Even without a lease provision, a commercial landlord will recover his attorney’s fees in an action for possession pursuant to Section 83.231: “. . . . Where otherwise authorized by law, the plaintiff in the judgment for possession may also be awarded attorney’s fees and costs. . . .” See, <http://web2.westlaw.com/find/default.wl?mt=Florida&db=735&rs=WLW13.04&tc=-1 &rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=1998080653&serialnum=1993213836&vr =2.0&fn=_top&sv=Split&tf=-1&pbc=2F6C2E64&utid=1> Byte Int'l Corp. v. Maurice Gusman Residuary Trust No. 1, 629 So.2d 191 (Fla. 3d DCA 1993); Florida Dept. of Health and Rehabilitative Services v. Morse, 708 So.2d 640 (Fla. 3d DCA 1998). The “where otherwise authorized by law” clause does not seem to have any import. Warren P. Gammill, Esq. Warren Gammill & Associates Suite 1050, Courthouse Tower 44 West Flagler Street Miami, Florida 33130 Telephone: 305-579-0000 Telecopier: 305-371-6927 <mailto:Gammill@MiamiLawOffice.com> Gammill@MiamiLawOffice.com Website: <http://www.gammilllaw.com/> www.gammilllaw.com From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Dariel Abrahamy Sent: Wednesday, May 29, 2013 3:30 PM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Survival of Material Lease Terms 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. 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 <mailto:jalexander@pcba-law.com> 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 <http://www.slk-law.com/> 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 <mailto:jalexander@pcba-law.com> 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 <http://www.slk-law.com/> 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, 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. 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. 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