOTE OF OUR NEW FIRM NAME AND MY NEW EMAIL ADDRESS.

Thank you,                          P Think before you print.

Joseph N. Alexander | Partner
POTTER CLEMENT BERGHOLTZ ALEXANDER
308 East Fifth Avenue
Mount Dora, Florida 32757
Phone:  352.383.4186
Fax:      352.383.0087
jalexander@pcba-law.commailto:jalexander@pcba-law.com

This message and any attachments are intended only for the use of the addressee and may contain information that is privileged and confidential.  If the reader of the message is not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited.  If you have received this e-mail in error, please notify us immediately by replying to this e-mail message or by telephone and delete this message and any attachments from your system.  Thank you.

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Haney, Gregory
Sent: Thursday, May 23, 2013 11:18 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I would tend to agree but in the land of commercial leasing, where contractual provisions and intentions almost always prevail, I would want to look at the applicable holdover provision (which can vary wildly) very closely to determine whether we do indeed have a pure holdover situation in violation of the lease (thus removing contractual provisions from the analysis) or some variant where the lease still applies but with increased rent, etc.  Sometimes holdover provisions really do read like a month-to-month extension of the lease, and sometimes they even explicitly keep the lease in play so that the landlord continues to be protected by insurance provisions, indemnity obligations, and the like.

I tend to try to do something like this (when representing the landlord) to get them the best of both worlds for what it’s worth:

If Tenant fails to fully and timely surrender the Premises as required, tenant's continuing occupancy of the Premises shall constitute a tenancy at
sufferance pursuant to § 83.04, Florida Statutes, terminable at any time by Landlord.  Landlord will also be entitled to recover 200% of the rent in effect immediately prior to expiration or earlier termination of the Lease, prorated for each day of said holdover period. Acceptance of such amounts shall not be deemed a renewal of this Lease.  The provisions of Article 15 of the Lease (Insurance and Indemnity) and this Section 5 shall survive the expiration or earlier termination of the Lease Term.

Gregory

Gregory R. Haney
Attorney at Law
Shumaker, Loop & Kendrick LLP
Bank of America Plaza
101 East Kennedy Boulevard
Suite 2800
Tampa, FL 33602
813.229.7600
813.227.2277 direct
813.229.1660 fax
ghaney@slk-law.commailto:ghaney@slk-law.com
www.slk-law.comhttp://www.slk-law.com/

IRS Circular 230 Notice: We are required to advise you no person or entity may use any tax advice in this communication or any attachment to (i) avoid any penalty under federal tax law or (ii) promote, market or recommend any purchase, investment or other action.

Confidentiality Statement: This electronic message contains information from the law firm of Shumaker, Loop & Kendrick, LLP, and may be confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this message is prohibited. If you have received this electronic message in error, please notify the sender immediately by reply e-mail or telephone 800.444.6659.
From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of lesstevens
Sent: Thursday, May 23, 2013 10:56 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I would argue that the “extended notice” was a negotiated item as consideration of the Lease, but since they Tenant has now breached by holding over, that is not what was “bargained for” by the Landlord and that the provision for “extended notice” would no longer apply and the Statute for month-to-month tenancies would control…I do not believe the Tenant can “hide behind” the provision.

Any thoughts?

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

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Heist, Weisse & Wolk
Sent: Thursday, May 23, 2013 10:30 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I feel that a "month to month" tenancy only requires at least 15 days prior to the beginning of the next monthly rental period regardless of what the prior written lease says although if the lease requires the LANDLORD to give more than 15 days, it would be hard to get the LANDLORD out of it.

I have no cases BUT, years ago when we were getting the liquidated damages into the law, and the penalty  for no notice prior to lease end, the Governor at the time was real clear on the fact that we could not require more than 15 days notice on month to month and the feeling was that the whole essence of month to month is the 15 day deal.

As far as the survival of other lease terms/clauses, rent, late fees, etc I feel they do survive.

Harry

LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  www.evict.comhttp://www.evict.com/
Email: harry@evict.commailto:harry@evict.com
THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY.  ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Wednesday, May 22, 2013 5:47 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Survival of Material Lease Terms

Members:  My understanding is that once a written lease expires and the tenant remains in possession with the landlord’s consent on a month-to- month basis, the material terms of the original lease agreement survive.  Question:  If the lease required the tenant to provide 60-days’ notice of his/her intent to vacate, does that provision survive or may the tenant provide the 15-days’ notice prior to the end of the month-to-month lease term?

Any thoughts or case law is appreciated.  Thank you.

Regards,

[AJH Logo mark]

Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
2255 Glades Road, Suite 324A
Boca Raton, Florida 33431
T: 561.989.3206
F. 561.989.3204
www.horkylaw.comhttp://www.horkylaw.com

This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product.  If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky@horkylaw.commailto:ahorky@horkylaw.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein.

To my complete terror, I once filed alleging attorneys' fees did survive in a commercial context.  To my great relief, we settled without having to test my argument.  Of course, the tenant's attorney argued that attorneys' fees were not available...and, if I were the Judge, I would have found his argument persuasive.

PLEASE MAKE NOTE OF OUR NEW FIRM NAME AND MY NEW EMAIL ADDRESS.

Thank you,                          P Think before you print.

Joseph N. Alexander | Partner

POTTER CLEMENT BERGHOLTZ ALEXANDER

308 East Fifth Avenue

Mount Dora, Florida 32757

Phone:  352.383.4186

Fax:      352.383.0087

jalexander@pcba-law.com mailto:jalexander@pcba-law.com

This message and any attachments are intended only for the use of the addressee and may contain information that is privileged and confidential.  If the reader of the message is not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited.  If you have received this e-mail in error, please notify us immediately by replying to this e-mail message or by telephone and delete this message and any attachments from your system.  Thank you.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Haney, Gregory
Sent: Thursday, May 23, 2013 2:37 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

Hi Joseph.  Yes, good point.  I do likewise always insert a survivability clause in my attorney fee provisions, but admittedly haven't had to test it in this context yet.

That said, I think you're right, that it would be a tough row to hoe (even with such a clause) if you, as landlord, are claiming that the lease terminated and the tenant was purely at sufferance.  In that instance, the basis for your eviction suit necessarily has no basis whatsoever in the lease, surviving clause or not.

Something to think about with the language I pasted below of course.  If fee recovery is a priority, it seems like it would be key (again, as landlord) to have the lease survive a holdover but with at least the same termination rights as an at-sufferance situation.

I do commercial tenant rep more often, so it is an interesting and useful exercise to analyze from this side.

Gregory

Gregory R. Haney
Attorney at Law
Shumaker, Loop & Kendrick LLP
Bank of America Plaza
101 East Kennedy Boulevard
Suite 2800
Tampa, FL 33602
813.229.7600
813.227.2277 direct
813.229.1660 fax
ghaney@slk-law.com
www.slk-law.com http://www.slk-law.com/

IRS Circular 230 Notice: We are required to advise you no person or entity may use any tax advice in this communication or any attachment to (i) avoid any penalty under federal tax law or (ii) promote, market or recommend any purchase, investment or other action.

Confidentiality Statement: This electronic message contains information from the law firm of Shumaker, Loop & Kendrick, LLP, and may be confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this message is prohibited. If you have received this electronic message in error, please notify the sender immediately by reply e-mail or telephone 800.444.6659.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Joseph Alexander
Sent: Thursday, May 23, 2013 11:42 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

Gregory,

In the commercial context, what about the attorneys' fees?  If tenancy at sufferance, and lease is the only way to get fees, should you have a provision that they also continue (and is that even enforceable)?

PLEASE MAKE NOTE OF OUR NEW FIRM NAME AND MY NEW EMAIL ADDRESS.

Thank you,                          P Think before you print.

Joseph N. Alexander | Partner

POTTER CLEMENT BERGHOLTZ ALEXANDER

308 East Fifth Avenue

Mount Dora, Florida 32757

Phone:  352.383.4186

Fax:      352.383.0087

jalexander@pcba-law.com mailto:jalexander@pcba-law.com

This message and any attachments are intended only for the use of the addressee and may contain information that is privileged and confidential.  If the reader of the message is not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited.  If you have received this e-mail in error, please notify us immediately by replying to this e-mail message or by telephone and delete this message and any attachments from your system.  Thank you.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Haney, Gregory
Sent: Thursday, May 23, 2013 11:18 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I would tend to agree but in the land of commercial leasing, where contractual provisions and intentions almost always prevail, I would want to look at the applicable holdover provision (which can vary wildly) very closely to determine whether we do indeed have a pure holdover situation in violation of the lease (thus removing contractual provisions from the analysis) or some variant where the lease still applies but with increased rent, etc.  Sometimes holdover provisions really do read like a month-to-month extension of the lease, and sometimes they even explicitly keep the lease in play so that the landlord continues to be protected by insurance provisions, indemnity obligations, and the like.

I tend to try to do something like this (when representing the landlord) to get them the best of both worlds for what it's worth:

If Tenant fails to fully and timely surrender the Premises as required, tenant's continuing occupancy of the Premises shall constitute a tenancy at

sufferance pursuant to § 83.04, Florida Statutes, terminable at any time by Landlord.  Landlord will also be entitled to recover 200% of the rent in effect immediately prior to expiration or earlier termination of the Lease, prorated for each day of said holdover period. Acceptance of such amounts shall not be deemed a renewal of this Lease.  The provisions of Article 15 of the Lease (Insurance and Indemnity) and this Section 5 shall survive the expiration or earlier termination of the Lease Term.

Gregory

Gregory R. Haney
Attorney at Law
Shumaker, Loop & Kendrick LLP
Bank of America Plaza
101 East Kennedy Boulevard
Suite 2800
Tampa, FL 33602
813.229.7600
813.227.2277 direct
813.229.1660 fax
ghaney@slk-law.com
www.slk-law.com http://www.slk-law.com/

IRS Circular 230 Notice: We are required to advise you no person or entity may use any tax advice in this communication or any attachment to (i) avoid any penalty under federal tax law or (ii) promote, market or recommend any purchase, investment or other action.

Confidentiality Statement: This electronic message contains information from the law firm of Shumaker, Loop & Kendrick, LLP, and may be confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this message is prohibited. If you have received this electronic message in error, please notify the sender immediately by reply e-mail or telephone 800.444.6659.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of lesstevens
Sent: Thursday, May 23, 2013 10:56 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I would argue that the "extended notice" was a negotiated item as consideration of the Lease, but since they Tenant has now breached by holding over, that is not what was "bargained for" by the Landlord and that the provision for "extended notice" would no longer apply and the Statute for month-to-month tenancies would control...I do not believe the Tenant can "hide behind" the provision.

Any thoughts?

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

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Heist, Weisse & Wolk
Sent: Thursday, May 23, 2013 10:30 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I feel that a "month to month" tenancy only requires at least 15 days prior to the beginning of the next monthly rental period regardless of what the prior written lease says although if the lease requires the LANDLORD to give more than 15 days, it would be hard to get the LANDLORD out of it.

I have no cases BUT, years ago when we were getting the liquidated damages into the law, and the penalty  for no notice prior to lease end, the Governor at the time was real clear on the fact that we could not require more than 15 days notice on month to month and the feeling was that the whole essence of month to month is the 15 day deal.

As far as the survival of other lease terms/clauses, rent, late fees, etc I feel they do survive.

Harry

LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  www.evict.com http://www.evict.com/
Email: harry@evict.com

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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Wednesday, May 22, 2013 5:47 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Survival of Material Lease Terms

Members:  My understanding is that once a written lease expires and the tenant remains in possession with the landlord's consent on a month-to- month basis, the material terms of the original lease agreement survive.  Question:  If the lease required the tenant to provide 60-days' notice of his/her intent to vacate, does that provision survive or may the tenant provide the 15-days' notice prior to the end of the month-to-month lease term?

Any thoughts or case law is appreciated.  Thank you.

Regards,

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

2255 Glades Road, Suite 324A

Boca Raton, Florida 33431

T: 561.989.3206

F. 561.989.3204

www.horkylaw.com

This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product.  If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky@horkylaw.com mailto:ahorky@horkylaw.com .

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I agree in the commercial setting. I am usually on the landlord's side and there is case law that says attorneys' fees provisions do not survive after expiration of a written lease.  See Douglass v. Jones, 422 So.2d 352 (Fla. 5th DCA 1982).  Copy attached.

[cid:image001.jpg@01CCE29A.39B6E430]
Dariel J. Abrahamy, Esq.
Greenspoon Marder, P.A.
100 W. Cypress Creek Road, Suite 700
Fort Lauderdale, FL 33309
P: 954-491-1120; F: 954-343-6972
Dariel.Abrahamy@gmlaw.com

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Joseph Alexander
Sent: Thursday, May 23, 2013 2:57 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

To my complete terror, I once filed alleging attorneys' fees did survive in a commercial context.  To my great relief, we settled without having to test my argument.  Of course, the tenant's attorney argued that attorneys' fees were not available...and, if I were the Judge, I would have found his argument persuasive.

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Joseph N. Alexander | Partner
POTTER CLEMENT BERGHOLTZ ALEXANDER
308 East Fifth Avenue
Mount Dora, Florida 32757
Phone:  352.383.4186
Fax:      352.383.0087
jalexander@pcba-law.commailto:jalexander@pcba-law.com

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From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Haney, Gregory
Sent: Thursday, May 23, 2013 2:37 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

Hi Joseph.  Yes, good point.  I do likewise always insert a survivability clause in my attorney fee provisions, but admittedly haven't had to test it in this context yet.

That said, I think you're right, that it would be a tough row to hoe (even with such a clause) if you, as landlord, are claiming that the lease terminated and the tenant was purely at sufferance.  In that instance, the basis for your eviction suit necessarily has no basis whatsoever in the lease, surviving clause or not.

Something to think about with the language I pasted below of course.  If fee recovery is a priority, it seems like it would be key (again, as landlord) to have the lease survive a holdover but with at least the same termination rights as an at-sufferance situation.

I do commercial tenant rep more often, so it is an interesting and useful exercise to analyze from this side.

Gregory

Gregory R. Haney
Attorney at Law
Shumaker, Loop & Kendrick LLP
Bank of America Plaza
101 East Kennedy Boulevard
Suite 2800
Tampa, FL 33602
813.229.7600
813.227.2277 direct
813.229.1660 fax
ghaney@slk-law.commailto:ghaney@slk-law.com
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From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Joseph Alexander
Sent: Thursday, May 23, 2013 11:42 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

Gregory,

In the commercial context, what about the attorneys' fees?  If tenancy at sufferance, and lease is the only way to get fees, should you have a provision that they also continue (and is that even enforceable)?

PLEASE MAKE NOTE OF OUR NEW FIRM NAME AND MY NEW EMAIL ADDRESS.

Thank you,                          P Think before you print.

Joseph N. Alexander | Partner
POTTER CLEMENT BERGHOLTZ ALEXANDER
308 East Fifth Avenue
Mount Dora, Florida 32757
Phone:  352.383.4186
Fax:      352.383.0087
jalexander@pcba-law.commailto:jalexander@pcba-law.com

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From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Haney, Gregory
Sent: Thursday, May 23, 2013 11:18 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I would tend to agree but in the land of commercial leasing, where contractual provisions and intentions almost always prevail, I would want to look at the applicable holdover provision (which can vary wildly) very closely to determine whether we do indeed have a pure holdover situation in violation of the lease (thus removing contractual provisions from the analysis) or some variant where the lease still applies but with increased rent, etc.  Sometimes holdover provisions really do read like a month-to-month extension of the lease, and sometimes they even explicitly keep the lease in play so that the landlord continues to be protected by insurance provisions, indemnity obligations, and the like.

I tend to try to do something like this (when representing the landlord) to get them the best of both worlds for what it's worth:

If Tenant fails to fully and timely surrender the Premises as required, tenant's continuing occupancy of the Premises shall constitute a tenancy at
sufferance pursuant to § 83.04, Florida Statutes, terminable at any time by Landlord.  Landlord will also be entitled to recover 200% of the rent in effect immediately prior to expiration or earlier termination of the Lease, prorated for each day of said holdover period. Acceptance of such amounts shall not be deemed a renewal of this Lease.  The provisions of Article 15 of the Lease (Insurance and Indemnity) and this Section 5 shall survive the expiration or earlier termination of the Lease Term.

Gregory

Gregory R. Haney
Attorney at Law
Shumaker, Loop & Kendrick LLP
Bank of America Plaza
101 East Kennedy Boulevard
Suite 2800
Tampa, FL 33602
813.229.7600
813.227.2277 direct
813.229.1660 fax
ghaney@slk-law.commailto:ghaney@slk-law.com
www.slk-law.comhttp://www.slk-law.com/

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From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of lesstevens
Sent: Thursday, May 23, 2013 10:56 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I would argue that the "extended notice" was a negotiated item as consideration of the Lease, but since they Tenant has now breached by holding over, that is not what was "bargained for" by the Landlord and that the provision for "extended notice" would no longer apply and the Statute for month-to-month tenancies would control...I do not believe the Tenant can "hide behind" the provision.

Any thoughts?

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

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Heist, Weisse & Wolk
Sent: Thursday, May 23, 2013 10:30 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms

I feel that a "month to month" tenancy only requires at least 15 days prior to the beginning of the next monthly rental period regardless of what the prior written lease says although if the lease requires the LANDLORD to give more than 15 days, it would be hard to get the LANDLORD out of it.

I have no cases BUT, years ago when we were getting the liquidated damages into the law, and the penalty  for no notice prior to lease end, the Governor at the time was real clear on the fact that we could not require more than 15 days notice on month to month and the feeling was that the whole essence of month to month is the 15 day deal.

As far as the survival of other lease terms/clauses, rent, late fees, etc I feel they do survive.

Harry

LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  www.evict.comhttp://www.evict.com/
Email: harry@evict.commailto:harry@evict.com
THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY.  ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Wednesday, May 22, 2013 5:47 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Survival of Material Lease Terms

Members:  My understanding is that once a written lease expires and the tenant remains in possession with the landlord's consent on a month-to- month basis, the material terms of the original lease agreement survive.  Question:  If the lease required the tenant to provide 60-days' notice of his/her intent to vacate, does that provision survive or may the tenant provide the 15-days' notice prior to the end of the month-to-month lease term?

Any thoughts or case law is appreciated.  Thank you.

Regards,

[AJH Logo mark]

Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
2255 Glades Road, Suite 324A
Boca Raton, Florida 33431
T: 561.989.3206
F. 561.989.3204
www.horkylaw.comhttp://www.horkylaw.com

This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product.  If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky@horkylaw.commailto:ahorky@horkylaw.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein.

The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have
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