Empathy List Archives

GP

George Pincus

Wed, Jul 22, 2009 7:28 PM

Greetings everyone:

I appreciate the opportunity to be back on this committee.

Has anyone dealt with the following issue:

I am representing a Landlord in negotiating a lease with an Agency of the State of Florida. The crappy Department of Management Services Lease which I am being forced to work off of contains the following provision:

"The provisions, terms or conditions of this Lease shall not be construed as a consent of the State of Florida to be sued because of said lease hold."

My understanding was that the State and its agencies, when acting as a participant in a business transaction is deemed to have waived sovereign immunity for its breaches of contract. The quoted provision seems to (i) support that legal conclusion and (ii) totally gut it, rendering any remedies for failure to pay rent or a non-monetary default useless. How do you do a lease with a tenant that is sovereignly immune and have meaningful remedies for a default by the tenant?

Anyone?

Thanks very much for your thoughts.

George A. Pincus, Esq.
Shareholder
Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A.
New River Center, Suite 2100
200 East Las Olas Boulevard
Ft. Lauderdale, FL 33301
Telephone: 954-766-9705
Facsimile: 954-766-9719
E-mail: gpincus@stearnsweaver.com mailto:gpincus@swmwas.com
www.stearnsweaver.com

Notice: My email address has changed. The domain name has changed from swmwas.com to stearnsweaver.com. Please make a note of it.

CONFIDENTIALITY NOTICE: The information contained in this E-mail message is attorney privileged and confidential information intended only for the use of the individual(s) named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please contact the sender by reply E-mail and destroy all copies of the original message. Thank you.

CIRCULAR 230 DISCLOSURE: To ensure compliance with recently-enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication, including any attachments, is not intended or written by us to be used, and cannot be used, by anyone for the purpose of avoiding federal tax penalties that may be imposed by the federal government or for promoting, marketing or recommending to another party any tax-related matters addressed herein.

Greetings everyone: I appreciate the opportunity to be back on this committee. Has anyone dealt with the following issue: I am representing a Landlord in negotiating a lease with an Agency of the State of Florida. The crappy Department of Management Services Lease which I am being forced to work off of contains the following provision: "The provisions, terms or conditions of this Lease shall not be construed as a consent of the State of Florida to be sued because of said lease hold." My understanding was that the State and its agencies, when acting as a participant in a business transaction is deemed to have waived sovereign immunity for its breaches of contract. The quoted provision seems to (i) support that legal conclusion and (ii) totally gut it, rendering any remedies for failure to pay rent or a non-monetary default useless. How do you do a lease with a tenant that is sovereignly immune and have meaningful remedies for a default by the tenant? Anyone? Thanks very much for your thoughts. George A. Pincus, Esq. Shareholder Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. New River Center, Suite 2100 200 East Las Olas Boulevard Ft. Lauderdale, FL 33301 Telephone: 954-766-9705 Facsimile: 954-766-9719 E-mail: gpincus@stearnsweaver.com<mailto:gpincus@swmwas.com> www.stearnsweaver.com Notice: My email address has changed. The domain name has changed from swmwas.com to stearnsweaver.com. Please make a note of it. ________________________________ CONFIDENTIALITY NOTICE: The information contained in this E-mail message is attorney privileged and confidential information intended only for the use of the individual(s) named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please contact the sender by reply E-mail and destroy all copies of the original message. Thank you. ________________________________ CIRCULAR 230 DISCLOSURE: To ensure compliance with recently-enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication, including any attachments, is not intended or written by us to be used, and cannot be used, by anyone for the purpose of avoiding federal tax penalties that may be imposed by the federal government or for promoting, marketing or recommending to another party any tax-related matters addressed herein.

NB

Neil B. Shoter

Wed, Jul 22, 2009 7:45 PM

Not had this come up. I have seen a number of State of Florida leases
but in no case has litigation ensued for breach by the State. I do
understand that there are certain limitations on liability claims (and
statutory limitations on the State's monetary obligations in the
liability/negligence context), but do not believe that the State could
never have contractual obligations for a lease default by virtue of that
particular sentence. I take it to mean that they don't want the mere
execution of the lease by the State to waive any immunity rights or
limitations they may have. Not artfully drafted. But I have not had
occasion to test the theory.

Neil B. Shoter
Partner / LEED Accredited Professional

Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL
33401
Direct: (561) 650-8535 | Fax: (561) 822-5525
E-Mail mailto:NShoter@shutts.com | Biography
<http://www.shutts.com/index.cfm/fa/attorney.bio/atty/466a1d2b-4049-425b
-af4b-a56f3cb8a441/Neil_B_Shoter.cfm/> | V-Card
<http://www.shutts.com/index.cfm/fa/attorney.vcf/atty/466a1d2b-4049-425b
-af4b-a56f3cb8a441/Neil_B_Shoter.cfm/> | Website
http://www.shutts.com/

From: landten-bounces@lists.flabarrpptl.org

[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of George
Pincus
Sent: Wednesday, July 22, 2009 3:28 PM
To: 'landten@lists.flabarrpptl.org'
Subject: [RPPTL LandTen] Lease to Agency of the State of Florida

Sovereign Immunity for Defaults?

Greetings everyone:

I appreciate the opportunity to be back on this committee.

Has anyone dealt with the following issue:

I am representing a Landlord in negotiating a lease with an
Agency of the State of Florida. The crappy Department of Management
Services Lease which I am being forced to work off of contains the
following provision:

"The provisions, terms or conditions of this Lease shall not be
construed as a consent of the State of Florida to be sued because of
said lease hold."

My understanding was that the State and its agencies, when
acting as a participant in a business transaction is deemed to have
waived sovereign immunity for its breaches of contract. The quoted
provision seems to (i) support that legal conclusion and (ii) totally
gut it, rendering any remedies for failure to pay rent or a non-monetary
default useless. How do you do a lease with a tenant that is
sovereignly immune and have meaningful remedies for a default by the
tenant?

Anyone?

Thanks very much for your thoughts.

George A. Pincus, Esq.

Shareholder

Stearns Weaver Miller Weissler
```
Alhadeff & Sitterson, P.A.
```
New River Center, Suite 2100

200 East Las Olas Boulevard

Ft. Lauderdale, FL 33301

Telephone: 954-766-9705

Facsimile: 954-766-9719

E-mail: gpincus@stearnsweaver.com mailto:gpincus@swmwas.com

www.stearnsweaver.com

Notice: My email address has changed. The domain name has
changed from swmwas.com to stearnsweaver.com. Please make a note of it.

CONFIDENTIALITY NOTICE: The information contained in this E-mail

message is attorney privileged and confidential information intended
only for the use of the individual(s) named above. If the reader of this
message is not the intended recipient, you are hereby notified that any
dissemination, distribution or copy of this communication is strictly
prohibited. If you have received this communication in error, please
contact the sender by reply E-mail and destroy all copies of the
original message. Thank you.

CIRCULAR 230 DISCLOSURE: To ensure compliance with

recently-enacted U.S. Treasury Department Regulations, we are now
required to advise you that, unless otherwise expressly indicated, any
federal tax advice contained in this communication, including any
attachments, is not intended or written by us to be used, and cannot be
used, by anyone for the purpose of avoiding federal tax penalties that
may be imposed by the federal government or for promoting, marketing or
recommending to another party any tax-related matters addressed herein.

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.

The information in this email transmission is privileged
and confidential. If you are not the intended recipient,
nor the employee or agent responsible for delivering it to
the intended recipient, you are hereby notified that any
dissemination or copying of this transmission (including
any attachments) is strictly prohibited. If you have
received this email in error, please notify the sender by
email reply. Thank you.

Not had this come up. I have seen a number of State of Florida leases but in no case has litigation ensued for breach by the State. I do understand that there are certain limitations on liability claims (and statutory limitations on the State's monetary obligations in the liability/negligence context), but do not believe that the State could never have contractual obligations for a lease default by virtue of that particular sentence. I take it to mean that they don't want the mere execution of the lease by the State to waive any immunity rights or limitations they may have. Not artfully drafted. But I have not had occasion to test the theory. Neil B. Shoter Partner / LEED Accredited Professional ________________________________ Shutts & Bowen LLP 1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401 Direct: (561) 650-8535 | Fax: (561) 822-5525 E-Mail <mailto:NShoter@shutts.com> | Biography <http://www.shutts.com/index.cfm/fa/attorney.bio/atty/466a1d2b-4049-425b -af4b-a56f3cb8a441/Neil_B_Shoter.cfm/> | V-Card <http://www.shutts.com/index.cfm/fa/attorney.vcf/atty/466a1d2b-4049-425b -af4b-a56f3cb8a441/Neil_B_Shoter.cfm/> | Website <http://www.shutts.com/> ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of George Pincus Sent: Wednesday, July 22, 2009 3:28 PM To: 'landten@lists.flabarrpptl.org' Subject: [RPPTL LandTen] Lease to Agency of the State of Florida - Sovereign Immunity for Defaults? Greetings everyone: I appreciate the opportunity to be back on this committee. Has anyone dealt with the following issue: I am representing a Landlord in negotiating a lease with an Agency of the State of Florida. The crappy Department of Management Services Lease which I am being forced to work off of contains the following provision: "The provisions, terms or conditions of this Lease shall not be construed as a consent of the State of Florida to be sued because of said lease hold." My understanding was that the State and its agencies, when acting as a participant in a business transaction is deemed to have waived sovereign immunity for its breaches of contract. The quoted provision seems to (i) support that legal conclusion and (ii) totally gut it, rendering any remedies for failure to pay rent or a non-monetary default useless. How do you do a lease with a tenant that is sovereignly immune and have meaningful remedies for a default by the tenant? Anyone? Thanks very much for your thoughts. George A. Pincus, Esq. Shareholder Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. New River Center, Suite 2100 200 East Las Olas Boulevard Ft. Lauderdale, FL 33301 Telephone: 954-766-9705 Facsimile: 954-766-9719 E-mail: gpincus@stearnsweaver.com <mailto:gpincus@swmwas.com> www.stearnsweaver.com Notice: My email address has changed. The domain name has changed from swmwas.com to stearnsweaver.com. Please make a note of it. ________________________________ CONFIDENTIALITY NOTICE: The information contained in this E-mail message is attorney privileged and confidential information intended only for the use of the individual(s) named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please contact the sender by reply E-mail and destroy all copies of the original message. Thank you. ________________________________ CIRCULAR 230 DISCLOSURE: To ensure compliance with recently-enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication, including any attachments, is not intended or written by us to be used, and cannot be used, by anyone for the purpose of avoiding federal tax penalties that may be imposed by the federal government or for promoting, marketing or recommending to another party any tax-related matters addressed herein. 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. The information in this email transmission is privileged and confidential. If you are not the intended recipient, nor the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or copying of this transmission (including any attachments) is strictly prohibited. If you have received this email in error, please notify the sender by email reply. Thank you.

WP

Warren P. Gammill

Wed, Jul 22, 2009 8:57 PM

George,

Read Florida Department of EnvIronmental Protection v. Contractpoint Florida
Parks, LLC, 986 So. 2d 1260 (Fla. 2008) and the cases cited therein. The
State is liable for its breaches of contract. Sovereign immunity does not
apply. Because parties can of course agree by contract to waive personal
liability, I would insist that that provision be removed. It is
overreaching and inconsistent with the law, but it could be interpreted by a
court as a waiver of liability and as binding on your client. It is too
risky to leave it in the lease.

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

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of George Pincus
Sent: Wednesday, July 22, 2009 3:28 PM
To: 'landten@lists.flabarrpptl.org'
Subject: [RPPTL LandTen] Lease to Agency of the State of Florida - Sovereign
Immunity for Defaults?

Greetings everyone:

I appreciate the opportunity to be back on this committee.

Has anyone dealt with the following issue:

I am representing a Landlord in negotiating a lease with an Agency of the
State of Florida. The crappy Department of Management Services Lease which
I am being forced to work off of contains the following provision:

"The provisions, terms or conditions of this Lease shall not be construed as
a consent of the State of Florida to be sued because of said lease hold."

My understanding was that the State and its agencies, when acting as a
participant in a business transaction is deemed to have waived sovereign
immunity for its breaches of contract. The quoted provision seems to (i)
support that legal conclusion and (ii) totally gut it, rendering any
remedies for failure to pay rent or a non-monetary default useless. How do
you do a lease with a tenant that is sovereignly immune and have meaningful
remedies for a default by the tenant?

Anyone?

Thanks very much for your thoughts.

George A. Pincus, Esq.

Shareholder

Stearns Weaver Miller Weissler

Alhadeff & Sitterson, P.A.

New River Center, Suite 2100

200 East Las Olas Boulevard

Ft. Lauderdale, FL 33301

Telephone: 954-766-9705

Facsimile: 954-766-9719

E-mail: gpincus@stearnsweaver.com mailto:gpincus@swmwas.com

www.stearnsweaver.com

Notice: My email address has changed. The domain name has changed from
swmwas.com to stearnsweaver.com. Please make a note of it.

CONFIDENTIALITY NOTICE: The information contained in this E-mail message is
attorney privileged and confidential information intended only for the use
of the individual(s) named above. If the reader of this message is not the
intended recipient, you are hereby notified that any dissemination,
distribution or copy of this communication is strictly prohibited. If you
have received this communication in error, please contact the sender by
reply E-mail and destroy all copies of the original message. Thank you.

CIRCULAR 230 DISCLOSURE: To ensure compliance with recently-enacted U.S.
Treasury Department Regulations, we are now required to advise you that,
unless otherwise expressly indicated, any federal tax advice contained in
this communication, including any attachments, is not intended or written by
us to be used, and cannot be used, by anyone for the purpose of avoiding
federal tax penalties that may be imposed by the federal government or for
promoting, marketing or recommending to another party any tax-related
matters addressed herein.

George, Read Florida Department of EnvIronmental Protection v. Contractpoint Florida Parks, LLC, 986 So. 2d 1260 (Fla. 2008) and the cases cited therein. The State is liable for its breaches of contract. Sovereign immunity does not apply. Because parties can of course agree by contract to waive personal liability, I would insist that that provision be removed. It is overreaching and inconsistent with the law, but it could be interpreted by a court as a waiver of liability and as binding on your client. It is too risky to leave it in the lease. 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 From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of George Pincus Sent: Wednesday, July 22, 2009 3:28 PM To: 'landten@lists.flabarrpptl.org' Subject: [RPPTL LandTen] Lease to Agency of the State of Florida - Sovereign Immunity for Defaults? Greetings everyone: I appreciate the opportunity to be back on this committee. Has anyone dealt with the following issue: I am representing a Landlord in negotiating a lease with an Agency of the State of Florida. The crappy Department of Management Services Lease which I am being forced to work off of contains the following provision: "The provisions, terms or conditions of this Lease shall not be construed as a consent of the State of Florida to be sued because of said lease hold." My understanding was that the State and its agencies, when acting as a participant in a business transaction is deemed to have waived sovereign immunity for its breaches of contract. The quoted provision seems to (i) support that legal conclusion and (ii) totally gut it, rendering any remedies for failure to pay rent or a non-monetary default useless. How do you do a lease with a tenant that is sovereignly immune and have meaningful remedies for a default by the tenant? Anyone? Thanks very much for your thoughts. George A. Pincus, Esq. Shareholder Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. New River Center, Suite 2100 200 East Las Olas Boulevard Ft. Lauderdale, FL 33301 Telephone: 954-766-9705 Facsimile: 954-766-9719 E-mail: gpincus@stearnsweaver.com <mailto:gpincus@swmwas.com> www.stearnsweaver.com Notice: My email address has changed. The domain name has changed from swmwas.com to stearnsweaver.com. Please make a note of it. _____ CONFIDENTIALITY NOTICE: The information contained in this E-mail message is attorney privileged and confidential information intended only for the use of the individual(s) named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please contact the sender by reply E-mail and destroy all copies of the original message. Thank you. _____ CIRCULAR 230 DISCLOSURE: To ensure compliance with recently-enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication, including any attachments, is not intended or written by us to be used, and cannot be used, by anyone for the purpose of avoiding federal tax penalties that may be imposed by the federal government or for promoting, marketing or recommending to another party any tax-related matters addressed herein.

GP

George Pincus

Wed, Jul 29, 2009 1:59 PM

Warren:

A late but sincere thank you for pointing out that case.

The broker on the deal insists that the State does not modify the form lease, but I am taking a shot at deleting that particular section.

Thanks again.

George A. Pincus, Esq.
Shareholder
Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A.
New River Center, Suite 2100
200 East Las Olas Boulevard
Ft. Lauderdale, FL 33301
Telephone: 954-766-9705
Facsimile: 954-766-9719
E-mail: gpincus@stearnsweaver.com mailto:gpincus@swmwas.com
www.stearnsweaver.com

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Warren P. Gammill
Sent: Wednesday, July 22, 2009 4:57 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Lease to Agency of the State of Florida - Sovereign Immunity for Defaults?

George,

Read Florida Department of EnvIronmental Protection v. Contractpoint Florida Parks, LLC, 986 So. 2d 1260 (Fla. 2008) and the cases cited therein. The State is liable for its breaches of contract. Sovereign immunity does not apply. Because parties can of course agree by contract to waive personal liability, I would insist that that provision be removed. It is overreaching and inconsistent with the law, but it could be interpreted by a court as a waiver of liability and as binding on your client. It is too risky to leave it in the lease.

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

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of George Pincus
Sent: Wednesday, July 22, 2009 3:28 PM
To: 'landten@lists.flabarrpptl.org'
Subject: [RPPTL LandTen] Lease to Agency of the State of Florida - Sovereign Immunity for Defaults?

Greetings everyone:

I appreciate the opportunity to be back on this committee.

Has anyone dealt with the following issue:

I am representing a Landlord in negotiating a lease with an Agency of the State of Florida. The crappy Department of Management Services Lease which I am being forced to work off of contains the following provision:

"The provisions, terms or conditions of this Lease shall not be construed as a consent of the State of Florida to be sued because of said lease hold."

My understanding was that the State and its agencies, when acting as a participant in a business transaction is deemed to have waived sovereign immunity for its breaches of contract. The quoted provision seems to (i) support that legal conclusion and (ii) totally gut it, rendering any remedies for failure to pay rent or a non-monetary default useless. How do you do a lease with a tenant that is sovereignly immune and have meaningful remedies for a default by the tenant?

Anyone?

Thanks very much for your thoughts.

George A. Pincus, Esq.
Shareholder
Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A.
New River Center, Suite 2100
200 East Las Olas Boulevard
Ft. Lauderdale, FL 33301
Telephone: 954-766-9705
Facsimile: 954-766-9719
E-mail: gpincus@stearnsweaver.com mailto:gpincus@swmwas.com
www.stearnsweaver.com

Notice: My email address has changed. The domain name has changed from swmwas.com to stearnsweaver.com. Please make a note of it.

CONFIDENTIALITY NOTICE: The information contained in this E-mail message is attorney privileged and confidential information intended only for the use of the individual(s) named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please contact the sender by reply E-mail and destroy all copies of the original message. Thank you.

CIRCULAR 230 DISCLOSURE: To ensure compliance with recently-enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication, including any attachments, is not intended or written by us to be used, and cannot be used, by anyone for the purpose of avoiding federal tax penalties that may be imposed by the federal government or for promoting, marketing or recommending to another party any tax-related matters addressed herein.

Warren: A late but sincere thank you for pointing out that case. The broker on the deal insists that the State does not modify the form lease, but I am taking a shot at deleting that particular section. Thanks again. George A. Pincus, Esq. Shareholder Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. New River Center, Suite 2100 200 East Las Olas Boulevard Ft. Lauderdale, FL 33301 Telephone: 954-766-9705 Facsimile: 954-766-9719 E-mail: gpincus@stearnsweaver.com<mailto:gpincus@swmwas.com> www.stearnsweaver.com From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Warren P. Gammill Sent: Wednesday, July 22, 2009 4:57 PM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Lease to Agency of the State of Florida - Sovereign Immunity for Defaults? George, Read Florida Department of EnvIronmental Protection v. Contractpoint Florida Parks, LLC, 986 So. 2d 1260 (Fla. 2008) and the cases cited therein. The State is liable for its breaches of contract. Sovereign immunity does not apply. Because parties can of course agree by contract to waive personal liability, I would insist that that provision be removed. It is overreaching and inconsistent with the law, but it could be interpreted by a court as a waiver of liability and as binding on your client. It is too risky to leave it in the lease. 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 From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of George Pincus Sent: Wednesday, July 22, 2009 3:28 PM To: 'landten@lists.flabarrpptl.org' Subject: [RPPTL LandTen] Lease to Agency of the State of Florida - Sovereign Immunity for Defaults? Greetings everyone: I appreciate the opportunity to be back on this committee. Has anyone dealt with the following issue: I am representing a Landlord in negotiating a lease with an Agency of the State of Florida. The crappy Department of Management Services Lease which I am being forced to work off of contains the following provision: "The provisions, terms or conditions of this Lease shall not be construed as a consent of the State of Florida to be sued because of said lease hold." My understanding was that the State and its agencies, when acting as a participant in a business transaction is deemed to have waived sovereign immunity for its breaches of contract. The quoted provision seems to (i) support that legal conclusion and (ii) totally gut it, rendering any remedies for failure to pay rent or a non-monetary default useless. How do you do a lease with a tenant that is sovereignly immune and have meaningful remedies for a default by the tenant? Anyone? Thanks very much for your thoughts. George A. Pincus, Esq. Shareholder Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. New River Center, Suite 2100 200 East Las Olas Boulevard Ft. Lauderdale, FL 33301 Telephone: 954-766-9705 Facsimile: 954-766-9719 E-mail: gpincus@stearnsweaver.com<mailto:gpincus@swmwas.com> www.stearnsweaver.com Notice: My email address has changed. The domain name has changed from swmwas.com to stearnsweaver.com. Please make a note of it. ________________________________ CONFIDENTIALITY NOTICE: The information contained in this E-mail message is attorney privileged and confidential information intended only for the use of the individual(s) named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please contact the sender by reply E-mail and destroy all copies of the original message. Thank you. ________________________________ CIRCULAR 230 DISCLOSURE: To ensure compliance with recently-enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication, including any attachments, is not intended or written by us to be used, and cannot be used, by anyone for the purpose of avoiding federal tax penalties that may be imposed by the federal government or for promoting, marketing or recommending to another party any tax-related matters addressed herein.

WG

warren.gammill (at) gmail.com

Wed, Jul 29, 2009 3:51 PM

Stick to your guns, George. You cannot risk creating a waiver-of-liability argument if the agency should later decide to default on the lease. Don't give them the ammo to argue from. Even colorable claims have an economic value in settlement negotiations. Good luck.
Warren Gammill
Sent via BlackBerry by AT&T

-----Original Message-----
From: George Pincus GPincus@stearnsweaver.com

Date: Wed, 29 Jul 2009 09:59:21
To: 'RPPTL Landlord Tenant Committee'landten@lists.flabarrpptl.org
Subject: Re: [RPPTL LandTen] Lease to Agency of the State of Florida
- Sovereign Immunity for Defaults?

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Stick to your guns, George. You cannot risk creating a waiver-of-liability argument if the agency should later decide to default on the lease. Don't give them the ammo to argue from. Even colorable claims have an economic value in settlement negotiations. Good luck. Warren Gammill Sent via BlackBerry by AT&T -----Original Message----- From: George Pincus <GPincus@stearnsweaver.com> Date: Wed, 29 Jul 2009 09:59:21 To: 'RPPTL Landlord Tenant Committee'<landten@lists.flabarrpptl.org> Subject: Re: [RPPTL LandTen] Lease to Agency of the State of Florida - Sovereign Immunity for Defaults? _______________________________________________ landten mailing list landten@lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/landten