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Law Offices of Scott A. Frank

Wed, May 11, 2011 8:35 PM

Question for my esteemed colleagues:

Tenant/client presented me with their existing lease. Tenant believes it is
guaranteed, but not sure.

There is no separate guaranty. The Lease itself does not include any
Guaranty language or clause. The only indication of a guaranty is that
there is a second signature page to the Lease, with a title over a signature
titled "Guarantor". The tenant's principal did sign this line in his
individual capacity.

So is this Lease personally guaranteed? Part of me says yes (as the
individual signed the Lease in his individual capacity), part of me says no
(no guaranty provisions, and the individual is not named as tenant in the
Lease).

However, most of me says "?????", so I am throwing it out there to the group
for your opinions.

Thanks in advance.

Please note our new address.

Scott A. Frank

Attorney at Law

LAW OFFICES OF SCOTT A. FRANK, P.A.

7781 NW Beacon Square Boulevard, Suite 102

Boca Raton, FL 33487

p: (561) 372-7860

f: (561) 423-5721

mailto:sfrank@saflaw.com sfrank@saflaw.com

http://www.saflaw.com/ www.saflaw.com

If you believe that you have received this message in error, please notify
the sender by reply transmission and delete the message without copying or
disclosing it.

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.

Question for my esteemed colleagues: Tenant/client presented me with their existing lease. Tenant believes it is guaranteed, but not sure. There is no separate guaranty. The Lease itself does not include any Guaranty language or clause. The only indication of a guaranty is that there is a second signature page to the Lease, with a title over a signature titled "Guarantor". The tenant's principal did sign this line in his individual capacity. So is this Lease personally guaranteed? Part of me says yes (as the individual signed the Lease in his individual capacity), part of me says no (no guaranty provisions, and the individual is not named as tenant in the Lease). However, most of me says "?????", so I am throwing it out there to the group for your opinions. Thanks in advance. Please note our new address. Scott A. Frank Attorney at Law LAW OFFICES OF SCOTT A. FRANK, P.A. 7781 NW Beacon Square Boulevard, Suite 102 Boca Raton, FL 33487 p: (561) 372-7860 f: (561) 423-5721 <mailto:sfrank@saflaw.com> sfrank@saflaw.com <http://www.saflaw.com/> www.saflaw.com If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. 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.

DW

David Weisman

Wed, May 11, 2011 9:42 PM

It would seem that something has been guaranteed. If I were the Landlord, I would argue to a court: Why would the principal of the Tenant sign a second time with the word guaranty there if he did not intend to guaranty something?

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.jpg@01CC1002.C48066B0]

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Law Offices of Scott A. Frank
Sent: Wednesday, May 11, 2011 4:36 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Lease Guaranty Question

Question for my esteemed colleagues:

Tenant/client presented me with their existing lease. Tenant believes it is guaranteed, but not sure.

There is no separate guaranty. The Lease itself does not include any Guaranty language or clause. The only indication of a guaranty is that there is a second signature page to the Lease, with a title over a signature titled "Guarantor". The tenant's principal did sign this line in his individual capacity.

So is this Lease personally guaranteed? Part of me says yes (as the individual signed the Lease in his individual capacity), part of me says no (no guaranty provisions, and the individual is not named as tenant in the Lease).

However, most of me says "?????", so I am throwing it out there to the group for your opinions.

Thanks in advance.

Please note our new address.
Scott A. Frank
Attorney at Law
LAW OFFICES OF SCOTT A. FRANK, P.A.
7781 NW Beacon Square Boulevard, Suite 102
Boca Raton, FL 33487
p: (561) 372-7860
f: (561) 423-5721
sfrank@saflaw.com mailto:sfrank@saflaw.com
www.saflaw.com http://www.saflaw.com/

If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it.

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.

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.

It would seem that something has been guaranteed. If I were the Landlord, I would argue to a court: Why would the principal of the Tenant sign a second time with the word guaranty there if he did not intend to guaranty something? 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.jpg@01CC1002.C48066B0] From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Law Offices of Scott A. Frank Sent: Wednesday, May 11, 2011 4:36 PM To: RPPTL Landlord Tenant Committee Subject: [RPPTL LandTen] Lease Guaranty Question Question for my esteemed colleagues: Tenant/client presented me with their existing lease. Tenant believes it is guaranteed, but not sure. There is no separate guaranty. The Lease itself does not include any Guaranty language or clause. The only indication of a guaranty is that there is a second signature page to the Lease, with a title over a signature titled "Guarantor". The tenant's principal did sign this line in his individual capacity. So is this Lease personally guaranteed? Part of me says yes (as the individual signed the Lease in his individual capacity), part of me says no (no guaranty provisions, and the individual is not named as tenant in the Lease). However, most of me says "?????", so I am throwing it out there to the group for your opinions. Thanks in advance. Please note our new address. Scott A. Frank Attorney at Law LAW OFFICES OF SCOTT A. FRANK, P.A. 7781 NW Beacon Square Boulevard, Suite 102 Boca Raton, FL 33487 p: (561) 372-7860 f: (561) 423-5721 sfrank@saflaw.com<mailto:sfrank@saflaw.com> www.saflaw.com<http://www.saflaw.com/> If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. 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. 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.

AJ

Anthony J. Horky

Wed, May 11, 2011 9:56 PM

To stand, I believe the Guaranty is going to have to be supported by consideration.

Attached is a 2001 article from the Bar Journal that might provide some insight.

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 mailto:ahorky@mbhlawyer.com
Website: www.mbhlawyer.com http://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 in error, please notify the sender by email reply. Thank you.

Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding 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 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.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of David Weisman
Sent: Wednesday, May 11, 2011 5:42 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Lease Guaranty Question

It would seem that something has been guaranteed. If I were the Landlord, I would argue to a court: Why would the principal of the Tenant sign a second time with the word guaranty there if he did not intend to guaranty something?

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.jpg@01CC1004.B7EA9720]

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Law Offices of Scott A. Frank
Sent: Wednesday, May 11, 2011 4:36 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Lease Guaranty Question

Question for my esteemed colleagues:

Tenant/client presented me with their existing lease. Tenant believes it is guaranteed, but not sure.

There is no separate guaranty. The Lease itself does not include any Guaranty language or clause. The only indication of a guaranty is that there is a second signature page to the Lease, with a title over a signature titled "Guarantor". The tenant's principal did sign this line in his individual capacity.

So is this Lease personally guaranteed? Part of me says yes (as the individual signed the Lease in his individual capacity), part of me says no (no guaranty provisions, and the individual is not named as tenant in the Lease).

However, most of me says "?????", so I am throwing it out there to the group for your opinions.

Thanks in advance.

Please note our new address.
Scott A. Frank
Attorney at Law
LAW OFFICES OF SCOTT A. FRANK, P.A.
7781 NW Beacon Square Boulevard, Suite 102
Boca Raton, FL 33487
p: (561) 372-7860
f: (561) 423-5721
sfrank@saflaw.com mailto:sfrank@saflaw.com
www.saflaw.com http://www.saflaw.com/

If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it.

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.

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.

To stand, I believe the Guaranty is going to have to be supported by consideration. Attached is a 2001 article from the Bar Journal that might provide some insight. 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<mailto:ahorky@mbhlawyer.com> Website: www.mbhlawyer.com<http://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 in error, please notify the sender by email reply. Thank you. Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding 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 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. ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of David Weisman Sent: Wednesday, May 11, 2011 5:42 PM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Lease Guaranty Question It would seem that something has been guaranteed. If I were the Landlord, I would argue to a court: Why would the principal of the Tenant sign a second time with the word guaranty there if he did not intend to guaranty something? 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.jpg@01CC1004.B7EA9720] From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Law Offices of Scott A. Frank Sent: Wednesday, May 11, 2011 4:36 PM To: RPPTL Landlord Tenant Committee Subject: [RPPTL LandTen] Lease Guaranty Question Question for my esteemed colleagues: Tenant/client presented me with their existing lease. Tenant believes it is guaranteed, but not sure. There is no separate guaranty. The Lease itself does not include any Guaranty language or clause. The only indication of a guaranty is that there is a second signature page to the Lease, with a title over a signature titled "Guarantor". The tenant's principal did sign this line in his individual capacity. So is this Lease personally guaranteed? Part of me says yes (as the individual signed the Lease in his individual capacity), part of me says no (no guaranty provisions, and the individual is not named as tenant in the Lease). However, most of me says "?????", so I am throwing it out there to the group for your opinions. Thanks in advance. Please note our new address. Scott A. Frank Attorney at Law LAW OFFICES OF SCOTT A. FRANK, P.A. 7781 NW Beacon Square Boulevard, Suite 102 Boca Raton, FL 33487 p: (561) 372-7860 f: (561) 423-5721 sfrank@saflaw.com<mailto:sfrank@saflaw.com> www.saflaw.com<http://www.saflaw.com/> If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. 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. 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.

landten@lists.flabarrpptl.org

[RPPTL LandTen] Lease Guaranty Question