Empathy List Archives

AJ

Arthur J. Menor

Wed, Jul 21, 2010 12:43 AM

Is a lease provision like the following of any significant benefit to a landlord:

TENANT WAIVES THE RIGHT TO INTERPOSE ANY NON-COMPULSORY COUNTERCLAIM OF ANY NATURE IN ANY ACTION TO OBTAIN POSSESSION OF THE PREMISES

In the past, it was a tenant strategy to attempt to delay an eviction by filing a counterclaim that exceeded the jurisdiction of the County Court to get the case transferred to Circuit Court where it would proceed on a slower track. Provisions such as the one above were included in leases to counter this strategy. Are most of the counterclaims that a tenant would pursue compulsory so that nothing significant is gained by a waiver such as this?

In Palm Beach County there is an Administrative Order that provides that if an eviction action is transferred to Circuit Court that the County Court Judge will hear the case as a temporary Circuit Court Judge. Are there similar orders in other circuits?

[http://www.shutts.com/shutts100.jpg]
Arthur J. Menor
Partner

Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401
Direct: (561) 650-8510 | Fax: (561) 822-5510
E-Mailmailto:AMenor@shutts.com | Biographyhttp://www.shutts.com/index.cfm/fa/attorney.bio/atty/8051073b-833e-444a-8b57-a6912a6d5435/Arthur_J_Menor.cfm/ | V-Cardhttp://www.shutts.com/index.cfm/fa/attorney.vcf/atty/8051073b-833e-444a-8b57-a6912a6d5435/Arthur_J_Menor.cfm/ | Websitehttp://www.shutts.com/

</pre>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. <pre>

Is a lease provision like the following of any significant benefit to a landlord: TENANT WAIVES THE RIGHT TO INTERPOSE ANY NON-COMPULSORY COUNTERCLAIM OF ANY NATURE IN ANY ACTION TO OBTAIN POSSESSION OF THE PREMISES In the past, it was a tenant strategy to attempt to delay an eviction by filing a counterclaim that exceeded the jurisdiction of the County Court to get the case transferred to Circuit Court where it would proceed on a slower track. Provisions such as the one above were included in leases to counter this strategy. Are most of the counterclaims that a tenant would pursue compulsory so that nothing significant is gained by a waiver such as this? In Palm Beach County there is an Administrative Order that provides that if an eviction action is transferred to Circuit Court that the County Court Judge will hear the case as a temporary Circuit Court Judge. Are there similar orders in other circuits? [http://www.shutts.com/shutts100.jpg] Arthur J. Menor Partner ________________________________ Shutts & Bowen LLP 1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401 Direct: (561) 650-8510 | Fax: (561) 822-5510 E-Mail<mailto:AMenor@shutts.com> | Biography<http://www.shutts.com/index.cfm/fa/attorney.bio/atty/8051073b-833e-444a-8b57-a6912a6d5435/Arthur_J_Menor.cfm/> | V-Card<http://www.shutts.com/index.cfm/fa/attorney.vcf/atty/8051073b-833e-444a-8b57-a6912a6d5435/Arthur_J_Menor.cfm/> | Website<http://www.shutts.com/> </pre>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. <pre>

GP

George Pincus

Tue, Aug 3, 2010 2:41 PM

Here are my facts:

   Landlord enters into a lease with Tenant #1.  The Assignment/Subletting clause says the typical "which consent shall not be unreasonably withheld" when the Landlord is asked by the Tenant to approve an assignment or sublease.  There are no criteria or conditions specified as to what qualifies as Landlord being reasonable when it says "no" to a proposed assignment or sublease.

   Three (3) years later and Landlord is now negotiating a lease with Tenant #2, who is asking that Landlord not lease other space in the building to Tenant #2's competitors, which will be listed on a schedule to the Lease.

   Question:  is it reasonable for Landlord to say "no" to Tenant #1 when Tenant #1 shows up with a request to sublet to one of Tenant #2's competitors on the list?

Obviously, the definitive answer is to go back to Tenant #1 and try and amend Tenant #1's Lease to preemptively provide that it is not unreasonable for Landlord to withhold consent to a proposed assignment or sublease to one of the listed competitors, but that is not going to happen.

I can't find any case law on this point (but at my advanced age, I suck at research). Does anyone have any relevant experience with this issue?

I appreciate your thoughts on this issue.

Thanks very much.

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

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.

Here are my facts: * Landlord enters into a lease with Tenant #1. The Assignment/Subletting clause says the typical "which consent shall not be unreasonably withheld" when the Landlord is asked by the Tenant to approve an assignment or sublease. There are no criteria or conditions specified as to what qualifies as Landlord being reasonable when it says "no" to a proposed assignment or sublease. * Three (3) years later and Landlord is now negotiating a lease with Tenant #2, who is asking that Landlord not lease other space in the building to Tenant #2's competitors, which will be listed on a schedule to the Lease. * Question: is it reasonable for Landlord to say "no" to Tenant #1 when Tenant #1 shows up with a request to sublet to one of Tenant #2's competitors on the list? Obviously, the definitive answer is to go back to Tenant #1 and try and amend Tenant #1's Lease to preemptively provide that it is not unreasonable for Landlord to withhold consent to a proposed assignment or sublease to one of the listed competitors, but that is not going to happen. I can't find any case law on this point (but at my advanced age, I suck at research). Does anyone have any relevant experience with this issue? I appreciate your thoughts on this issue. Thanks very much. 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 ________________________________ 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.

DW

David Weisman

Tue, Aug 3, 2010 3:09 PM

George:

I think that when an assignment request is made, it has to be reviewed with regard to exclusives in place at the time just as a proposal for a new tenant. If Landlord approved the assignment, it would violate the exclusive and it would be unreasonable to expect a Landlord to breach another contract in order to approve a proposed assignment.

The contrary answer would allow a competitor to circumvent the exclusive simply by acquiring an existing lease.

David Weisman
Board Certified Real Estate Lawyer
Greenspoon Marder, P.A.
Trade Center South, Suite 700
100 West Cypress Creek Road
Ft. Lauderdale, FL 33309
Phone 954-491-1120
Toll Free 888-491-1120
Direct Phone 954-343-6941
Direct Fax 954-343-6942

[cid:image001.png@01CB32FC.56B8F360]

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of George Pincus
Sent: Tuesday, August 03, 2010 10:42 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Assignment, Subletting and Exclusive Use Provision Question

Here are my facts:

    Landlord enters into a lease with Tenant #1.  The Assignment/Subletting clause says the typical "which consent shall not be unreasonably withheld" when the Landlord is asked by the Tenant to approve an assignment or sublease.  There are no criteria or conditions specified as to what qualifies as Landlord being reasonable when it says "no" to a proposed assignment or sublease.

    Three (3) years later and Landlord is now negotiating a lease with Tenant #2, who is asking that Landlord not lease other space in the building to Tenant #2's competitors, which will be listed on a schedule to the Lease.

    Question:  is it reasonable for Landlord to say "no" to Tenant #1 when Tenant #1 shows up with a request to sublet to one of Tenant #2's competitors on the list?

Obviously, the definitive answer is to go back to Tenant #1 and try and amend Tenant #1's Lease to preemptively provide that it is not unreasonable for Landlord to withhold consent to a proposed assignment or sublease to one of the listed competitors, but that is not going to happen.

I can't find any case law on this point (but at my advanced age, I suck at research). Does anyone have any relevant experience with this issue?

I appreciate your thoughts on this issue.

Thanks very much.

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

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.

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

Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it
cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

George: I think that when an assignment request is made, it has to be reviewed with regard to exclusives in place at the time just as a proposal for a new tenant. If Landlord approved the assignment, it would violate the exclusive and it would be unreasonable to expect a Landlord to breach another contract in order to approve a proposed assignment. The contrary answer would allow a competitor to circumvent the exclusive simply by acquiring an existing lease. David Weisman Board Certified Real Estate Lawyer Greenspoon Marder, P.A. Trade Center South, Suite 700 100 West Cypress Creek Road Ft. Lauderdale, FL 33309 Phone 954-491-1120 Toll Free 888-491-1120 Direct Phone 954-343-6941 Direct Fax 954-343-6942 [cid:image001.png@01CB32FC.56B8F360] From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of George Pincus Sent: Tuesday, August 03, 2010 10:42 AM To: 'RPPTL Landlord Tenant Committee' Subject: [RPPTL LandTen] Assignment, Subletting and Exclusive Use Provision Question Here are my facts: * Landlord enters into a lease with Tenant #1. The Assignment/Subletting clause says the typical "which consent shall not be unreasonably withheld" when the Landlord is asked by the Tenant to approve an assignment or sublease. There are no criteria or conditions specified as to what qualifies as Landlord being reasonable when it says "no" to a proposed assignment or sublease. * Three (3) years later and Landlord is now negotiating a lease with Tenant #2, who is asking that Landlord not lease other space in the building to Tenant #2's competitors, which will be listed on a schedule to the Lease. * Question: is it reasonable for Landlord to say "no" to Tenant #1 when Tenant #1 shows up with a request to sublet to one of Tenant #2's competitors on the list? Obviously, the definitive answer is to go back to Tenant #1 and try and amend Tenant #1's Lease to preemptively provide that it is not unreasonable for Landlord to withhold consent to a proposed assignment or sublease to one of the listed competitors, but that is not going to happen. I can't find any case law on this point (but at my advanced age, I suck at research). Does anyone have any relevant experience with this issue? I appreciate your thoughts on this issue. Thanks very much. 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 ________________________________ 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. The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by reply e-mail. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

DD

Drobner, David S.

Tue, Aug 3, 2010 3:16 PM

Usually the use clause guards against this...

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of David
Weisman
Sent: Tuesday, August 03, 2010 11:09 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Assignment, Subletting and Exclusive Use
Provision Question

George:

I think that when an assignment request is made, it has to be reviewed
with regard to exclusives in place at the time just as a proposal for a
new tenant. If Landlord approved the assignment, it would violate the
exclusive and it would be unreasonable to expect a Landlord to breach
another contract in order to approve a proposed assignment.

The contrary answer would allow a competitor to circumvent the exclusive
simply by acquiring an existing lease.

David Weisman

Board Certified Real Estate Lawyer

Greenspoon Marder, P.A.

Trade Center South, Suite 700

100 West Cypress Creek Road

Ft. Lauderdale, FL 33309

Phone 954-491-1120

Toll Free 888-491-1120

Direct Phone 954-343-6941

Direct Fax 954-343-6942

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of George
Pincus
Sent: Tuesday, August 03, 2010 10:42 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Assignment, Subletting and Exclusive Use
Provision Question

Here are my facts:

    Landlord enters into a lease with Tenant #1.  The

Assignment/Subletting clause says the typical "which consent shall not
be unreasonably withheld" when the Landlord is asked by the Tenant to
approve an assignment or sublease. There are no criteria or conditions
specified as to what qualifies as Landlord being reasonable when it says
"no" to a proposed assignment or sublease.

    Three (3) years later and Landlord is now negotiating a lease

with Tenant #2, who is asking that Landlord not lease other space in the
building to Tenant #2's competitors, which will be listed on a schedule
to the Lease.

    Question:  is it reasonable for Landlord to say "no" to Tenant

#1 when Tenant #1 shows up with a request to sublet to one of Tenant
#2's competitors on the list?

Obviously, the definitive answer is to go back to Tenant #1 and try and
amend Tenant #1's Lease to preemptively provide that it is not
unreasonable for Landlord to withhold consent to a proposed assignment
or sublease to one of the listed competitors, but that is not going to
happen.

I can't find any case law on this point (but at my advanced age, I suck
at research). Does anyone have any relevant experience with this
issue?

I appreciate your thoughts on this issue.

Thanks very much.

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

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.

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

Pursuant to Internal Revenue Service guidance, be advised that any
federal tax advice contained in this written or electronic
communication, including any attachments or enclosures, is not intended
or written to be used and it
cannot be used by any person or entity for the purpose of (i) avoiding
any tax penalties that may be imposed by the Internal Revenue Service or
any other U.S. Federal taxing authority or agency or (ii) promoting,
marketing or recommending to another party any transaction or matter
addressed herein.

Usually the use clause guards against this... ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of David Weisman Sent: Tuesday, August 03, 2010 11:09 AM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Assignment, Subletting and Exclusive Use Provision Question George: I think that when an assignment request is made, it has to be reviewed with regard to exclusives in place at the time just as a proposal for a new tenant. If Landlord approved the assignment, it would violate the exclusive and it would be unreasonable to expect a Landlord to breach another contract in order to approve a proposed assignment. The contrary answer would allow a competitor to circumvent the exclusive simply by acquiring an existing lease. David Weisman Board Certified Real Estate Lawyer Greenspoon Marder, P.A. Trade Center South, Suite 700 100 West Cypress Creek Road Ft. Lauderdale, FL 33309 Phone 954-491-1120 Toll Free 888-491-1120 Direct Phone 954-343-6941 Direct Fax 954-343-6942 From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of George Pincus Sent: Tuesday, August 03, 2010 10:42 AM To: 'RPPTL Landlord Tenant Committee' Subject: [RPPTL LandTen] Assignment, Subletting and Exclusive Use Provision Question Here are my facts: * Landlord enters into a lease with Tenant #1. The Assignment/Subletting clause says the typical "which consent shall not be unreasonably withheld" when the Landlord is asked by the Tenant to approve an assignment or sublease. There are no criteria or conditions specified as to what qualifies as Landlord being reasonable when it says "no" to a proposed assignment or sublease. * Three (3) years later and Landlord is now negotiating a lease with Tenant #2, who is asking that Landlord not lease other space in the building to Tenant #2's competitors, which will be listed on a schedule to the Lease. * Question: is it reasonable for Landlord to say "no" to Tenant #1 when Tenant #1 shows up with a request to sublet to one of Tenant #2's competitors on the list? Obviously, the definitive answer is to go back to Tenant #1 and try and amend Tenant #1's Lease to preemptively provide that it is not unreasonable for Landlord to withhold consent to a proposed assignment or sublease to one of the listed competitors, but that is not going to happen. I can't find any case law on this point (but at my advanced age, I suck at research). Does anyone have any relevant experience with this issue? I appreciate your thoughts on this issue. Thanks very much. 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 ________________________________ 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. The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by reply e-mail. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

JM

Jeffrey Mazor

Tue, Aug 3, 2010 3:45 PM

George:

I agree with David. Also, you are probably well familiar with this, but
maybe it will be useful (from
<https://web2.westlaw.com/find/default.wl?vc=0&ordoc=2011992142&rp=%2ffind%2
fdefault.wl&DB=735&SerialNum=1981119298&FindType=Y&ReferencePositionType=S&R
eferencePosition=1173&AP=&rs=WLW10.06&ifm=NotSet&fn=_top&sv=Split&mt=Florida
&utid=1&vr=2.0&pbc=81501C16> Fernandez v. Vazquez, 397 So.2d 1171, 1173-74
(Fla. 3d DCA 1981)). Underlines are mine:

[3] https://web2.westlaw.com/result/%09%09%09%09%09%09#F31981119298
<https://web2.westlaw.com/KCNotes/default.wl?utid=1&fn=_top&mt=Florida&pbc=A
FFE46B4&vr=2.0&sv=Split&ifm=NotSet&locatestring=HD(003)%2cCL(H%2cO)%2cDC(A%2
cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rs=WLW10.06&service=Find&rlt=CLID_FQRLT2
12475391038&serialnum=1981119298&rp=%2fKCNotes%2fdefault.wl&n=1&rlti=1>
Headnote Citing References[4]
https://web2.westlaw.com/result/%09%09%09%09%09%09#F41981119298
<https://web2.westlaw.com/KCNotes/default.wl?utid=1&fn=_top&mt=Florida&pbc=A
FFE46B4&vr=2.0&sv=Split&ifm=NotSet&locatestring=HD(004)%2cCL(H%2cO)%2cDC(A%2
cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rs=WLW10.06&service=Find&rlt=CLID_FQRLT2
12475391038&serialnum=1981119298&rp=%2fKCNotes%2fdefault.wl&n=1&rlti=1>
Headnote Citing References[5]
https://web2.westlaw.com/result/%09%09%09%09%09%09#F51981119298
<https://web2.westlaw.com/KCNotes/default.wl?utid=1&fn=_top&mt=Florida&pbc=A
FFE46B4&vr=2.0&sv=Split&ifm=NotSet&locatestring=HD(005)%2cCL(H%2cO)%2cDC(A%2
cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rs=WLW10.06&service=Find&rlt=CLID_FQRLT2
12475391038&serialnum=1981119298&rp=%2fKCNotes%2fdefault.wl&n=1&rlti=1>
Headnote Citing References Accordingly, we hold that a lessor may not
arbitrarily refuse consent to an assignment of a commercial lease which
provides, even without limiting language, that a lessee shall not assign or
sublease the premises without the written consent of the lessor.[FN8]
https://web2.westlaw.com/result/%09%09%09%09%09%09#B00881981119298 A
withholding of consent to assign a lease, which fails the tests for good
faith and commercial reasonableness, constitutes a breach of the lease
agreement. Whether a landlord breached the lease by acting unreasonably in
withholding consent of a commercial tenant is to be determined by a jury
according to the facts of that case. The following factors are among those
which a jury may properly consider in applying the standards of good faith
and commercial reasonableness: (a) financial responsibility of the proposed
subtenant (b) the "identity" or "business character" of the subtenant, i.
e., suitability for the particular building, (c) the need for alteration of
the premises, (d) the legality of the proposed use, and (e) the nature of
the occupancy, i. e., office, factory, clinic, etc.; See Popovic v. Florida
Mechanical Contractors, supra, Whitman v. Pet Inc., supra, American Book Co.
v. Yeshiva University, Development Foundation,
<https://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.06&serialnum=196912
6399&fn=_top&sv=Split&tc=-1&findtype=Y&ordoc=1981119298&mt=Florida&db=602&ut
id=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=AFFE46B4> Inc., 59 Misc.2d 31, 297
N.Y.S.2d 156 (1969); Johnson v. Jaquith, supra. Denying consent solely on
the basis of personal taste, convenience or sensibility or in order that the
landlord may charge a higher rent than originally contracted for have been
held arbitrary reasons failing the tests of good faith and reasonableness
under commercial leases. Catalina Inc. v. Biscayne Northeast Corp., supra;
Chanslor Western Oil
<https://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.06&serialnum=197012
4290&fn=_top&sv=Split&tc=-1&findtype=Y&ordoc=1981119298&mt=Florida&db=578&ut
id=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=AFFE46B4> & Development Co. v.
Metropolitan Sanitary District, 131 Ill.App.2d 527, 266 N.E.2d 405 (1970),
citing Broad and Branford Place Corp. v. J. J. Hockenjos Co., 132 N.J.L.
<https://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.06&referencepositio
ntype=S&serialnum=1944110374&fn=_top&sv=Split&referenceposition=82&findtype=
Y&tc=-1&ordoc=1981119298&mt=Florida&db=162&utid=1&vr=2.0&rp=%2ffind%2fdefaul
t.wl&pbc=AFFE46B4> 229, 39 A.2d 80, 82 (1944).

More recently cited in Speedway SuperAmerica, LLC
<https://web2.westlaw.com/find/default.wl?returnto=BusinessNameReturnTo&rs=W
LW10.06&ifm=NotSet&fn=_top&sv=Split&findtype=l&lvbp=T&docname=CIK(LE10368674
)&mt=Florida&db=BC-COMPANYSRBD&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=3F1
E7F52> v. Tropic Enterprises, Inc
<https://web2.westlaw.com/find/default.wl?returnto=BusinessNameReturnTo&rs=W
LW10.06&ifm=NotSet&fn=_top&sv=Split&findtype=l&lvbp=T&docname=CIK(LE00064224
)&mt=Florida&db=BC-COMPANYSRBD&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=3F1
E7F52> . 966 So.2d 1 Fla.App. 2 Dist.,2007.

Jeffrey R. Mazor, Esq.

J. R. Mazor & Associates, P.A.

Presidential Circle Building

4000 Hollywood Blvd., Suite 265-s

Hollywood, FL 33021

Phone: 954-962-3500

Fax: 954-962-3560

Email: Jmazor@Mazor.com

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of George Pincus
Sent: Tuesday, August 03, 2010 10:42 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Assignment, Subletting and Exclusive Use Provision
Question

Here are my facts:

. Landlord enters into a lease with Tenant #1. The
Assignment/Subletting clause says the typical "which consent shall not be
unreasonably withheld" when the Landlord is asked by the Tenant to approve
an assignment or sublease. There are no criteria or conditions specified as
to what qualifies as Landlord being reasonable when it says "no" to a
proposed assignment or sublease.

. Three (3) years later and Landlord is now negotiating a lease with
Tenant #2, who is asking that Landlord not lease other space in the building
to Tenant #2's competitors, which will be listed on a schedule to the Lease.

. Question: is it reasonable for Landlord to say "no" to Tenant #1
when Tenant #1 shows up with a request to sublet to one of Tenant #2's
competitors on the list?

Obviously, the definitive answer is to go back to Tenant #1 and try and
amend Tenant #1's Lease to preemptively provide that it is not unreasonable
for Landlord to withhold consent to a proposed assignment or sublease to one
of the listed competitors, but that is not going to happen.

I can't find any case law on this point (but at my advanced age, I suck at
research). Does anyone have any relevant experience with this issue?

I appreciate your thoughts on this issue.

Thanks very much.

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

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,
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have received this communication in error, please contact the sender by
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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: I agree with David. Also, you are probably well familiar with this, but maybe it will be useful (from <https://web2.westlaw.com/find/default.wl?vc=0&ordoc=2011992142&rp=%2ffind%2 fdefault.wl&DB=735&SerialNum=1981119298&FindType=Y&ReferencePositionType=S&R eferencePosition=1173&AP=&rs=WLW10.06&ifm=NotSet&fn=_top&sv=Split&mt=Florida &utid=1&vr=2.0&pbc=81501C16> Fernandez v. Vazquez, 397 So.2d 1171, 1173-74 (Fla. 3d DCA 1981)). Underlines are mine: [3] <https://web2.westlaw.com/result/%09%09%09%09%09%09#F31981119298> <https://web2.westlaw.com/KCNotes/default.wl?utid=1&fn=_top&mt=Florida&pbc=A FFE46B4&vr=2.0&sv=Split&ifm=NotSet&locatestring=HD(003)%2cCL(H%2cO)%2cDC(A%2 cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rs=WLW10.06&service=Find&rlt=CLID_FQRLT2 12475391038&serialnum=1981119298&rp=%2fKCNotes%2fdefault.wl&n=1&rlti=1> Headnote Citing References[4] <https://web2.westlaw.com/result/%09%09%09%09%09%09#F41981119298> <https://web2.westlaw.com/KCNotes/default.wl?utid=1&fn=_top&mt=Florida&pbc=A FFE46B4&vr=2.0&sv=Split&ifm=NotSet&locatestring=HD(004)%2cCL(H%2cO)%2cDC(A%2 cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rs=WLW10.06&service=Find&rlt=CLID_FQRLT2 12475391038&serialnum=1981119298&rp=%2fKCNotes%2fdefault.wl&n=1&rlti=1> Headnote Citing References[5] <https://web2.westlaw.com/result/%09%09%09%09%09%09#F51981119298> <https://web2.westlaw.com/KCNotes/default.wl?utid=1&fn=_top&mt=Florida&pbc=A FFE46B4&vr=2.0&sv=Split&ifm=NotSet&locatestring=HD(005)%2cCL(H%2cO)%2cDC(A%2 cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rs=WLW10.06&service=Find&rlt=CLID_FQRLT2 12475391038&serialnum=1981119298&rp=%2fKCNotes%2fdefault.wl&n=1&rlti=1> Headnote Citing References Accordingly, we hold that a lessor may not arbitrarily refuse consent to an assignment of a commercial lease which provides, even without limiting language, that a lessee shall not assign or sublease the premises without the written consent of the lessor.[FN8] <https://web2.westlaw.com/result/%09%09%09%09%09%09#B00881981119298> A withholding of consent to assign a lease, which fails the tests for good faith and commercial reasonableness, constitutes a breach of the lease agreement. Whether a landlord breached the lease by acting unreasonably in withholding consent of a commercial tenant is to be determined by a jury according to the facts of that case. The following factors are among those which a jury may properly consider in applying the standards of good faith and commercial reasonableness: (a) financial responsibility of the proposed subtenant (b) the "identity" or "business character" of the subtenant, i. e., suitability for the particular building, (c) the need for alteration of the premises, (d) the legality of the proposed use, and (e) the nature of the occupancy, i. e., office, factory, clinic, etc.; See Popovic v. Florida Mechanical Contractors, supra, Whitman v. Pet Inc., supra, American Book Co. v. Yeshiva University, Development Foundation, <https://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.06&serialnum=196912 6399&fn=_top&sv=Split&tc=-1&findtype=Y&ordoc=1981119298&mt=Florida&db=602&ut id=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=AFFE46B4> Inc., 59 Misc.2d 31, 297 N.Y.S.2d 156 (1969); Johnson v. Jaquith, supra. Denying consent solely on the basis of personal taste, convenience or sensibility or in order that the landlord may charge a higher rent than originally contracted for have been held arbitrary reasons failing the tests of good faith and reasonableness under commercial leases. Catalina Inc. v. Biscayne Northeast Corp., supra; Chanslor Western Oil <https://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.06&serialnum=197012 4290&fn=_top&sv=Split&tc=-1&findtype=Y&ordoc=1981119298&mt=Florida&db=578&ut id=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=AFFE46B4> & Development Co. v. Metropolitan Sanitary District, 131 Ill.App.2d 527, 266 N.E.2d 405 (1970), citing Broad and Branford Place Corp. v. J. J. Hockenjos Co., 132 N.J.L. <https://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.06&referencepositio ntype=S&serialnum=1944110374&fn=_top&sv=Split&referenceposition=82&findtype= Y&tc=-1&ordoc=1981119298&mt=Florida&db=162&utid=1&vr=2.0&rp=%2ffind%2fdefaul t.wl&pbc=AFFE46B4> 229, 39 A.2d 80, 82 (1944). More recently cited in Speedway SuperAmerica, LLC <https://web2.westlaw.com/find/default.wl?returnto=BusinessNameReturnTo&rs=W LW10.06&ifm=NotSet&fn=_top&sv=Split&findtype=l&lvbp=T&docname=CIK(LE10368674 )&mt=Florida&db=BC-COMPANYSRBD&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=3F1 E7F52> v. Tropic Enterprises, Inc <https://web2.westlaw.com/find/default.wl?returnto=BusinessNameReturnTo&rs=W LW10.06&ifm=NotSet&fn=_top&sv=Split&findtype=l&lvbp=T&docname=CIK(LE00064224 )&mt=Florida&db=BC-COMPANYSRBD&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=3F1 E7F52> . 966 So.2d 1 Fla.App. 2 Dist.,2007. Jeffrey R. Mazor, Esq. J. R. Mazor & Associates, P.A. Presidential Circle Building 4000 Hollywood Blvd., Suite 265-s Hollywood, FL 33021 Phone: 954-962-3500 Fax: 954-962-3560 Email: Jmazor@Mazor.com From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of George Pincus Sent: Tuesday, August 03, 2010 10:42 AM To: 'RPPTL Landlord Tenant Committee' Subject: [RPPTL LandTen] Assignment, Subletting and Exclusive Use Provision Question Here are my facts: . Landlord enters into a lease with Tenant #1. The Assignment/Subletting clause says the typical "which consent shall not be unreasonably withheld" when the Landlord is asked by the Tenant to approve an assignment or sublease. There are no criteria or conditions specified as to what qualifies as Landlord being reasonable when it says "no" to a proposed assignment or sublease. . Three (3) years later and Landlord is now negotiating a lease with Tenant #2, who is asking that Landlord not lease other space in the building to Tenant #2's competitors, which will be listed on a schedule to the Lease. . Question: is it reasonable for Landlord to say "no" to Tenant #1 when Tenant #1 shows up with a request to sublet to one of Tenant #2's competitors on the list? Obviously, the definitive answer is to go back to Tenant #1 and try and amend Tenant #1's Lease to preemptively provide that it is not unreasonable for Landlord to withhold consent to a proposed assignment or sublease to one of the listed competitors, but that is not going to happen. I can't find any case law on this point (but at my advanced age, I suck at research). Does anyone have any relevant experience with this issue? I appreciate your thoughts on this issue. Thanks very much. 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 _____ 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.

RG

Rick G. Emmanuel

Tue, Aug 3, 2010 4:33 PM

I think a critical factor here is the use clause in lease 1. If lease 1 is prior in time to lease 2, and if the proposed assignment does not violate the use clause in lease 1, I think the landlord would have a real problem on his hands. My suggestion is that the lease 2 exclusive needs to make exception for the lease 1 use clause.

Thanks,

Rick

Patrick G. Emmanuel, Jr., Esq.
Emmanuel, Sheppard & Condon, P.A.
30 South Spring Street
Pensacola, FL 32502
Telephone: (850) 433-6581
Facsimile: (850) 433-6162

CONFIDENTIALITY STATEMENT:

This e-mail message and all attachments transmitted with it may contain legally privileged and confidential information intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any reading, dissemination, distribution, copying, or other use of this message or its attachments is strictly prohibited. If you have received this message in error, please notify the sender immediately by telephone (850-433-6581) or by electronic mail (rge@esclaw.com mailto:rge@esclaw.com) and then delete this message and all copies and backups thereof. Thank you.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeffrey Mazor
Sent: Tuesday, August 03, 2010 10:46 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Assignment, Subletting and Exclusive Use Provision Question

George:

I agree with David. Also, you are probably well familiar with this, but maybe it will be useful (from Fernandez v. Vazquez, 397 So.2d 1171, 1173-74 (Fla. 3d DCA 1981)https://web2.westlaw.com/find/default.wl?vc=0&ordoc=2011992142&rp=%2ffind%2fdefault.wl&DB=735&SerialNum=1981119298&FindType=Y&ReferencePositionType=S&ReferencePosition=1173&AP=&rs=WLW10.06&ifm=NotSet&fn=_top&sv=Split&mt=Florida&utid=1&vr=2.0&pbc=81501C16). Underlines are mine:

[3]https://web2.westlaw.com/result/%09%09%09%09%09%09#F31981119298 [cid:180582716@03082010-339B] https://web2.westlaw.com/KCNotes/default.wl?utid=1&fn=_top&mt=Florida&pbc=AFFE46B4&vr=2.0&sv=Split&ifm=NotSet&locatestring=HD(003)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rs=WLW10.06&service=Find&rlt=CLID_FQRLT212475391038&serialnum=1981119298&rp=%2fKCNotes%2fdefault.wl&n=1&rlti=1 [4]https://web2.westlaw.com/result/%09%09%09%09%09%09#F41981119298 [cid:180582716@03082010-339B] https://web2.westlaw.com/KCNotes/default.wl?utid=1&fn=_top&mt=Florida&pbc=AFFE46B4&vr=2.0&sv=Split&ifm=NotSet&locatestring=HD(004)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rs=WLW10.06&service=Find&rlt=CLID_FQRLT212475391038&serialnum=1981119298&rp=%2fKCNotes%2fdefault.wl&n=1&rlti=1 [5]https://web2.westlaw.com/result/%09%09%09%09%09%09#F51981119298 [cid:180582716@03082010-339B] https://web2.westlaw.com/KCNotes/default.wl?utid=1&fn=_top&mt=Florida&pbc=AFFE46B4&vr=2.0&sv=Split&ifm=NotSet&locatestring=HD(005)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rs=WLW10.06&service=Find&rlt=CLID_FQRLT212475391038&serialnum=1981119298&rp=%2fKCNotes%2fdefault.wl&n=1&rlti=1 Accordingly, we hold that a lessor may not arbitrarily refuse consent to an assignment of a commercial lease which provides, even without limiting language, that a lessee shall not assign or sublease the premises without the written consent of the lessor.[FN8]https://web2.westlaw.com/result/%09%09%09%09%09%09#B00881981119298 A withholding of consent to assign a lease, which fails the tests for good faith and commercial reasonableness, constitutes a breach of the lease agreement. Whether a landlord breached the lease by acting unreasonably in withholding consent of a commercial tenant is to be determined by a jury according to the facts of that case. The following factors are among those which a jury may properly consider in applying the standards of good faith and commercial reasonableness: (a) financial responsibility of the proposed subtenant (b) the "identity" or "business character" of the subtenant, i. e., suitability for the particular building, (c) the need for alteration of the premises, (d) the legality of the proposed use, and (e) the nature of the occupancy, i. e., office, factory, clinic, etc.; See Popovic v. Florida Mechanical Contractors, supra, Whitman v. Pet Inc., supra, American Book Co. v. Yeshiva University, Development Foundation, Inc., 59 Misc.2d 31, 297 N.Y.S.2d 156 (1969)https://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.06&serialnum=1969126399&fn=_top&sv=Split&tc=-1&findtype=Y&ordoc=1981119298&mt=Florida&db=602&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=AFFE46B4; Johnson v. Jaquith, supra. Denying consent solely on the basis of personal taste, convenience or sensibility or in order that the landlord may charge a higher rent than originally contracted for have been held arbitrary reasons failing the tests of good faith and reasonableness under commercial leases. Catalina Inc. v. Biscayne Northeast Corp., supra; Chanslor Western Oil & Development Co. v. Metropolitan Sanitary District, 131 Ill.App.2d 527, 266 N.E.2d 405 (1970)https://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.06&serialnum=1970124290&fn=_top&sv=Split&tc=-1&findtype=Y&ordoc=1981119298&mt=Florida&db=578&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=AFFE46B4, citing Broad and Branford Place Corp. v. J. J. Hockenjos Co., 132 N.J.L. 229, 39 A.2d 80, 82 (1944)https://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.06&referencepositiontype=S&serialnum=1944110374&fn=_top&sv=Split&referenceposition=82&findtype=Y&tc=-1&ordoc=1981119298&mt=Florida&db=162&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=AFFE46B4.

More recently cited in Speedway SuperAmerica, LLChttps://web2.westlaw.com/find/default.wl?returnto=BusinessNameReturnTo&rs=WLW10.06&ifm=NotSet&fn=_top&sv=Split&findtype=l&lvbp=T&docname=CIK(LE10368674)&mt=Florida&db=BC-COMPANYSRBD&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=3F1E7F52 v. Tropic Enterprises, Inchttps://web2.westlaw.com/find/default.wl?returnto=BusinessNameReturnTo&rs=WLW10.06&ifm=NotSet&fn=_top&sv=Split&findtype=l&lvbp=T&docname=CIK(LE00064224)&mt=Florida&db=BC-COMPANYSRBD&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=3F1E7F52. 966 So.2d 1 Fla.App. 2 Dist.,2007.

Jeffrey R. Mazor, Esq.
J. R. Mazor & Associates, P.A.
Presidential Circle Building
4000 Hollywood Blvd., Suite 265-s
Hollywood, FL 33021
Phone: 954-962-3500
Fax: 954-962-3560
Email: Jmazor@Mazor.com mailto:Jmazor@Mazor.com

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of George Pincus
Sent: Tuesday, August 03, 2010 10:42 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Assignment, Subletting and Exclusive Use Provision Question

Here are my facts:

    Landlord enters into a lease with Tenant #1.  The Assignment/Subletting clause says the typical "which consent shall not be unreasonably withheld" when the Landlord is asked by the Tenant to approve an assignment or sublease.  There are no criteria or conditions specified as to what qualifies as Landlord being reasonable when it says "no" to a proposed assignment or sublease.

    Three (3) years later and Landlord is now negotiating a lease with Tenant #2, who is asking that Landlord not lease other space in the building to Tenant #2's competitors, which will be listed on a schedule to the Lease.

    Question:  is it reasonable for Landlord to say "no" to Tenant #1 when Tenant #1 shows up with a request to sublet to one of Tenant #2's competitors on the list?

Obviously, the definitive answer is to go back to Tenant #1 and try and amend Tenant #1's Lease to preemptively provide that it is not unreasonable for Landlord to withhold consent to a proposed assignment or sublease to one of the listed competitors, but that is not going to happen.

I can't find any case law on this point (but at my advanced age, I suck at research). Does anyone have any relevant experience with this issue?

I appreciate your thoughts on this issue.

Thanks very much.

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

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.

I think a critical factor here is the use clause in lease 1. If lease 1 is prior in time to lease 2, and if the proposed assignment does not violate the use clause in lease 1, I think the landlord would have a real problem on his hands. My suggestion is that the lease 2 exclusive needs to make exception for the lease 1 use clause. Thanks, Rick Patrick G. Emmanuel, Jr., Esq. Emmanuel, Sheppard & Condon, P.A. 30 South Spring Street Pensacola, FL 32502 Telephone: (850) 433-6581 Facsimile: (850) 433-6162 CONFIDENTIALITY STATEMENT: This e-mail message and all attachments transmitted with it may contain legally privileged and confidential information intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any reading, dissemination, distribution, copying, or other use of this message or its attachments is strictly prohibited. If you have received this message in error, please notify the sender immediately by telephone (850-433-6581) or by electronic mail (rge@esclaw.com<mailto:rge@esclaw.com>) and then delete this message and all copies and backups thereof. Thank you. ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeffrey Mazor Sent: Tuesday, August 03, 2010 10:46 AM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Assignment, Subletting and Exclusive Use Provision Question George: I agree with David. Also, you are probably well familiar with this, but maybe it will be useful (from Fernandez v. Vazquez, 397 So.2d 1171, 1173-74 (Fla. 3d DCA 1981)<https://web2.westlaw.com/find/default.wl?vc=0&ordoc=2011992142&rp=%2ffind%2fdefault.wl&DB=735&SerialNum=1981119298&FindType=Y&ReferencePositionType=S&ReferencePosition=1173&AP=&rs=WLW10.06&ifm=NotSet&fn=_top&sv=Split&mt=Florida&utid=1&vr=2.0&pbc=81501C16>). Underlines are mine: [3]<https://web2.westlaw.com/result/%09%09%09%09%09%09#F31981119298> [cid:180582716@03082010-339B] <https://web2.westlaw.com/KCNotes/default.wl?utid=1&fn=_top&mt=Florida&pbc=AFFE46B4&vr=2.0&sv=Split&ifm=NotSet&locatestring=HD(003)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rs=WLW10.06&service=Find&rlt=CLID_FQRLT212475391038&serialnum=1981119298&rp=%2fKCNotes%2fdefault.wl&n=1&rlti=1> [4]<https://web2.westlaw.com/result/%09%09%09%09%09%09#F41981119298> [cid:180582716@03082010-339B] <https://web2.westlaw.com/KCNotes/default.wl?utid=1&fn=_top&mt=Florida&pbc=AFFE46B4&vr=2.0&sv=Split&ifm=NotSet&locatestring=HD(004)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rs=WLW10.06&service=Find&rlt=CLID_FQRLT212475391038&serialnum=1981119298&rp=%2fKCNotes%2fdefault.wl&n=1&rlti=1> [5]<https://web2.westlaw.com/result/%09%09%09%09%09%09#F51981119298> [cid:180582716@03082010-339B] <https://web2.westlaw.com/KCNotes/default.wl?utid=1&fn=_top&mt=Florida&pbc=AFFE46B4&vr=2.0&sv=Split&ifm=NotSet&locatestring=HD(005)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rs=WLW10.06&service=Find&rlt=CLID_FQRLT212475391038&serialnum=1981119298&rp=%2fKCNotes%2fdefault.wl&n=1&rlti=1> Accordingly, we hold that a lessor may not arbitrarily refuse consent to an assignment of a commercial lease which provides, even without limiting language, that a lessee shall not assign or sublease the premises without the written consent of the lessor.[FN8]<https://web2.westlaw.com/result/%09%09%09%09%09%09#B00881981119298> A withholding of consent to assign a lease, which fails the tests for good faith and commercial reasonableness, constitutes a breach of the lease agreement. Whether a landlord breached the lease by acting unreasonably in withholding consent of a commercial tenant is to be determined by a jury according to the facts of that case. The following factors are among those which a jury may properly consider in applying the standards of good faith and commercial reasonableness: (a) financial responsibility of the proposed subtenant (b) the "identity" or "business character" of the subtenant, i. e., suitability for the particular building, (c) the need for alteration of the premises, (d) the legality of the proposed use, and (e) the nature of the occupancy, i. e., office, factory, clinic, etc.; See Popovic v. Florida Mechanical Contractors, supra, Whitman v. Pet Inc., supra, American Book Co. v. Yeshiva University, Development Foundation, Inc., 59 Misc.2d 31, 297 N.Y.S.2d 156 (1969)<https://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.06&serialnum=1969126399&fn=_top&sv=Split&tc=-1&findtype=Y&ordoc=1981119298&mt=Florida&db=602&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=AFFE46B4>; Johnson v. Jaquith, supra. Denying consent solely on the basis of personal taste, convenience or sensibility or in order that the landlord may charge a higher rent than originally contracted for have been held arbitrary reasons failing the tests of good faith and reasonableness under commercial leases. Catalina Inc. v. Biscayne Northeast Corp., supra; Chanslor Western Oil & Development Co. v. Metropolitan Sanitary District, 131 Ill.App.2d 527, 266 N.E.2d 405 (1970)<https://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.06&serialnum=1970124290&fn=_top&sv=Split&tc=-1&findtype=Y&ordoc=1981119298&mt=Florida&db=578&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=AFFE46B4>, citing Broad and Branford Place Corp. v. J. J. Hockenjos Co., 132 N.J.L. 229, 39 A.2d 80, 82 (1944)<https://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.06&referencepositiontype=S&serialnum=1944110374&fn=_top&sv=Split&referenceposition=82&findtype=Y&tc=-1&ordoc=1981119298&mt=Florida&db=162&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=AFFE46B4>. More recently cited in Speedway SuperAmerica, LLC<https://web2.westlaw.com/find/default.wl?returnto=BusinessNameReturnTo&rs=WLW10.06&ifm=NotSet&fn=_top&sv=Split&findtype=l&lvbp=T&docname=CIK(LE10368674)&mt=Florida&db=BC-COMPANYSRBD&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=3F1E7F52> v. Tropic Enterprises, Inc<https://web2.westlaw.com/find/default.wl?returnto=BusinessNameReturnTo&rs=WLW10.06&ifm=NotSet&fn=_top&sv=Split&findtype=l&lvbp=T&docname=CIK(LE00064224)&mt=Florida&db=BC-COMPANYSRBD&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=3F1E7F52>. 966 So.2d 1 Fla.App. 2 Dist.,2007. Jeffrey R. Mazor, Esq. J. R. Mazor & Associates, P.A. Presidential Circle Building 4000 Hollywood Blvd., Suite 265-s Hollywood, FL 33021 Phone: 954-962-3500 Fax: 954-962-3560 Email: Jmazor@Mazor.com<mailto:Jmazor@Mazor.com> From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of George Pincus Sent: Tuesday, August 03, 2010 10:42 AM To: 'RPPTL Landlord Tenant Committee' Subject: [RPPTL LandTen] Assignment, Subletting and Exclusive Use Provision Question Here are my facts: * Landlord enters into a lease with Tenant #1. The Assignment/Subletting clause says the typical "which consent shall not be unreasonably withheld" when the Landlord is asked by the Tenant to approve an assignment or sublease. There are no criteria or conditions specified as to what qualifies as Landlord being reasonable when it says "no" to a proposed assignment or sublease. * Three (3) years later and Landlord is now negotiating a lease with Tenant #2, who is asking that Landlord not lease other space in the building to Tenant #2's competitors, which will be listed on a schedule to the Lease. * Question: is it reasonable for Landlord to say "no" to Tenant #1 when Tenant #1 shows up with a request to sublet to one of Tenant #2's competitors on the list? Obviously, the definitive answer is to go back to Tenant #1 and try and amend Tenant #1's Lease to preemptively provide that it is not unreasonable for Landlord to withhold consent to a proposed assignment or sublease to one of the listed competitors, but that is not going to happen. I can't find any case law on this point (but at my advanced age, I suck at research). Does anyone have any relevant experience with this issue? I appreciate your thoughts on this issue. Thanks very much. 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 ________________________________ 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.

DD

Drobner, David S.

Tue, Aug 3, 2010 5:04 PM

Exclusives in retail context are tricky to do properly. You need to
focus on a lot of things; make sure use clauses are tightly written;
keep a running list of all current exclusives which govern in the
center; require each new tenant to agree its use is expressly subject to
and limited by that exclusives list attached to its lease and cause each
new tenant to agree to be bound by and not violate those exclusives;
and, in granting new exclusives, there has to be carve outs for existing
tenants and their uses and permitted uses under their leases, as same
may be assigned, sublet, extended, relocated or replaced; and often
carveouts also for some outparcels or other phases of a center, and
always carve outs for the larger tenants - majors, department stores,
grocery stores and other anchors; then you need to push for strict
limitation of remedies on breach if at all possible.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Rick G.
Emmanuel
Sent: Tuesday, August 03, 2010 12:34 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Assignment, Subletting and Exclusive Use
Provision Question

I think a critical factor here is the use clause in lease 1. If lease 1
is prior in time to lease 2, and if the proposed assignment does not
violate the use clause in lease 1, I think the landlord would have a
real problem on his hands. My suggestion is that the lease 2 exclusive
needs to make exception for the lease 1 use clause.

Thanks,

Rick

Patrick G. Emmanuel, Jr., Esq.
Emmanuel, Sheppard & Condon, P.A.
30 South Spring Street
Pensacola, FL 32502
Telephone: (850) 433-6581
Facsimile: (850) 433-6162

CONFIDENTIALITY STATEMENT:

This e-mail message and all attachments transmitted with it may contain
legally privileged and confidential information intended solely for the
use of the addressee. If the reader of this message is not the intended
recipient, you are hereby notified that any reading, dissemination,
distribution, copying, or other use of this message or its attachments
is strictly prohibited. If you have received this message in error,
please notify the sender immediately by telephone (850-433-6581) or by
electronic mail (rge@esclaw.com) and then delete this message and all
copies and backups thereof. Thank you.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeffrey
Mazor
Sent: Tuesday, August 03, 2010 10:46 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Assignment, Subletting and Exclusive Use
Provision Question

George:

I agree with David. Also, you are probably well familiar with this, but
maybe it will be useful (from Fernandez v. Vazquez, 397 So.2d 1171,
1173-74 (Fla. 3d DCA 1981)
<https://web2.westlaw.com/find/default.wl?vc=0&ordoc=2011992142&rp=%2ffi
nd%2fdefault.wl&DB=735&SerialNum=1981119298&FindType=Y&ReferencePosition
Type=S&ReferencePosition=1173&AP=&rs=WLW10.06&ifm=NotSet&fn=_top&sv=Spli
t&mt=Florida&utid=1&vr=2.0&pbc=81501C16> ). Underlines are mine:

[3] https://web2.westlaw.com/result/%09%09%09%09%09%09#F31981119298
<https://web2.westlaw.com/KCNotes/default.wl?utid=1&fn=_top&mt=Florida&p
bc=AFFE46B4&vr=2.0&sv=Split&ifm=NotSet&locatestring=HD(003)%2cCL(H%2cO)%
2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rs=WLW10.06&service=Find&rlt
=CLID_FQRLT212475391038&serialnum=1981119298&rp=%2fKCNotes%2fdefault.wl&
n=1&rlti=1> [4]
https://web2.westlaw.com/result/%09%09%09%09%09%09#F41981119298
<https://web2.westlaw.com/KCNotes/default.wl?utid=1&fn=_top&mt=Florida&p
bc=AFFE46B4&vr=2.0&sv=Split&ifm=NotSet&locatestring=HD(004)%2cCL(H%2cO)%
2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rs=WLW10.06&service=Find&rlt
=CLID_FQRLT212475391038&serialnum=1981119298&rp=%2fKCNotes%2fdefault.wl&
n=1&rlti=1> [5]
https://web2.westlaw.com/result/%09%09%09%09%09%09#F51981119298
<https://web2.westlaw.com/KCNotes/default.wl?utid=1&fn=_top&mt=Florida&p
bc=AFFE46B4&vr=2.0&sv=Split&ifm=NotSet&locatestring=HD(005)%2cCL(H%2cO)%
2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rs=WLW10.06&service=Find&rlt
=CLID_FQRLT212475391038&serialnum=1981119298&rp=%2fKCNotes%2fdefault.wl&
n=1&rlti=1> Accordingly, we hold that a lessor may not arbitrarily
refuse consent to an assignment of a commercial lease which provides,
even without limiting language, that a lessee shall not assign or
sublease the premises without the written consent of the lessor.[FN8]
https://web2.westlaw.com/result/%09%09%09%09%09%09#B00881981119298 A
withholding of consent to assign a lease, which fails the tests for good
faith and commercial reasonableness, constitutes a breach of the lease
agreement. Whether a landlord breached the lease by acting unreasonably
in withholding consent of a commercial tenant is to be determined by a
jury according to the facts of that case. The following factors are
among those which a jury may properly consider in applying the standards
of good faith and commercial reasonableness: (a) financial
responsibility of the proposed subtenant (b) the "identity" or "business
character" of the subtenant, i. e., suitability for the particular
building, (c) the need for alteration of the premises, (d) the legality
of the proposed use, and (e) the nature of the occupancy, i. e., office,
factory, clinic, etc.; See Popovic v. Florida Mechanical Contractors,
supra, Whitman v. Pet Inc., supra, American Book Co. v. Yeshiva
University, Development Foundation, Inc., 59 Misc.2d 31, 297 N.Y.S.2d
156 (1969)
<https://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.06&serialnum=19
69126399&fn=_top&sv=Split&tc=-1&findtype=Y&ordoc=1981119298&mt=Florida&d
b=602&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=AFFE46B4> ; Johnson v.
Jaquith, supra. Denying consent solely on the basis of personal taste,
convenience or sensibility or in order that the landlord may charge a
higher rent than originally contracted for have been held arbitrary
reasons failing the tests of good faith and reasonableness under
commercial leases. Catalina Inc. v. Biscayne Northeast Corp., supra;
Chanslor Western Oil & Development Co. v. Metropolitan Sanitary
District, 131 Ill.App.2d 527, 266 N.E.2d 405 (1970)
<https://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.06&serialnum=19
70124290&fn=_top&sv=Split&tc=-1&findtype=Y&ordoc=1981119298&mt=Florida&d
b=578&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=AFFE46B4> , citing Broad
and Branford Place Corp. v. J. J. Hockenjos Co., 132 N.J.L. 229, 39 A.2d
80, 82 (1944)
<https://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.06&referencepos
itiontype=S&serialnum=1944110374&fn=_top&sv=Split&referenceposition=82&f
indtype=Y&tc=-1&ordoc=1981119298&mt=Florida&db=162&utid=1&vr=2.0&rp=%2ff
ind%2fdefault.wl&pbc=AFFE46B4> .

More recently cited in Speedway SuperAmerica, LLC
<https://web2.westlaw.com/find/default.wl?returnto=BusinessNameReturnTo&
rs=WLW10.06&ifm=NotSet&fn=_top&sv=Split&findtype=l&lvbp=T&docname=CIK(LE
10368674)&mt=Florida&db=BC-COMPANYSRBD&utid=1&vr=2.0&rp=%2ffind%2fdefaul
t.wl&pbc=3F1E7F52> v. Tropic Enterprises, Inc
<https://web2.westlaw.com/find/default.wl?returnto=BusinessNameReturnTo&
rs=WLW10.06&ifm=NotSet&fn=_top&sv=Split&findtype=l&lvbp=T&docname=CIK(LE
00064224)&mt=Florida&db=BC-COMPANYSRBD&utid=1&vr=2.0&rp=%2ffind%2fdefaul
t.wl&pbc=3F1E7F52> . 966 So.2d 1 Fla.App. 2 Dist.,2007.

Jeffrey R. Mazor, Esq.

J. R. Mazor & Associates, P.A.

Presidential Circle Building

4000 Hollywood Blvd., Suite 265-s

Hollywood, FL 33021

Phone: 954-962-3500

Fax: 954-962-3560

Email: Jmazor@Mazor.com

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of George
Pincus
Sent: Tuesday, August 03, 2010 10:42 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Assignment, Subletting and Exclusive Use
Provision Question

Here are my facts:

    Landlord enters into a lease with Tenant #1.  The

Assignment/Subletting clause says the typical "which consent shall not
be unreasonably withheld" when the Landlord is asked by the Tenant to
approve an assignment or sublease. There are no criteria or conditions
specified as to what qualifies as Landlord being reasonable when it says
"no" to a proposed assignment or sublease.

    Three (3) years later and Landlord is now negotiating a lease

with Tenant #2, who is asking that Landlord not lease other space in the
building to Tenant #2's competitors, which will be listed on a schedule
to the Lease.

    Question:  is it reasonable for Landlord to say "no" to Tenant

#1 when Tenant #1 shows up with a request to sublet to one of Tenant
#2's competitors on the list?

Obviously, the definitive answer is to go back to Tenant #1 and try and
amend Tenant #1's Lease to preemptively provide that it is not
unreasonable for Landlord to withhold consent to a proposed assignment
or sublease to one of the listed competitors, but that is not going to
happen.

I can't find any case law on this point (but at my advanced age, I suck
at research). Does anyone have any relevant experience with this
issue?

I appreciate your thoughts on this issue.

Thanks very much.

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

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.

Exclusives in retail context are tricky to do properly. You need to focus on a lot of things; make sure use clauses are tightly written; keep a running list of all current exclusives which govern in the center; require each new tenant to agree its use is expressly subject to and limited by that exclusives list attached to its lease and cause each new tenant to agree to be bound by and not violate those exclusives; and, in granting new exclusives, there has to be carve outs for existing tenants and their uses and permitted uses under their leases, as same may be assigned, sublet, extended, relocated or replaced; and often carveouts also for some outparcels or other phases of a center, and always carve outs for the larger tenants - majors, department stores, grocery stores and other anchors; then you need to push for strict limitation of remedies on breach if at all possible. ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Rick G. Emmanuel Sent: Tuesday, August 03, 2010 12:34 PM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Assignment, Subletting and Exclusive Use Provision Question I think a critical factor here is the use clause in lease 1. If lease 1 is prior in time to lease 2, and if the proposed assignment does not violate the use clause in lease 1, I think the landlord would have a real problem on his hands. My suggestion is that the lease 2 exclusive needs to make exception for the lease 1 use clause. Thanks, Rick Patrick G. Emmanuel, Jr., Esq. Emmanuel, Sheppard & Condon, P.A. 30 South Spring Street Pensacola, FL 32502 Telephone: (850) 433-6581 Facsimile: (850) 433-6162 CONFIDENTIALITY STATEMENT: This e-mail message and all attachments transmitted with it may contain legally privileged and confidential information intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any reading, dissemination, distribution, copying, or other use of this message or its attachments is strictly prohibited. If you have received this message in error, please notify the sender immediately by telephone (850-433-6581) or by electronic mail (rge@esclaw.com) and then delete this message and all copies and backups thereof. Thank you. ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeffrey Mazor Sent: Tuesday, August 03, 2010 10:46 AM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Assignment, Subletting and Exclusive Use Provision Question George: I agree with David. Also, you are probably well familiar with this, but maybe it will be useful (from Fernandez v. Vazquez, 397 So.2d 1171, 1173-74 (Fla. 3d DCA 1981) <https://web2.westlaw.com/find/default.wl?vc=0&ordoc=2011992142&rp=%2ffi nd%2fdefault.wl&DB=735&SerialNum=1981119298&FindType=Y&ReferencePosition Type=S&ReferencePosition=1173&AP=&rs=WLW10.06&ifm=NotSet&fn=_top&sv=Spli t&mt=Florida&utid=1&vr=2.0&pbc=81501C16> ). Underlines are mine: [3] <https://web2.westlaw.com/result/%09%09%09%09%09%09#F31981119298> <https://web2.westlaw.com/KCNotes/default.wl?utid=1&fn=_top&mt=Florida&p bc=AFFE46B4&vr=2.0&sv=Split&ifm=NotSet&locatestring=HD(003)%2cCL(H%2cO)% 2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rs=WLW10.06&service=Find&rlt =CLID_FQRLT212475391038&serialnum=1981119298&rp=%2fKCNotes%2fdefault.wl& n=1&rlti=1> [4] <https://web2.westlaw.com/result/%09%09%09%09%09%09#F41981119298> <https://web2.westlaw.com/KCNotes/default.wl?utid=1&fn=_top&mt=Florida&p bc=AFFE46B4&vr=2.0&sv=Split&ifm=NotSet&locatestring=HD(004)%2cCL(H%2cO)% 2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rs=WLW10.06&service=Find&rlt =CLID_FQRLT212475391038&serialnum=1981119298&rp=%2fKCNotes%2fdefault.wl& n=1&rlti=1> [5] <https://web2.westlaw.com/result/%09%09%09%09%09%09#F51981119298> <https://web2.westlaw.com/KCNotes/default.wl?utid=1&fn=_top&mt=Florida&p bc=AFFE46B4&vr=2.0&sv=Split&ifm=NotSet&locatestring=HD(005)%2cCL(H%2cO)% 2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rs=WLW10.06&service=Find&rlt =CLID_FQRLT212475391038&serialnum=1981119298&rp=%2fKCNotes%2fdefault.wl& n=1&rlti=1> Accordingly, we hold that a lessor may not arbitrarily refuse consent to an assignment of a commercial lease which provides, even without limiting language, that a lessee shall not assign or sublease the premises without the written consent of the lessor.[FN8] <https://web2.westlaw.com/result/%09%09%09%09%09%09#B00881981119298> A withholding of consent to assign a lease, which fails the tests for good faith and commercial reasonableness, constitutes a breach of the lease agreement. Whether a landlord breached the lease by acting unreasonably in withholding consent of a commercial tenant is to be determined by a jury according to the facts of that case. The following factors are among those which a jury may properly consider in applying the standards of good faith and commercial reasonableness: (a) financial responsibility of the proposed subtenant (b) the "identity" or "business character" of the subtenant, i. e., suitability for the particular building, (c) the need for alteration of the premises, (d) the legality of the proposed use, and (e) the nature of the occupancy, i. e., office, factory, clinic, etc.; See Popovic v. Florida Mechanical Contractors, supra, Whitman v. Pet Inc., supra, American Book Co. v. Yeshiva University, Development Foundation, Inc., 59 Misc.2d 31, 297 N.Y.S.2d 156 (1969) <https://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.06&serialnum=19 69126399&fn=_top&sv=Split&tc=-1&findtype=Y&ordoc=1981119298&mt=Florida&d b=602&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=AFFE46B4> ; Johnson v. Jaquith, supra. Denying consent solely on the basis of personal taste, convenience or sensibility or in order that the landlord may charge a higher rent than originally contracted for have been held arbitrary reasons failing the tests of good faith and reasonableness under commercial leases. Catalina Inc. v. Biscayne Northeast Corp., supra; Chanslor Western Oil & Development Co. v. Metropolitan Sanitary District, 131 Ill.App.2d 527, 266 N.E.2d 405 (1970) <https://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.06&serialnum=19 70124290&fn=_top&sv=Split&tc=-1&findtype=Y&ordoc=1981119298&mt=Florida&d b=578&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=AFFE46B4> , citing Broad and Branford Place Corp. v. J. J. Hockenjos Co., 132 N.J.L. 229, 39 A.2d 80, 82 (1944) <https://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.06&referencepos itiontype=S&serialnum=1944110374&fn=_top&sv=Split&referenceposition=82&f indtype=Y&tc=-1&ordoc=1981119298&mt=Florida&db=162&utid=1&vr=2.0&rp=%2ff ind%2fdefault.wl&pbc=AFFE46B4> . More recently cited in Speedway SuperAmerica, LLC <https://web2.westlaw.com/find/default.wl?returnto=BusinessNameReturnTo& rs=WLW10.06&ifm=NotSet&fn=_top&sv=Split&findtype=l&lvbp=T&docname=CIK(LE 10368674)&mt=Florida&db=BC-COMPANYSRBD&utid=1&vr=2.0&rp=%2ffind%2fdefaul t.wl&pbc=3F1E7F52> v. Tropic Enterprises, Inc <https://web2.westlaw.com/find/default.wl?returnto=BusinessNameReturnTo& rs=WLW10.06&ifm=NotSet&fn=_top&sv=Split&findtype=l&lvbp=T&docname=CIK(LE 00064224)&mt=Florida&db=BC-COMPANYSRBD&utid=1&vr=2.0&rp=%2ffind%2fdefaul t.wl&pbc=3F1E7F52> . 966 So.2d 1 Fla.App. 2 Dist.,2007. Jeffrey R. Mazor, Esq. J. R. Mazor & Associates, P.A. Presidential Circle Building 4000 Hollywood Blvd., Suite 265-s Hollywood, FL 33021 Phone: 954-962-3500 Fax: 954-962-3560 Email: Jmazor@Mazor.com From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of George Pincus Sent: Tuesday, August 03, 2010 10:42 AM To: 'RPPTL Landlord Tenant Committee' Subject: [RPPTL LandTen] Assignment, Subletting and Exclusive Use Provision Question Here are my facts: * Landlord enters into a lease with Tenant #1. The Assignment/Subletting clause says the typical "which consent shall not be unreasonably withheld" when the Landlord is asked by the Tenant to approve an assignment or sublease. There are no criteria or conditions specified as to what qualifies as Landlord being reasonable when it says "no" to a proposed assignment or sublease. * Three (3) years later and Landlord is now negotiating a lease with Tenant #2, who is asking that Landlord not lease other space in the building to Tenant #2's competitors, which will be listed on a schedule to the Lease. * Question: is it reasonable for Landlord to say "no" to Tenant #1 when Tenant #1 shows up with a request to sublet to one of Tenant #2's competitors on the list? Obviously, the definitive answer is to go back to Tenant #1 and try and amend Tenant #1's Lease to preemptively provide that it is not unreasonable for Landlord to withhold consent to a proposed assignment or sublease to one of the listed competitors, but that is not going to happen. I can't find any case law on this point (but at my advanced age, I suck at research). Does anyone have any relevant experience with this issue? I appreciate your thoughts on this issue. Thanks very much. 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 ________________________________ 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.

AJ

Arthur J. Menor

Tue, Aug 3, 2010 9:17 PM

I agree with David Weisman. I think it would be hard for a court to say that a landlord unreasonably withheld consent where to have granted consent would have put him in default under Tenant #2's Lease.

[http://www.shutts.com/shutts100.jpg]
Arthur J. Menor
Partner

Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401
Direct: (561) 650-8510 | Fax: (561) 822-5510
E-Mailmailto:AMenor@shutts.com | Biographyhttp://www.shutts.com/index.cfm/fa/attorney.bio/atty/8051073b-833e-444a-8b57-a6912a6d5435/Arthur_J_Menor.cfm/ | V-Cardhttp://www.shutts.com/index.cfm/fa/attorney.vcf/atty/8051073b-833e-444a-8b57-a6912a6d5435/Arthur_J_Menor.cfm/ | Websitehttp://www.shutts.com/

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of David Weisman
Sent: Tuesday, August 03, 2010 11:09 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Assignment, Subletting and Exclusive Use Provision Question

George:

I think that when an assignment request is made, it has to be reviewed with regard to exclusives in place at the time just as a proposal for a new tenant. If Landlord approved the assignment, it would violate the exclusive and it would be unreasonable to expect a Landlord to breach another contract in order to approve a proposed assignment.

The contrary answer would allow a competitor to circumvent the exclusive simply by acquiring an existing lease.

David Weisman
Board Certified Real Estate Lawyer
Greenspoon Marder, P.A.
Trade Center South, Suite 700
100 West Cypress Creek Road
Ft. Lauderdale, FL 33309
Phone 954-491-1120
Toll Free 888-491-1120
Direct Phone 954-343-6941
Direct Fax 954-343-6942

[cid:293111621@03082010-1369]

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of George Pincus
Sent: Tuesday, August 03, 2010 10:42 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Assignment, Subletting and Exclusive Use Provision Question

Here are my facts:

    Landlord enters into a lease with Tenant #1.  The Assignment/Subletting clause says the typical "which consent shall not be unreasonably withheld" when the Landlord is asked by the Tenant to approve an assignment or sublease.  There are no criteria or conditions specified as to what qualifies as Landlord being reasonable when it says "no" to a proposed assignment or sublease.

    Three (3) years later and Landlord is now negotiating a lease with Tenant #2, who is asking that Landlord not lease other space in the building to Tenant #2's competitors, which will be listed on a schedule to the Lease.

    Question:  is it reasonable for Landlord to say "no" to Tenant #1 when Tenant #1 shows up with a request to sublet to one of Tenant #2's competitors on the list?

Obviously, the definitive answer is to go back to Tenant #1 and try and amend Tenant #1's Lease to preemptively provide that it is not unreasonable for Landlord to withhold consent to a proposed assignment or sublease to one of the listed competitors, but that is not going to happen.

I can't find any case law on this point (but at my advanced age, I suck at research). Does anyone have any relevant experience with this issue?

I appreciate your thoughts on this issue.

Thanks very much.

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

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.

The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have
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Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it
cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

</pre>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. <pre>

I agree with David Weisman. I think it would be hard for a court to say that a landlord unreasonably withheld consent where to have granted consent would have put him in default under Tenant #2's Lease. [http://www.shutts.com/shutts100.jpg] Arthur J. Menor Partner ________________________________ Shutts & Bowen LLP 1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401 Direct: (561) 650-8510 | Fax: (561) 822-5510 E-Mail<mailto:AMenor@shutts.com> | Biography<http://www.shutts.com/index.cfm/fa/attorney.bio/atty/8051073b-833e-444a-8b57-a6912a6d5435/Arthur_J_Menor.cfm/> | V-Card<http://www.shutts.com/index.cfm/fa/attorney.vcf/atty/8051073b-833e-444a-8b57-a6912a6d5435/Arthur_J_Menor.cfm/> | Website<http://www.shutts.com/> ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of David Weisman Sent: Tuesday, August 03, 2010 11:09 AM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Assignment, Subletting and Exclusive Use Provision Question George: I think that when an assignment request is made, it has to be reviewed with regard to exclusives in place at the time just as a proposal for a new tenant. If Landlord approved the assignment, it would violate the exclusive and it would be unreasonable to expect a Landlord to breach another contract in order to approve a proposed assignment. The contrary answer would allow a competitor to circumvent the exclusive simply by acquiring an existing lease. David Weisman Board Certified Real Estate Lawyer Greenspoon Marder, P.A. Trade Center South, Suite 700 100 West Cypress Creek Road Ft. Lauderdale, FL 33309 Phone 954-491-1120 Toll Free 888-491-1120 Direct Phone 954-343-6941 Direct Fax 954-343-6942 [cid:293111621@03082010-1369] From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of George Pincus Sent: Tuesday, August 03, 2010 10:42 AM To: 'RPPTL Landlord Tenant Committee' Subject: [RPPTL LandTen] Assignment, Subletting and Exclusive Use Provision Question Here are my facts: * Landlord enters into a lease with Tenant #1. The Assignment/Subletting clause says the typical "which consent shall not be unreasonably withheld" when the Landlord is asked by the Tenant to approve an assignment or sublease. There are no criteria or conditions specified as to what qualifies as Landlord being reasonable when it says "no" to a proposed assignment or sublease. * Three (3) years later and Landlord is now negotiating a lease with Tenant #2, who is asking that Landlord not lease other space in the building to Tenant #2's competitors, which will be listed on a schedule to the Lease. * Question: is it reasonable for Landlord to say "no" to Tenant #1 when Tenant #1 shows up with a request to sublet to one of Tenant #2's competitors on the list? Obviously, the definitive answer is to go back to Tenant #1 and try and amend Tenant #1's Lease to preemptively provide that it is not unreasonable for Landlord to withhold consent to a proposed assignment or sublease to one of the listed competitors, but that is not going to happen. I can't find any case law on this point (but at my advanced age, I suck at research). Does anyone have any relevant experience with this issue? I appreciate your thoughts on this issue. Thanks very much. 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 ________________________________ 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. The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by reply e-mail. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. </pre>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. <pre>

AJ

Anthony J. Horky

Tue, Aug 3, 2010 11:23 PM

I agree that, generally, it would be hard for a court to find that the
landlord unreasonably withhold consent under lease #1 where to allow the
assignment would result in a default under the exclusive of lease #2.
However, there is a temporal issue here. The operative term is that
landlord is "negotiating" lease #2. If the landlord is aware that
tenant under lease #1 can sublet and the use under lease # 1 is broad
enough that it may overlap with the exclusive in lease #2, the landlord
is exposing itself to future liability. Since landlord is in the best
position to know the terms of lease # 1 and to negotiate the terms of
lease #2, and, therefore, in the best position to avoid the future
liability, the doctrine of avoidable consequences can result in landlord
being found liable. I would agree with Rick that the landlord needs to
negotiate the exclusive in lease #2 with an exception for lease #1 use
clause.

Regards,

Anthony J. Horky, Esq.

Mombach, Boyle & Hardin, P.A.

500 East Broward Boulevard

Suite 1950 Broward Financial Centre

Ft. Lauderdale, Florida 33394

Telephone: 954.467.2200 ext. 225

Facsimile: 954.467.2210

E-Mail: ahorky@mbhlawyer.com

Website: www.mbhlawyer.com

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discussed 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 sued 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
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From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Arthur J.
Menor
Sent: Tuesday, August 03, 2010 5:18 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Assignment, Subletting and Exclusive Use
Provision Question

I agree with David Weisman. I think it would be hard for a court to say
that a landlord unreasonably withheld consent where to have granted
consent would have put him in default under Tenant #2's Lease.

http://www.shutts.com/shutts100.jpg

Arthur J. Menor
Partner

Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL
33401
Direct: (561) 650-8510 | Fax: (561) 822-5510
E-Mail mailto:AMenor@shutts.com | Biography
<http://www.shutts.com/index.cfm/fa/attorney.bio/atty/8051073b-833e-444a
-8b57-a6912a6d5435/Arthur_J_Menor.cfm/> | V-Card
<http://www.shutts.com/index.cfm/fa/attorney.vcf/atty/8051073b-833e-444a
-8b57-a6912a6d5435/Arthur_J_Menor.cfm/> | Website
http://www.shutts.com/

From: landten-bounces@lists.flabarrpptl.org

[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of David
Weisman
Sent: Tuesday, August 03, 2010 11:09 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Assignment, Subletting and
Exclusive Use Provision Question

George:

 

I think that when an assignment request is made, it has to be

reviewed with regard to exclusives in place at the time just as a
proposal for a new tenant. If Landlord approved the assignment, it would
violate the exclusive and it would be unreasonable to expect a Landlord
to breach another contract in order to approve a proposed assignment.

The contrary answer would allow a competitor to circumvent the

exclusive simply by acquiring an existing lease.

David  Weisman

Board Certified Real Estate Lawyer

Greenspoon Marder, P.A.

Trade Center South, Suite 700

100 West Cypress Creek Road

Ft. Lauderdale, FL 33309

Phone 954-491-1120

Toll Free 888-491-1120

Direct Phone 954-343-6941

Direct Fax 954-343-6942

 

 

 

From: landten-bounces@lists.flabarrpptl.org

[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of George
Pincus
Sent: Tuesday, August 03, 2010 10:42 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Assignment, Subletting and Exclusive
Use Provision Question

Here are my facts:

 

*         Landlord enters into a lease with Tenant #1.  The

Assignment/Subletting clause says the typical "which consent shall not
be unreasonably withheld" when the Landlord is asked by the Tenant to
approve an assignment or sublease. There are no criteria or conditions
specified as to what qualifies as Landlord being reasonable when it says
"no" to a proposed assignment or sublease.

*         Three (3) years later and Landlord is now negotiating

a lease with Tenant #2, who is asking that Landlord not lease other
space in the building to Tenant #2's competitors, which will be listed
on a schedule to the Lease.

*         Question:  is it reasonable for Landlord to say "no"

to Tenant #1 when Tenant #1 shows up with a request to sublet to one of
Tenant #2's competitors on the list?

Obviously, the definitive answer is to go back to Tenant #1 and

try and amend Tenant #1's Lease to preemptively provide that it is not
unreasonable for Landlord to withhold consent to a proposed assignment
or sublease to one of the listed competitors, but that is not going to
happen.

I can't find any case law on this point (but at my advanced age,

I suck at research). Does anyone have any relevant experience with
this issue?

I appreciate your thoughts on this issue. 

 

Thanks very much. 

 

 

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

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I agree that, generally, it would be hard for a court to find that the landlord unreasonably withhold consent under lease #1 where to allow the assignment would result in a default under the exclusive of lease #2. However, there is a temporal issue here. The operative term is that landlord is "negotiating" lease #2. If the landlord is aware that tenant under lease #1 can sublet and the use under lease # 1 is broad enough that it may overlap with the exclusive in lease #2, the landlord is exposing itself to future liability. Since landlord is in the best position to know the terms of lease # 1 and to negotiate the terms of lease #2, and, therefore, in the best position to avoid the future liability, the doctrine of avoidable consequences can result in landlord being found liable. I would agree with Rick that the landlord needs to negotiate the exclusive in lease #2 with an exception for lease #1 use clause. Regards, Anthony J. Horky, Esq. Mombach, Boyle & Hardin, P.A. 500 East Broward Boulevard Suite 1950 Broward Financial Centre Ft. Lauderdale, Florida 33394 Telephone: 954.467.2200 ext. 225 Facsimile: 954.467.2210 E-Mail: ahorky@mbhlawyer.com Website: www.mbhlawyer.com CONFIDENTIALITY NOTICE: Unless otherwise stated, 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 transmission in error, please notify the sender by email reply immediately. Thank you. Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the proceeding message contains advice relating to a Federal tax issue, unless expressly stated otherwise, the advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer, for the purpose of avoiding Federal tax penalties, and was not written to support the promotion or marketing of any transaction or matter discussed 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 sued 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. ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Arthur J. Menor Sent: Tuesday, August 03, 2010 5:18 PM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Assignment, Subletting and Exclusive Use Provision Question I agree with David Weisman. I think it would be hard for a court to say that a landlord unreasonably withheld consent where to have granted consent would have put him in default under Tenant #2's Lease. <http://www.shutts.com/shutts100.jpg> Arthur J. Menor Partner ________________________________ Shutts & Bowen LLP 1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401 Direct: (561) 650-8510 | Fax: (561) 822-5510 E-Mail <mailto:AMenor@shutts.com> | Biography <http://www.shutts.com/index.cfm/fa/attorney.bio/atty/8051073b-833e-444a -8b57-a6912a6d5435/Arthur_J_Menor.cfm/> | V-Card <http://www.shutts.com/index.cfm/fa/attorney.vcf/atty/8051073b-833e-444a -8b57-a6912a6d5435/Arthur_J_Menor.cfm/> | Website <http://www.shutts.com/> ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of David Weisman Sent: Tuesday, August 03, 2010 11:09 AM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Assignment, Subletting and Exclusive Use Provision Question George: I think that when an assignment request is made, it has to be reviewed with regard to exclusives in place at the time just as a proposal for a new tenant. If Landlord approved the assignment, it would violate the exclusive and it would be unreasonable to expect a Landlord to breach another contract in order to approve a proposed assignment. The contrary answer would allow a competitor to circumvent the exclusive simply by acquiring an existing lease. David Weisman Board Certified Real Estate Lawyer Greenspoon Marder, P.A. Trade Center South, Suite 700 100 West Cypress Creek Road Ft. Lauderdale, FL 33309 Phone 954-491-1120 Toll Free 888-491-1120 Direct Phone 954-343-6941 Direct Fax 954-343-6942 From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of George Pincus Sent: Tuesday, August 03, 2010 10:42 AM To: 'RPPTL Landlord Tenant Committee' Subject: [RPPTL LandTen] Assignment, Subletting and Exclusive Use Provision Question Here are my facts: * Landlord enters into a lease with Tenant #1. The Assignment/Subletting clause says the typical "which consent shall not be unreasonably withheld" when the Landlord is asked by the Tenant to approve an assignment or sublease. There are no criteria or conditions specified as to what qualifies as Landlord being reasonable when it says "no" to a proposed assignment or sublease. * Three (3) years later and Landlord is now negotiating a lease with Tenant #2, who is asking that Landlord not lease other space in the building to Tenant #2's competitors, which will be listed on a schedule to the Lease. * Question: is it reasonable for Landlord to say "no" to Tenant #1 when Tenant #1 shows up with a request to sublet to one of Tenant #2's competitors on the list? Obviously, the definitive answer is to go back to Tenant #1 and try and amend Tenant #1's Lease to preemptively provide that it is not unreasonable for Landlord to withhold consent to a proposed assignment or sublease to one of the listed competitors, but that is not going to happen. I can't find any case law on this point (but at my advanced age, I suck at research). Does anyone have any relevant experience with this issue? I appreciate your thoughts on this issue. Thanks very much. 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 ________________________________ 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. The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. 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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. 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[RPPTL LandTen] Litigation Question - Waiver of Counterclaims