I would appreciate if anyone can comment on the following:

Tenant enters into commercial lease for space from landlord as individual
doing business as fictitious name. The lease is silent with respect to
subleasing.

Thereafter, tenant subleases same space in her fictitious name but signs
sublease in her individual capacity. Then, the subtenant defaults in the
payment of rent, is not paying and will not vacate.  Tenant and subtenant
sharing same premises comprised of two offices.

Client wants to sue subtenant.  The problem I see is that tenant is not the
one that entered into the sublease, so how can tenant be the proper party to
seek an eviction?

Other than breach of sublease agreement, who is the proper party to bring an
action and would it be an eviction, unlawful detainer, or  ejectment?

Any input would be greatly appreciated. Thank you.

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 think you have to sue the original/master Tenant for eviction since that is the party with whom the landlord has contractual privity.  You could also name the sub-tenant as an additional defendant so the subtenant cannot claim you failed to join an indispensible party, but ultimately the original tenant is the party liable to landlord.   I don't know the exact cite, but there's a case that addresses this issue:  Bradford Underhill vs. Corporate Rental Solutions, Inc., 17 Fla. L. Weekly Supp. 1119a.  The case basically says that if the master tenant's lease is terminated, the sublease is also automatically terminated.  Hope this 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: Anthony J. Horky ahorky@horkylaw.com
To: 'RPPTL Landlord Tenant Committee' landten@lists.flabarrpptl.org
Sent: Tuesday, February 12, 2013 4:16 PM
Subject: [RPPTL LandTen] New problem

I would appreciate if anyone can comment on the following:
 
Tenant enters into commercial lease for space from landlord as individual doing business as fictitious name. The lease is silent with respect to subleasing.
 
Thereafter, tenant subleases same space in her fictitious name but signs sublease in her individual capacity. Then, the subtenant defaults in the payment of rent, is not paying and will not vacate.  Tenant and subtenant sharing same premises comprised of two offices. 
 
Client wants to sue subtenant.  The problem I see is that tenant is not the one that entered into the sublease, so how can tenant be the proper party to seek an eviction? 
 
Other than breach of sublease agreement, who is the proper party to bring an action and would it be an eviction, unlawful detainer, or  ejectment?
  
Any input would be greatly appreciated. Thank you.
 
 
 
 
  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.

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.
 
 
 _______________________________________________landten mailing listlandten@lists.flabarrpptl.orghttp://mailman.fsr.com/mailman/listinfo/landten

I am assuming that you represent the tenant (sublessor), but I believe that because there was performance under the sublease, the subtenant would likely lose any defense that the tenant (sublessor) is not the proper party to bring an eviction action.  The tenant should be able to bring the action to evict in her individual capacity since the primary lease was executed in that capacity and further because the sublease was executed in that capacity.

Did I miss something in your fact pattern?

Best regards,

Brenda B. Ezell
[Description: Description: Ezell_lawfirm_fin]
3560 Cardinal Point Drive, Suite 202
Jacksonville, FL 32257
904.240.4560 Tel
904.240.4561 Fax
www.ezellfirmpa.comhttp://www.ezellfirmpa.com/

CONFIDENTIALITY NOTICE:This e-mail and any files transmitted with it are confidential and may contain information which is legally privileged or otherwise exempt from disclosure. They are intended solely for the use of the individual or entity to whom this e-mail is addressed. If you are not one of the named recipients or otherwise have reason to believe that you have received this message in error, please immediately notify the sender and delete this message immediately from your computer. Any other use, retention, dissemination, forwarding, printing, or copying of this e-mail is strictly prohibited.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Tuesday, February 12, 2013 4:16 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] New problem

I would appreciate if anyone can comment on the following:

Tenant enters into commercial lease for space from landlord as individual doing business as fictitious name. The lease is silent with respect to subleasing.

Thereafter, tenant subleases same space in her fictitious name but signs sublease in her individual capacity. Then, the subtenant defaults in the payment of rent, is not paying and will not vacate.  Tenant and subtenant sharing same premises comprised of two offices.

Client wants to sue subtenant.  The problem I see is that tenant is not the one that entered into the sublease, so how can tenant be the proper party to seek an eviction?

Other than breach of sublease agreement, who is the proper party to bring an action and would it be an eviction, unlawful detainer, or  ejectment?

Any input would be greatly appreciated. Thank you.

[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’m reading this a little differently because I assume the tenant is Anthony’s client.  So my response would be:

Since a d/b/a is not a separate entity, your client is individually the tenant under the lease and is individually the sublandlord, regardless of any fictitious name being used.  So your client would likewise individually be the plaintiff.

If your client is the landlord, never mind my response!

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 Cary Sabol
Sent: Tuesday, February 12, 2013 4:27 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] New problem

I think you have to sue the original/master Tenant for eviction since that is the party with whom the landlord has contractual privity.  You could also name the sub-tenant as an additional defendant so the subtenant cannot claim you failed to join an indispensible party, but ultimately the original tenant is the party liable to landlord.  I don't know the exact cite, but there's a case that addresses this issue:  Bradford Underhill vs. Corporate Rental Solutions, Inc., 17 Fla. L. Weekly Supp. 1119a.  The case basically says that if the master tenant's lease is terminated, the sublease is also automatically terminated.  Hope this 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: Anthony J. Horky <ahorky@horkylaw.commailto:ahorky@horkylaw.com>
To: 'RPPTL Landlord Tenant Committee' <landten@lists.flabarrpptl.orgmailto:landten@lists.flabarrpptl.org>
Sent: Tuesday, February 12, 2013 4:16 PM
Subject: [RPPTL LandTen] New problem
I would appreciate if anyone can comment on the following:

Tenant enters into commercial lease for space from landlord as individual doing business as fictitious name. The lease is silent with respect to subleasing.

Thereafter, tenant subleases same space in her fictitious name but signs sublease in her individual capacity. Then, the subtenant defaults in the payment of rent, is not paying and will not vacate.  Tenant and subtenant sharing same premises comprised of two offices.

Client wants to sue subtenant.  The problem I see is that tenant is not the one that entered into the sublease, so how can tenant be the proper party to seek an eviction?

Other than breach of sublease agreement, who is the proper party to bring an action and would it be an eviction, unlawful detainer, or  ejectment?

Any input would be greatly appreciated. Thank you.

[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.

[cid:image002.png@01CE093E.9FB7D390]_______________________________________________landten mailing listlandten@lists.flabarrpptl.orgmailto:landten@lists.flabarrpptl.orghttp://mailman.fsr.com/mailman/listinfo/landten

Sorry, maybe I misunderstood the question and fact pattern.  Who wishes to evict, the landlord or master tenant?

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: Brenda B. Ezell brenda@ezellfirmpa.com
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Sent: Tuesday, February 12, 2013 4:27 PM
Subject: Re: [RPPTL LandTen] New problem

I am assuming that you represent the tenant (sublessor), but I believe that because there was performance under the sublease, the subtenant would likely lose any defense that the tenant (sublessor) is not the proper party to bring an eviction action.  The tenant should be able to bring the action to evict in her individual capacity since the primary lease was executed in that capacity and further because the sublease was executed in that capacity.
 
Did I miss something in your fact pattern?
 
 
Best regards,
 
Brenda B. Ezell
3560 Cardinal Point Drive, Suite 202
Jacksonville, FL 32257
904.240.4560 Tel
904.240.4561 Fax
http://www.ezellfirmpa.com/
 
CONFIDENTIALITY NOTICE:This e-mail and any files transmitted with it are confidential and may contain information which is legally privileged or otherwise exempt from disclosure. They are intended solely for the use of the individual or entity to whom this e-mail is addressed. If you are not one of the named recipients or otherwise have reason to believe that you have received this message in error, please immediately notify the sender and delete this message immediately from your computer. Any other use, retention, dissemination, forwarding, printing, or copying of this e-mail is strictly prohibited.
 
 
 
From:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Tuesday, February 12, 2013 4:16 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] New problem
 
I would appreciate if anyone can comment on the following:
 
Tenant enters into commercial lease for space from landlord as individual doing business as fictitious name. The lease is silent with respect to subleasing.
 
Thereafter, tenant subleases same space in her fictitious name but signs sublease in her individual capacity. Then, the subtenant defaults in the payment of rent, is not paying and will not vacate.  Tenant and subtenant sharing same premises comprised of two offices. 
 
Client wants to sue subtenant.  The problem I see is that tenant is not the one that entered into the sublease, so how can tenant be the proper party to seek an eviction? 
 
Other than breach of sublease agreement, who is the proper party to bring an action and would it be an eviction, unlawful detainer, or  ejectment?
 
Any input would be greatly appreciated. Thank you.
 
 
 
 
     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/
 
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.

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.
 
 
   _______________________________________________landten mailing listlandten@lists.flabarrpptl.orghttp://mailman.fsr.com/mailman/listinfo/landten

Thank you.  From your responses I should clarify.

I represent the tenant whose principal then entered into a sublease but
signed in their individual capacity.  I'm troubled by this because how can
this tenant evict a subtenant when the tenant, who has possession by virtue
of a lease in its DBA name, is not the same person who entered into the
sublease?  Therefore, can an eviction even be performed since who would be
the plaintiff?  Perhaps an ejectment or unlawful detainer action.

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 Cary Sabol
Sent: Tuesday, February 12, 2013 4:27 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] New problem

I think you have to sue the original/master Tenant for eviction since that
is the party with whom the landlord has contractual privity.  You could also
name the sub-tenant as an additional defendant so the subtenant cannot claim
you failed to join an indispensible party, but ultimately the original
tenant is the party liable to landlord.  I don't know the exact cite, but
there's a case that addresses this issue:  Bradford Underhill vs. Corporate
Rental Solutions, Inc., 17 Fla. L. Weekly Supp. 1119a.  The case basically
says that if the master tenant's lease is terminated, the sublease is also
automatically terminated.  Hope this 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: Anthony J. Horky ahorky@horkylaw.com
To: 'RPPTL Landlord Tenant Committee' landten@lists.flabarrpptl.org
Sent: Tuesday, February 12, 2013 4:16 PM
Subject: [RPPTL LandTen] New problem

I would appreciate if anyone can comment on the following:

Tenant enters into commercial lease for space from landlord as individual
doing business as fictitious name. The lease is silent with respect to
subleasing.

Thereafter, tenant subleases same space in her fictitious name but signs
sublease in her individual capacity. Then, the subtenant defaults in the
payment of rent, is not paying and will not vacate.  Tenant and subtenant
sharing same premises comprised of two offices.

Client wants to sue subtenant.  The problem I see is that tenant is not the
one that entered into the sublease, so how can tenant be the proper party to
seek an eviction?

Other than breach of sublease agreement, who is the proper party to bring an
action and would it be an eviction, unlawful detainer, or  ejectment?

Any input would be greatly appreciated. Thank you.

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 http://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.

_______________________________________________landten mailing
listlandten@lists.flabarrpptl.orghttp://mailman.fsr.com/mailman/listinfo/lan
dten

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Agreed. I think Gregory is right on point.

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: "Haney, Gregory" ghaney@slk-law.com
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Sent: Tuesday, February 12, 2013 4:33 PM
Subject: Re: [RPPTL LandTen] New problem

I’m reading this a little differently because I assume the tenant is Anthony’s client.  So my response would be:
 
Since a d/b/a is not a separate entity, your client is individually the tenant under the lease and is individually the sublandlord, regardless of any fictitious name being used.  So your client would likewise individually be the plaintiff.
 
If your client is the landlord, never mind my response!
 
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

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 Cary Sabol
Sent: Tuesday, February 12, 2013 4:27 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] New problem
 
I think you have to sue the original/master Tenant for eviction since that is the party with whom the landlord has contractual privity.  You could also name the sub-tenant as an additional defendant so the subtenant cannot claim you failed to join an indispensible party, but ultimately the original tenant is the party liable to landlord.   I don't know the exact cite, but there's a case that addresses this issue:  Bradford Underhill vs. Corporate Rental Solutions, Inc., 17 Fla. L. Weekly Supp. 1119a.  The case basically says that if the master tenant's lease is terminated, the sublease is also automatically terminated.  Hope this helps.
Cary 
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416 
Phone: (561) 281-2744 
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From:Anthony J. Horky ahorky@horkylaw.com
To: 'RPPTL Landlord Tenant Committee' landten@lists.flabarrpptl.org
Sent: Tuesday, February 12, 2013 4:16 PM
Subject: [RPPTL LandTen] New problem
I would appreciate if anyone can comment on the following:
 
Tenant enters into commercial lease for space from landlord as individual doing business as fictitious name. The lease is silent with respect to subleasing.
 
Thereafter, tenant subleases same space in her fictitious name but signs sublease in her individual capacity. Then, the subtenant defaults in the payment of rent, is not paying and will not vacate.  Tenant and subtenant sharing same premises comprised of two offices. 
 
Client wants to sue subtenant.  The problem I see is that tenant is not the one that entered into the sublease, so how can tenant be the proper party to seek an eviction? 
 
Other than breach of sublease agreement, who is the proper party to bring an action and would it be an eviction, unlawful detainer, or  ejectment?
  
Any input would be greatly appreciated. Thank you.
 
 
 
 
     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/
 
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.

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Not to bog things down but if the tenant was paying rent to the property party such that the use of the individual name was really a misnomer, there is I think case law that it doesn't really matter that the name is technically not the same .

I can dig it up if that's relevant to what your doing.

I don't think you need to go ejectment or otherwise because either way the Sub-T occupies by virtue of a lease. Perhaps at worst, you can always assign the lease or use a similar such vehicle to deal with the technical defect and make it a nullity

Eric Jacobs
ejacobs@beloffparker.com
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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Tuesday, February 12, 2013 4:36 PM
To: 'Cary Sabol'; 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] New problem

Thank you.  From your responses I should clarify.

I represent the tenant whose principal then entered into a sublease but signed in their individual capacity.  I'm troubled by this because how can this tenant evict a subtenant when the tenant, who has possession by virtue of a lease in its DBA name, is not the same person who entered into the sublease?  Therefore, can an eviction even be performed since who would be the plaintiff?  Perhaps an ejectment or unlawful detainer action.

[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 Cary Sabol
Sent: Tuesday, February 12, 2013 4:27 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] New problem

I think you have to sue the original/master Tenant for eviction since that is the party with whom the landlord has contractual privity.  You could also name the sub-tenant as an additional defendant so the subtenant cannot claim you failed to join an indispensible party, but ultimately the original tenant is the party liable to landlord.  I don't know the exact cite, but there's a case that addresses this issue:  Bradford Underhill vs. Corporate Rental Solutions, Inc., 17 Fla. L. Weekly Supp. 1119a.  The case basically says that if the master tenant's lease is terminated, the sublease is also automatically terminated.  Hope this 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: Anthony J. Horky <ahorky@horkylaw.commailto:ahorky@horkylaw.com>
To: 'RPPTL Landlord Tenant Committee' <landten@lists.flabarrpptl.orgmailto:landten@lists.flabarrpptl.org>
Sent: Tuesday, February 12, 2013 4:16 PM
Subject: [RPPTL LandTen] New problem
I would appreciate if anyone can comment on the following:

Tenant enters into commercial lease for space from landlord as individual doing business as fictitious name. The lease is silent with respect to subleasing.

Thereafter, tenant subleases same space in her fictitious name but signs sublease in her individual capacity. Then, the subtenant defaults in the payment of rent, is not paying and will not vacate.  Tenant and subtenant sharing same premises comprised of two offices.

Client wants to sue subtenant.  The problem I see is that tenant is not the one that entered into the sublease, so how can tenant be the proper party to seek an eviction?

Other than breach of sublease agreement, who is the proper party to bring an action and would it be an eviction, unlawful detainer, or  ejectment?

Any input would be greatly appreciated. Thank you.

[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.

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Prior to filing suit, have the individual assign the sublease to the tenant and then the tenant can sue to evict

Sent from my iPhone

On Feb 12, 2013, at 4:39 PM, "Anthony J. Horky" <ahorky@horkylaw.commailto:ahorky@horkylaw.com> wrote:

Thank you.  From your responses I should clarify.

I represent the tenant whose principal then entered into a sublease but signed in their individual capacity.  I’m troubled by this because how can this tenant evict a subtenant when the tenant, who has possession by virtue of a lease in its DBA name, is not the same person who entered into the sublease?  Therefore, can an eviction even be performed since who would be the plaintiff?  Perhaps an ejectment or unlawful detainer action.

<image004.png>

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.

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From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Tuesday, February 12, 2013 4:27 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] New problem

I think you have to sue the original/master Tenant for eviction since that is the party with whom the landlord has contractual privity.  You could also name the sub-tenant as an additional defendant so the subtenant cannot claim you failed to join an indispensible party, but ultimately the original tenant is the party liable to landlord.  I don't know the exact cite, but there's a case that addresses this issue:  Bradford Underhill vs. Corporate Rental Solutions, Inc., 17 Fla. L. Weekly Supp. 1119a.  The case basically says that if the master tenant's lease is terminated, the sublease is also automatically terminated.  Hope this 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: Anthony J. Horky <ahorky@horkylaw.commailto:ahorky@horkylaw.com>
To: 'RPPTL Landlord Tenant Committee' <landten@lists.flabarrpptl.orgmailto:landten@lists.flabarrpptl.org>
Sent: Tuesday, February 12, 2013 4:16 PM
Subject: [RPPTL LandTen] New problem
I would appreciate if anyone can comment on the following:

Tenant enters into commercial lease for space from landlord as individual doing business as fictitious name. The lease is silent with respect to subleasing.

Thereafter, tenant subleases same space in her fictitious name but signs sublease in her individual capacity. Then, the subtenant defaults in the payment of rent, is not paying and will not vacate.  Tenant and subtenant sharing same premises comprised of two offices.

Client wants to sue subtenant.  The problem I see is that tenant is not the one that entered into the sublease, so how can tenant be the proper party to seek an eviction?

Other than breach of sublease agreement, who is the proper party to bring an action and would it be an eviction, unlawful detainer, or  ejectment?

Any input would be greatly appreciated. Thank you.

<image003.png>

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.

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