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Neil B. Shoter

Thu, Feb 9, 2012 2:37 PM

While I have not researched this, the question of whether accelerated rents “must” be discounted to present value if such is not stated in the lease arises from time to time, and I understand that judges do discount the amount to PV – BUT, is the discounting accelerated rents to PV a “mandatory” or uniform practice across courts in Florida or only followed in certain jurisdictions??

This is useful in cases where a landlord refuses to allow mention in the lease of discounting to PV.

[cid:image001.jpg@01CCE70E.6BBC4240]

Neil B. Shoter
Partner / LEED Accredited Professional

Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401
Direct: (561) 650-8535 | Fax: (561) 822-5525
E-Mailmailto:NShoter@shutts.com | Biographyhttp://www.shutts.com/attorneys-Neil-Shoter.html | V-Cardhttp://www.shutts.com/vcard-181.vcf | Websitehttp://www.shutts.com

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Wednesday, February 08, 2012 5:43 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date

I think the court sets what it believes to be an appropriate present value as applied to each case; I’m not aware of a case that gives a certain percentage.
As to question two, the answer is yes. I’ve filed partial satisfactions of the judgment once payments were made
Good luck!
Manny

[http://www.richmangreer.com/emailsig/logo.gif]

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
www.RichmanGreer.com http://www.RichmanGreer.com

[http://www.richmangreer.com/emailsig/meritas.gif]

To ensure compliance with requirements imposed by the IRS, we inform
you that any U.S. federal tax advice contained in this communication (including
any attachments) is not intended or written to be used, and cannot be used, for
the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii)
promoting, marketing or recommending to another party any transaction or matter
addressed herein.

This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not
landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in
reliance on the contents of this information is strictly prohibited. E-mail
transmission cannot be guarranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which
arise as a result of e-mail transmission. If verification is required please request a hard-copy version.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeff Mazor
Sent: Wednesday, February 08, 2012 5:29 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date

I’ve researched this to death and haven’t found a direct answer. Maybe you can help?

Question One: If not provided for in the Lease, what discount rate do you use to calculate the Present Value of sums that come due under a lease?

Question Two: IF we sue for damages under an “Original Lease”, we are entitled to a judgment equal to:

(i) past due rent, repair expense and other charges; plus,

(ii) landlord's attorneys' fees and costs; plus,

(iii) “accelerated balance” due under the lease, less a credit for "the amount received upon reletting the premises", Boulevard Shoppes, A.B. v. Pro-1 Realty, Inc.605 So.2d 1317 (Fla., 4th DCA, 1992), reduced to present value.

Thanks,

Jeff Mazor

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

</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>

While I have not researched this, the question of whether accelerated rents “must” be discounted to present value if such is not stated in the lease arises from time to time, and I understand that judges do discount the amount to PV – BUT, is the discounting accelerated rents to PV a “mandatory” or uniform practice across courts in Florida or only followed in certain jurisdictions?? This is useful in cases where a landlord refuses to allow mention in the lease of discounting to PV. [cid:image001.jpg@01CCE70E.6BBC4240] Neil B. Shoter Partner / LEED Accredited Professional ________________________________ Shutts & Bowen LLP 1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401 Direct: (561) 650-8535 | Fax: (561) 822-5525 E-Mail<mailto:NShoter@shutts.com> | Biography<http://www.shutts.com/attorneys-Neil-Shoter.html> | V-Card<http://www.shutts.com/vcard-181.vcf> | Website<http://www.shutts.com> From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach Sent: Wednesday, February 08, 2012 5:43 PM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date I think the court sets what it believes to be an appropriate present value as applied to each case; I’m not aware of a case that gives a certain percentage. As to question two, the answer is yes. I’ve filed partial satisfactions of the judgment once payments were made Good luck! Manny ________________________________ [http://www.richmangreer.com/emailsig/logo.gif] Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar Richman Greer P.A. One Clearlake Centre Suite 1504 250 Australian Avenue South West Palm Beach, Florida 33401 Office: 561.803.3500 Fax: 561.820.1608 Direct: 561.803.3501 Email: MFarach@richmangreer.com www.RichmanGreer.com<http://www.RichmanGreer.com> [http://www.richmangreer.com/emailsig/meritas.gif] To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited. E-mail transmission cannot be guarranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version. ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeff Mazor Sent: Wednesday, February 08, 2012 5:29 PM To: 'RPPTL Landlord Tenant Committee' Subject: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date I’ve researched this to death and haven’t found a direct answer. Maybe you can help? Question One: If not provided for in the Lease, what discount rate do you use to calculate the Present Value of sums that come due under a lease? Question Two: IF we sue for damages under an “Original Lease”, we are entitled to a judgment equal to: (i) past due rent, repair expense and other charges; plus, (ii) landlord's attorneys' fees and costs; plus, (iii) “accelerated balance” due under the lease, less a credit for "the amount received upon reletting the premises", Boulevard Shoppes, A.B. v. Pro-1 Realty, Inc.605 So.2d 1317 (Fla., 4th DCA, 1992), reduced to present value. Thanks, Jeff Mazor 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> </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>

MF

Manuel Farach

Thu, Feb 9, 2012 2:55 PM

Reduction of future damages to present value is required under the law for future damages, but if neither the judge nor opposing counsel raise it as an issue at Hetherington trial level, I believe they are waived

Sent from my iPad

On Feb 9, 2012, at 9:40 AM, "Neil B. Shoter" <NShoter@shutts.com mailto:NShoter@shutts.com> wrote:

While I have not researched this, the question of whether accelerated rents “must” be discounted to present value if such is not stated in the lease arises from time to time, and I understand that judges do discount the amount to PV – BUT, is the discounting accelerated rents to PV a “mandatory” or uniform practice across courts in Florida or only followed in certain jurisdictions??

This is useful in cases where a landlord refuses to allow mention in the lease of discounting to PV.

<image001.jpg>

Neil B. Shoter
Partner / LEED Accredited Professional

Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401
Direct: (561) 650-8535 | Fax: (561) 822-5525
E-Mailmailto:NShoter@shutts.com | Biographyhttp://www.shutts.com/attorneys-Neil-Shoter.html | V-Cardhttp://www.shutts.com/vcard-181.vcf | Websitehttp://www.shutts.com

[http://www.richmangreer.com/emailsig/logo.gif]

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
www.RichmanGreer.com http://www.RichmanGreer.com

[http://www.richmangreer.com/emailsig/meritas.gif]

To ensure compliance with requirements imposed by the IRS, we inform
you that any U.S. federal tax advice contained in this communication (including
any attachments) is not intended or written to be used, and cannot be used, for
the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii)
promoting, marketing or recommending to another party any transaction or matter
addressed herein.

This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not
landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in
reliance on the contents of this information is strictly prohibited. E-mail
transmission cannot be guarranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which
arise as a result of e-mail transmission. If verification is required please request a hard-copy version.

From: landten-bounces@lists.flabarrpptl.org mailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Wednesday, February 08, 2012 5:43 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date

I think the court sets what it believes to be an appropriate present value as applied to each case; I’m not aware of a case that gives a certain percentage.
As to question two, the answer is yes. I’ve filed partial satisfactions of the judgment once payments were made
Good luck!
Manny

[http://www.richmangreer.com/emailsig/logo.gif]

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com mailto:MFarach@richmangreer.com
www.RichmanGreer.com http://www.RichmanGreer.com

[http://www.richmangreer.com/emailsig/meritas.gif]

To ensure compliance with requirements imposed by the IRS, we inform
you that any U.S. federal tax advice contained in this communication (including
any attachments) is not intended or written to be used, and cannot be used, for
the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii)
promoting, marketing or recommending to another party any transaction or matter
addressed herein.

This message contains confidential information and is intended for landten@lists.flabarrpptl.org mailto:landten@lists.flabarrpptl.org. If you are not
landten@lists.flabarrpptl.org mailto:landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in
reliance on the contents of this information is strictly prohibited. E-mail
transmission cannot be guarranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com mailto:MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which
arise as a result of e-mail transmission. If verification is required please request a hard-copy version.

From: landten-bounces@lists.flabarrpptl.org mailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeff Mazor
Sent: Wednesday, February 08, 2012 5:29 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date

I’ve researched this to death and haven’t found a direct answer. Maybe you can help?

Question One: If not provided for in the Lease, what discount rate do you use to calculate the Present Value of sums that come due under a lease?

Question Two: IF we sue for damages under an “Original Lease”, we are entitled to a judgment equal to:

(i) past due rent, repair expense and other charges; plus,

(ii) landlord's attorneys' fees and costs; plus,

(iii) “accelerated balance” due under the lease, less a credit for "the amount received upon reletting the premises", Boulevard Shoppes, A.B. v. Pro-1 Realty, Inc.605 So.2d 1317 (Fla., 4th DCA, 1992), reduced to present value.

Thanks,

Jeff Mazor

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

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.

landten mailing list
landten@lists.flabarrpptl.org mailto:landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten

Reduction of future damages to present value is required under the law for future damages, but if neither the judge nor opposing counsel raise it as an issue at Hetherington trial level, I believe they are waived Sent from my iPad On Feb 9, 2012, at 9:40 AM, "Neil B. Shoter" <NShoter@shutts.com<mailto:NShoter@shutts.com>> wrote: While I have not researched this, the question of whether accelerated rents “must” be discounted to present value if such is not stated in the lease arises from time to time, and I understand that judges do discount the amount to PV – BUT, is the discounting accelerated rents to PV a “mandatory” or uniform practice across courts in Florida or only followed in certain jurisdictions?? This is useful in cases where a landlord refuses to allow mention in the lease of discounting to PV. <image001.jpg> Neil B. Shoter Partner / LEED Accredited Professional ________________________________ Shutts & Bowen LLP 1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401 Direct: (561) 650-8535 | Fax: (561) 822-5525 E-Mail<mailto:NShoter@shutts.com> | Biography<http://www.shutts.com/attorneys-Neil-Shoter.html> | V-Card<http://www.shutts.com/vcard-181.vcf> | Website<http://www.shutts.com> ________________________________ [http://www.richmangreer.com/emailsig/logo.gif] Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar Richman Greer P.A. One Clearlake Centre Suite 1504 250 Australian Avenue South West Palm Beach, Florida 33401 Office: 561.803.3500 Fax: 561.820.1608 Direct: 561.803.3501 Email: MFarach@richmangreer.com www.RichmanGreer.com<http://www.RichmanGreer.com> [http://www.richmangreer.com/emailsig/meritas.gif] To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited. E-mail transmission cannot be guarranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version. ________________________________ From: landten-bounces@lists.flabarrpptl.org<mailto:landten-bounces@lists.flabarrpptl.org> [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach Sent: Wednesday, February 08, 2012 5:43 PM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date I think the court sets what it believes to be an appropriate present value as applied to each case; I’m not aware of a case that gives a certain percentage. As to question two, the answer is yes. I’ve filed partial satisfactions of the judgment once payments were made Good luck! Manny ________________________________ [http://www.richmangreer.com/emailsig/logo.gif] Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar Richman Greer P.A. One Clearlake Centre Suite 1504 250 Australian Avenue South West Palm Beach, Florida 33401 Office: 561.803.3500 Fax: 561.820.1608 Direct: 561.803.3501 Email: MFarach@richmangreer.com<mailto:MFarach@richmangreer.com> www.RichmanGreer.com<http://www.RichmanGreer.com> [http://www.richmangreer.com/emailsig/meritas.gif] To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. This message contains confidential information and is intended for landten@lists.flabarrpptl.org<mailto:landten@lists.flabarrpptl.org>. If you are not landten@lists.flabarrpptl.org<mailto:landten@lists.flabarrpptl.org> you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited. E-mail transmission cannot be guarranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com<mailto:MFarach@richmangreer.com>) therefore does not accept liability for any errors or omissions in the contents of this message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version. ________________________________ From: landten-bounces@lists.flabarrpptl.org<mailto:landten-bounces@lists.flabarrpptl.org> [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeff Mazor Sent: Wednesday, February 08, 2012 5:29 PM To: 'RPPTL Landlord Tenant Committee' Subject: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date I’ve researched this to death and haven’t found a direct answer. Maybe you can help? Question One: If not provided for in the Lease, what discount rate do you use to calculate the Present Value of sums that come due under a lease? Question Two: IF we sue for damages under an “Original Lease”, we are entitled to a judgment equal to: (i) past due rent, repair expense and other charges; plus, (ii) landlord's attorneys' fees and costs; plus, (iii) “accelerated balance” due under the lease, less a credit for "the amount received upon reletting the premises", Boulevard Shoppes, A.B. v. Pro-1 Realty, Inc.605 So.2d 1317 (Fla., 4th DCA, 1992), reduced to present value. Thanks, Jeff Mazor 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> 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. _______________________________________________ landten mailing list landten@lists.flabarrpptl.org<mailto:landten@lists.flabarrpptl.org> http://mailman.fsr.com/mailman/listinfo/landten

AJ

Anthony J. Horky

Thu, Feb 9, 2012 3:16 PM

Recovery of accelerated rent is recovery of future economic losses. I do not have a Florida Supreme Court case directly on point, but I have seen a number of DCA opinions stating that recovery of accelerated rent must be reduced to present day value. See Vibrant Video, Inc. v. Dixie Pointe Associates, 567 So.2d 1003 (Fla. 3d DCA 1990); NEP Int’l, Inc. v. Falls, 629 So.2d 1019 (Fla. 4th DCA 1993); Florida Standard Jury Instruction 501.7. See, e.g. Braddock v. Seaboard Air Line R.R., 80 So.2d 662, 668 (Fla. 1955)(“…present compensation of future pain is merely one of the subjective elements of the problem, and is not a process of mathematical calculation of preset value, such as must be applied to periodic future pecuniary losses); Quintero-Chadid Corp v, Gersten, 582 So.2d 685,689 (Fla. 3d DCA 1991)(court noted that Vibrant Video held that a landlord’s future monetary losses had to be reduced to present value).

Regards,

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

301 Yamato Road, Suite 1240

Boca Raton, Florida 33431

Telephone: (561) 226-4628

Facsimile: (561) 994-6693

Website: http://www.horkylaw.com www.horkylaw.com

This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: mailto:ahorky@horkylaw.com ahorky@horkylaw.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Neil B. Shoter
Sent: Thursday, February 09, 2012 9:37 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date

While I have not researched this, the question of whether accelerated rents “must” be discounted to present value if such is not stated in the lease arises from time to time, and I understand that judges do discount the amount to PV – BUT, is the discounting accelerated rents to PV a “mandatory” or uniform practice across courts in Florida or only followed in certain jurisdictions??

This is useful in cases where a landlord refuses to allow mention in the lease of discounting to PV.

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

Neil B. Shoter
Partner / LEED Accredited Professional

Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401
Direct: (561) 650-8535 | Fax: (561) 822-5525
mailto:NShoter@shutts.com E-Mail | http://www.shutts.com/attorneys-Neil-Shoter.html Biography | http://www.shutts.com/vcard-181.vcf V-Card | http://www.shutts.com Website

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Wednesday, February 08, 2012 5:43 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date

I think the court sets what it believes to be an appropriate present value as applied to each case; I’m not aware of a case that gives a certain percentage.

As to question two, the answer is yes. I’ve filed partial satisfactions of the judgment once payments were made

Good luck!

Manny

Image removed by sender.

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
www.RichmanGreer.com

Image removed by sender.

To ensure compliance with requirements imposed by the IRS, we inform
you that any U.S. federal tax advice contained in this communication (including
any attachments) is not intended or written to be used, and cannot be used, for
the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii)
promoting, marketing or recommending to another party any transaction or matter
addressed herein.

This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not
landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in
reliance on the contents of this information is strictly prohibited. E-mail
transmission cannot be guarranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which
arise as a result of e-mail transmission. If verification is required please request a hard-copy version.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeff Mazor
Sent: Wednesday, February 08, 2012 5:29 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date

I’ve researched this to death and haven’t found a direct answer. Maybe you can help?

Question One: If not provided for in the Lease, what discount rate do you use to calculate the Present Value of sums that come due under a lease?

Question Two: IF we sue for damages under an “Original Lease”, we are entitled to a judgment equal to:

(i) past due rent, repair expense and other charges; plus,

(ii) landlord's attorneys' fees and costs; plus,

(iii) “accelerated balance” due under the lease, less a credit for "the amount received upon reletting the premises", Boulevard Shoppes, A.B. v. Pro-1 Realty, Inc.605 So.2d 1317 (Fla., 4th DCA, 1992), reduced to present value.

Thanks,

Jeff Mazor

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

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.

Recovery of accelerated rent is recovery of future economic losses. I do not have a Florida Supreme Court case directly on point, but I have seen a number of DCA opinions stating that recovery of accelerated rent must be reduced to present day value. See Vibrant Video, Inc. v. Dixie Pointe Associates, 567 So.2d 1003 (Fla. 3d DCA 1990); NEP Int’l, Inc. v. Falls, 629 So.2d 1019 (Fla. 4th DCA 1993); Florida Standard Jury Instruction 501.7. See, e.g. Braddock v. Seaboard Air Line R.R., 80 So.2d 662, 668 (Fla. 1955)(“…present compensation of future pain is merely one of the subjective elements of the problem, and is not a process of mathematical calculation of preset value, such as must be applied to periodic future pecuniary losses); Quintero-Chadid Corp v, Gersten, 582 So.2d 685,689 (Fla. 3d DCA 1991)(court noted that Vibrant Video held that a landlord’s future monetary losses had to be reduced to present value). Regards, Anthony J. Horky, Esquire Anthony J. Horky, P.A. 301 Yamato Road, Suite 1240 Boca Raton, Florida 33431 Telephone: (561) 226-4628 Facsimile: (561) 994-6693 Website: <http://www.horkylaw.com> www.horkylaw.com This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: <mailto:ahorky@horkylaw.com> ahorky@horkylaw.com. ------------------------------------------------------- Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Neil B. Shoter Sent: Thursday, February 09, 2012 9:37 AM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date While I have not researched this, the question of whether accelerated rents “must” be discounted to present value if such is not stated in the lease arises from time to time, and I understand that judges do discount the amount to PV – BUT, is the discounting accelerated rents to PV a “mandatory” or uniform practice across courts in Florida or only followed in certain jurisdictions?? This is useful in cases where a landlord refuses to allow mention in the lease of discounting to PV. http://www.shutts.com/shutts100.jpg Neil B. Shoter Partner / LEED Accredited Professional _____ Shutts & Bowen LLP 1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401 Direct: (561) 650-8535 | Fax: (561) 822-5525 <mailto:NShoter@shutts.com> E-Mail | <http://www.shutts.com/attorneys-Neil-Shoter.html> Biography | <http://www.shutts.com/vcard-181.vcf> V-Card | <http://www.shutts.com> Website From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach Sent: Wednesday, February 08, 2012 5:43 PM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date I think the court sets what it believes to be an appropriate present value as applied to each case; I’m not aware of a case that gives a certain percentage. As to question two, the answer is yes. I’ve filed partial satisfactions of the judgment once payments were made Good luck! Manny _____ Image removed by sender. Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar Richman Greer P.A. One Clearlake Centre Suite 1504 250 Australian Avenue South West Palm Beach, Florida 33401 Office: 561.803.3500 Fax: 561.820.1608 Direct: 561.803.3501 Email: MFarach@richmangreer.com www.RichmanGreer.com Image removed by sender. To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited. E-mail transmission cannot be guarranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version. _____ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeff Mazor Sent: Wednesday, February 08, 2012 5:29 PM To: 'RPPTL Landlord Tenant Committee' Subject: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date I’ve researched this to death and haven’t found a direct answer. Maybe you can help? Question One: If not provided for in the Lease, what discount rate do you use to calculate the Present Value of sums that come due under a lease? Question Two: IF we sue for damages under an “Original Lease”, we are entitled to a judgment equal to: (i) past due rent, repair expense and other charges; plus, (ii) landlord's attorneys' fees and costs; plus, (iii) “accelerated balance” due under the lease, less a credit for "the amount received upon reletting the premises", Boulevard Shoppes, A.B. v. Pro-1 Realty, Inc.605 So.2d 1317 (Fla., 4th DCA, 1992), reduced to present value. Thanks, Jeff Mazor 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 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.

NB

Neil B. Shoter

Thu, Feb 9, 2012 3:22 PM

Thanks Anthony. This has been instructive.

[cid:image001.jpg@01CCE714.A9177230]

Neil B. Shoter
Partner / LEED Accredited Professional

Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401
Direct: (561) 650-8535 | Fax: (561) 822-5525
E-Mailmailto:NShoter@shutts.com | Biographyhttp://www.shutts.com/attorneys-Neil-Shoter.html | V-Cardhttp://www.shutts.com/vcard-181.vcf | Websitehttp://www.shutts.com

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Thursday, February 09, 2012 10:16 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date

Recovery of accelerated rent is recovery of future economic losses. I do not have a Florida Supreme Court case directly on point, but I have seen a number of DCA opinions stating that recovery of accelerated rent must be reduced to present day value. See Vibrant Video, Inc. v. Dixie Pointe Associates, 567 So.2d 1003 (Fla. 3d DCA 1990); NEP Int’l, Inc. v. Falls, 629 So.2d 1019 (Fla. 4th DCA 1993); Florida Standard Jury Instruction 501.7. See, e.g. Braddock v. Seaboard Air Line R.R., 80 So.2d 662, 668 (Fla. 1955)(“…present compensation of future pain is merely one of the subjective elements of the problem, and is not a process of mathematical calculation of preset value, such as must be applied to periodic future pecuniary losses); Quintero-Chadid Corp v, Gersten, 582 So.2d 685,689 (Fla. 3d DCA 1991)(court noted that Vibrant Video held that a landlord’s future monetary losses had to be reduced to present value).

Regards,

Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
301 Yamato Road, Suite 1240
Boca Raton, Florida 33431
Telephone: (561) 226-4628
Facsimile: (561) 994-6693
Website: www.horkylaw.com http://www.horkylaw.com

This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky@horkylaw.com mailto:ahorky@horkylaw.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Neil B. Shoter
Sent: Thursday, February 09, 2012 9:37 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date

While I have not researched this, the question of whether accelerated rents “must” be discounted to present value if such is not stated in the lease arises from time to time, and I understand that judges do discount the amount to PV – BUT, is the discounting accelerated rents to PV a “mandatory” or uniform practice across courts in Florida or only followed in certain jurisdictions??

This is useful in cases where a landlord refuses to allow mention in the lease of discounting to PV.

[cid:image001.jpg@01CCE714.A9177230]

Neil B. Shoter
Partner / LEED Accredited Professional

Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401
Direct: (561) 650-8535 | Fax: (561) 822-5525
E-Mailmailto:NShoter@shutts.com | Biographyhttp://www.shutts.com/attorneys-Neil-Shoter.html | V-Cardhttp://www.shutts.com/vcard-181.vcf | Websitehttp://www.shutts.com

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Wednesday, February 08, 2012 5:43 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date

I think the court sets what it believes to be an appropriate present value as applied to each case; I’m not aware of a case that gives a certain percentage.
As to question two, the answer is yes. I’ve filed partial satisfactions of the judgment once payments were made
Good luck!
Manny

[cid:image002.jpg@01CCE714.A9177230]

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
www.RichmanGreer.com http://www.RichmanGreer.com

[cid:image003.jpg@01CCE714.A9177230]

To ensure compliance with requirements imposed by the IRS, we inform
you that any U.S. federal tax advice contained in this communication (including
any attachments) is not intended or written to be used, and cannot be used, for
the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii)
promoting, marketing or recommending to another party any transaction or matter
addressed herein.

This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not
landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in
reliance on the contents of this information is strictly prohibited. E-mail
transmission cannot be guarranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which
arise as a result of e-mail transmission. If verification is required please request a hard-copy version.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeff Mazor
Sent: Wednesday, February 08, 2012 5:29 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date

I’ve researched this to death and haven’t found a direct answer. Maybe you can help?

Question One: If not provided for in the Lease, what discount rate do you use to calculate the Present Value of sums that come due under a lease?

Question Two: IF we sue for damages under an “Original Lease”, we are entitled to a judgment equal to:

(i) past due rent, repair expense and other charges; plus,

(ii) landlord's attorneys' fees and costs; plus,

(iii) “accelerated balance” due under the lease, less a credit for "the amount received upon reletting the premises", Boulevard Shoppes, A.B. v. Pro-1 Realty, Inc.605 So.2d 1317 (Fla., 4th DCA, 1992), reduced to present value.

Thanks,

Jeff Mazor

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

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.

Thanks Anthony. This has been instructive. [cid:image001.jpg@01CCE714.A9177230] Neil B. Shoter Partner / LEED Accredited Professional ________________________________ Shutts & Bowen LLP 1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401 Direct: (561) 650-8535 | Fax: (561) 822-5525 E-Mail<mailto:NShoter@shutts.com> | Biography<http://www.shutts.com/attorneys-Neil-Shoter.html> | V-Card<http://www.shutts.com/vcard-181.vcf> | Website<http://www.shutts.com> From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky Sent: Thursday, February 09, 2012 10:16 AM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date Recovery of accelerated rent is recovery of future economic losses. I do not have a Florida Supreme Court case directly on point, but I have seen a number of DCA opinions stating that recovery of accelerated rent must be reduced to present day value. See Vibrant Video, Inc. v. Dixie Pointe Associates, 567 So.2d 1003 (Fla. 3d DCA 1990); NEP Int’l, Inc. v. Falls, 629 So.2d 1019 (Fla. 4th DCA 1993); Florida Standard Jury Instruction 501.7. See, e.g. Braddock v. Seaboard Air Line R.R., 80 So.2d 662, 668 (Fla. 1955)(“…present compensation of future pain is merely one of the subjective elements of the problem, and is not a process of mathematical calculation of preset value, such as must be applied to periodic future pecuniary losses); Quintero-Chadid Corp v, Gersten, 582 So.2d 685,689 (Fla. 3d DCA 1991)(court noted that Vibrant Video held that a landlord’s future monetary losses had to be reduced to present value). Regards, Anthony J. Horky, Esquire Anthony J. Horky, P.A. 301 Yamato Road, Suite 1240 Boca Raton, Florida 33431 Telephone: (561) 226-4628 Facsimile: (561) 994-6693 Website: www.horkylaw.com<http://www.horkylaw.com> This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky@horkylaw.com<mailto:ahorky@horkylaw.com>. ------------------------------------------------------- Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Neil B. Shoter Sent: Thursday, February 09, 2012 9:37 AM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date While I have not researched this, the question of whether accelerated rents “must” be discounted to present value if such is not stated in the lease arises from time to time, and I understand that judges do discount the amount to PV – BUT, is the discounting accelerated rents to PV a “mandatory” or uniform practice across courts in Florida or only followed in certain jurisdictions?? This is useful in cases where a landlord refuses to allow mention in the lease of discounting to PV. [cid:image001.jpg@01CCE714.A9177230] Neil B. Shoter Partner / LEED Accredited Professional ________________________________ Shutts & Bowen LLP 1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401 Direct: (561) 650-8535 | Fax: (561) 822-5525 E-Mail<mailto:NShoter@shutts.com> | Biography<http://www.shutts.com/attorneys-Neil-Shoter.html> | V-Card<http://www.shutts.com/vcard-181.vcf> | Website<http://www.shutts.com> From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach Sent: Wednesday, February 08, 2012 5:43 PM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date I think the court sets what it believes to be an appropriate present value as applied to each case; I’m not aware of a case that gives a certain percentage. As to question two, the answer is yes. I’ve filed partial satisfactions of the judgment once payments were made Good luck! Manny ________________________________ [cid:image002.jpg@01CCE714.A9177230] Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar Richman Greer P.A. One Clearlake Centre Suite 1504 250 Australian Avenue South West Palm Beach, Florida 33401 Office: 561.803.3500 Fax: 561.820.1608 Direct: 561.803.3501 Email: MFarach@richmangreer.com www.RichmanGreer.com<http://www.RichmanGreer.com> [cid:image003.jpg@01CCE714.A9177230] To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited. E-mail transmission cannot be guarranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version. ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeff Mazor Sent: Wednesday, February 08, 2012 5:29 PM To: 'RPPTL Landlord Tenant Committee' Subject: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date I’ve researched this to death and haven’t found a direct answer. Maybe you can help? Question One: If not provided for in the Lease, what discount rate do you use to calculate the Present Value of sums that come due under a lease? Question Two: IF we sue for damages under an “Original Lease”, we are entitled to a judgment equal to: (i) past due rent, repair expense and other charges; plus, (ii) landlord's attorneys' fees and costs; plus, (iii) “accelerated balance” due under the lease, less a credit for "the amount received upon reletting the premises", Boulevard Shoppes, A.B. v. Pro-1 Realty, Inc.605 So.2d 1317 (Fla., 4th DCA, 1992), reduced to present value. Thanks, Jeff Mazor 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> 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.

HG

Haney, Gregory

Thu, Feb 9, 2012 3:30 PM

Absolutely agree. When representing tenants I usually tack a NPV
provision (at around 6%) onto the acceleration clause, but now I'll have
to rethink trying to peg it, especially on longer term leases.

Gregory R. Haney
Attorney at Law
Shumaker, Loop & Kendrick, LLP
Bank of America Plaza
101 East Kennedy Boulevard
Suite 2800
Tampa, FL 33602
813.229.7600
813.227.2277 direct
813.229.1660 fax
ghaney@slk-law.com
http://www.slk-law.com/

IRS Circular 230 Notice: We are required to advise you no person or entity may use any tax advice in this communication or any attachment to (i) avoid any penalty under federal tax law or (ii) promote, market or recommend any purchase, investment or other action.

Confidentiality Statement: This electronic message contains information from the law firm of Shumaker, Loop & Kendrick, LLP, and may be confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this message is prohibited. If you have received this electronic message in error, please notify the sender immediately by reply e-mail or telephone 800.444.6659.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Neil B.
Shoter
Sent: Thursday, February 09, 2012 10:22 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated
Rentthru what date

Thanks Anthony. This has been instructive.

Neil B. Shoter
Partner / LEED Accredited Professional

Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL
33401
Direct: (561) 650-8535 | Fax: (561) 822-5525
E-Mail mailto:NShoter@shutts.com | Biography
http://www.shutts.com/attorneys-Neil-Shoter.html | V-Card
http://www.shutts.com/vcard-181.vcf | Website http://www.shutts.com

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J.
Horky
Sent: Thursday, February 09, 2012 10:16 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent
thru what date

Recovery of accelerated rent is recovery of future economic losses. I
do not have a Florida Supreme Court case directly on point, but I have
seen a number of DCA opinions stating that recovery of accelerated rent
must be reduced to present day value. See Vibrant Video, Inc. v. Dixie
Pointe Associates, 567 So.2d 1003 (Fla. 3d DCA 1990); NEP Int'l, Inc. v.
Falls, 629 So.2d 1019 (Fla. 4th DCA 1993); Florida Standard Jury
Instruction 501.7. See, e.g. Braddock v. Seaboard Air Line R.R., 80
So.2d 662, 668 (Fla. 1955)("...present compensation of future pain is
merely one of the subjective elements of the problem, and is not a
process of mathematical calculation of preset value, such as must be
applied to periodic future pecuniary losses); Quintero-Chadid Corp v,
Gersten, 582 So.2d 685,689 (Fla. 3d DCA 1991)(court noted that Vibrant
Video held that a landlord's future monetary losses had to be reduced to
present value).

Regards,

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

301 Yamato Road, Suite 1240

Boca Raton, Florida 33431

Telephone: (561) 226-4628

Facsimile: (561) 994-6693

Website: www.horkylaw.com

This message and the documents attached to it, if any, are intended only
for the use of the addressee and may contain information that is
attorney-client privileged or confidential, and/or may contain attorney
work product. If you are not the intended recipient, you are hereby
notified that any dissemination of this communication is strictly
prohibited. If you have received this communication in error, please
delete all electronic copies of this message and its attachments, if
any, destroy any hard copies you may have created and notify me
immediately at: ahorky@horkylaw.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by
the IRS under Circular 230, we inform you that any U.S. federal tax
advice contained in this communication (including any attachments),
unless otherwise specifically stated, was not intended or written to be
used, and cannot be used, for the purpose of (1) avoiding penalties
under the Internal Revenue Code or (2) promoting, marketing or
recommending to another party any matters addressed herein.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Neil B.
Shoter
Sent: Thursday, February 09, 2012 9:37 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent
thru what date

While I have not researched this, the question of whether accelerated
rents "must" be discounted to present value if such is not stated in the
lease arises from time to time, and I understand that judges do discount
the amount to PV - BUT, is the discounting accelerated rents to PV a
"mandatory" or uniform practice across courts in Florida or only
followed in certain jurisdictions??

This is useful in cases where a landlord refuses to allow mention in the
lease of discounting to PV.

Neil B. Shoter
Partner / LEED Accredited Professional

Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL
33401
Direct: (561) 650-8535 | Fax: (561) 822-5525
E-Mail mailto:NShoter@shutts.com | Biography
http://www.shutts.com/attorneys-Neil-Shoter.html | V-Card
http://www.shutts.com/vcard-181.vcf | Website http://www.shutts.com

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel
Farach
Sent: Wednesday, February 08, 2012 5:43 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent
thru what date

I think the court sets what it believes to be an appropriate present
value as applied to each case; I'm not aware of a case that gives a
certain percentage.

As to question two, the answer is yes. I've filed partial satisfactions
of the judgment once payments were made

Good luck!

Manny

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and
Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
www.RichmanGreer.com

To ensure compliance with requirements imposed by the IRS, we inform
you that any U.S. federal tax advice contained in this communication
(including
any attachments) is not intended or written to be used, and cannot be
used, for
the purpose of (i) avoiding penalties under the Internal Revenue Code or
(ii)
promoting, marketing or recommending to another party any transaction or
matter
addressed herein.

This message contains confidential information and is intended for
landten@lists.flabarrpptl.org. If you are not
landten@lists.flabarrpptl.org you are notified that disclosing, copying,
distributing or taking any action in
reliance on the contents of this information is strictly prohibited.
E-mail
transmission cannot be guarranteed to be secure or error-free as
information could be intercepted, corrupted, lost, destroyed, arrive
late or incomplete, or contain viruses. The sender
(MFarach@richmangreer.com) therefore does not accept liability for any
errors or omissions in the contents of this message, which
arise as a result of e-mail transmission. If verification is required
please request a hard-copy version.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeff Mazor
Sent: Wednesday, February 08, 2012 5:29 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru
what date

I've researched this to death and haven't found a direct answer. Maybe
you can help?

Question One: If not provided for in the Lease, what discount rate do
you use to calculate the Present Value of sums that come due under a
lease?

Question Two: IF we sue for damages under an "Original Lease", we are
entitled to a judgment equal to:

(i) past due rent, repair expense and other charges; plus,

(ii) landlord's attorneys' fees and costs; plus,

(iii) "accelerated balance" due under the lease, less a credit for "the
amount received upon reletting the premises", Boulevard Shoppes, A.B. v.
Pro-1 Realty, Inc.605 So.2d 1317 (Fla., 4th DCA, 1992), reduced to
present value.

Thanks,

Jeff Mazor

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

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.

Absolutely agree. When representing tenants I usually tack a NPV provision (at around 6%) onto the acceleration clause, but now I'll have to rethink trying to peg it, especially on longer term leases. Gregory R. Haney Attorney at Law Shumaker, Loop & Kendrick, LLP Bank of America Plaza 101 East Kennedy Boulevard Suite 2800 Tampa, FL 33602 813.229.7600 813.227.2277 direct 813.229.1660 fax ghaney@slk-law.com http://www.slk-law.com/ -------------------------------------------------------------------------- IRS Circular 230 Notice: We are required to advise you no person or entity may use any tax advice in this communication or any attachment to (i) avoid any penalty under federal tax law or (ii) promote, market or recommend any purchase, investment or other action. Confidentiality Statement: This electronic message contains information from the law firm of Shumaker, Loop & Kendrick, LLP, and may be confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this message is prohibited. If you have received this electronic message in error, please notify the sender immediately by reply e-mail or telephone 800.444.6659. ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Neil B. Shoter Sent: Thursday, February 09, 2012 10:22 AM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rentthru what date Thanks Anthony. This has been instructive. Neil B. Shoter Partner / LEED Accredited Professional ________________________________ Shutts & Bowen LLP 1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401 Direct: (561) 650-8535 | Fax: (561) 822-5525 E-Mail <mailto:NShoter@shutts.com> | Biography <http://www.shutts.com/attorneys-Neil-Shoter.html> | V-Card <http://www.shutts.com/vcard-181.vcf> | Website <http://www.shutts.com> From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky Sent: Thursday, February 09, 2012 10:16 AM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date Recovery of accelerated rent is recovery of future economic losses. I do not have a Florida Supreme Court case directly on point, but I have seen a number of DCA opinions stating that recovery of accelerated rent must be reduced to present day value. See Vibrant Video, Inc. v. Dixie Pointe Associates, 567 So.2d 1003 (Fla. 3d DCA 1990); NEP Int'l, Inc. v. Falls, 629 So.2d 1019 (Fla. 4th DCA 1993); Florida Standard Jury Instruction 501.7. See, e.g. Braddock v. Seaboard Air Line R.R., 80 So.2d 662, 668 (Fla. 1955)("...present compensation of future pain is merely one of the subjective elements of the problem, and is not a process of mathematical calculation of preset value, such as must be applied to periodic future pecuniary losses); Quintero-Chadid Corp v, Gersten, 582 So.2d 685,689 (Fla. 3d DCA 1991)(court noted that Vibrant Video held that a landlord's future monetary losses had to be reduced to present value). Regards, Anthony J. Horky, Esquire Anthony J. Horky, P.A. 301 Yamato Road, Suite 1240 Boca Raton, Florida 33431 Telephone: (561) 226-4628 Facsimile: (561) 994-6693 Website: www.horkylaw.com This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky@horkylaw.com. ------------------------------------------------------- Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Neil B. Shoter Sent: Thursday, February 09, 2012 9:37 AM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date While I have not researched this, the question of whether accelerated rents "must" be discounted to present value if such is not stated in the lease arises from time to time, and I understand that judges do discount the amount to PV - BUT, is the discounting accelerated rents to PV a "mandatory" or uniform practice across courts in Florida or only followed in certain jurisdictions?? This is useful in cases where a landlord refuses to allow mention in the lease of discounting to PV. Neil B. Shoter Partner / LEED Accredited Professional ________________________________ Shutts & Bowen LLP 1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401 Direct: (561) 650-8535 | Fax: (561) 822-5525 E-Mail <mailto:NShoter@shutts.com> | Biography <http://www.shutts.com/attorneys-Neil-Shoter.html> | V-Card <http://www.shutts.com/vcard-181.vcf> | Website <http://www.shutts.com> From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach Sent: Wednesday, February 08, 2012 5:43 PM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date I think the court sets what it believes to be an appropriate present value as applied to each case; I'm not aware of a case that gives a certain percentage. As to question two, the answer is yes. I've filed partial satisfactions of the judgment once payments were made Good luck! Manny ________________________________ Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar Richman Greer P.A. One Clearlake Centre Suite 1504 250 Australian Avenue South West Palm Beach, Florida 33401 Office: 561.803.3500 Fax: 561.820.1608 Direct: 561.803.3501 Email: MFarach@richmangreer.com www.RichmanGreer.com To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited. E-mail transmission cannot be guarranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version. ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeff Mazor Sent: Wednesday, February 08, 2012 5:29 PM To: 'RPPTL Landlord Tenant Committee' Subject: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date I've researched this to death and haven't found a direct answer. Maybe you can help? Question One: If not provided for in the Lease, what discount rate do you use to calculate the Present Value of sums that come due under a lease? Question Two: IF we sue for damages under an "Original Lease", we are entitled to a judgment equal to: (i) past due rent, repair expense and other charges; plus, (ii) landlord's attorneys' fees and costs; plus, (iii) "accelerated balance" due under the lease, less a credit for "the amount received upon reletting the premises", Boulevard Shoppes, A.B. v. Pro-1 Realty, Inc.605 So.2d 1317 (Fla., 4th DCA, 1992), reduced to present value. Thanks, Jeff Mazor 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 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.

JM

Jeff Mazor

Thu, Feb 9, 2012 3:41 PM

Recovery of accelerated rent absolutely must be reduced to present value.

The question is, what discount rate is to apply when the lease does not specify?

The last time I looked, which was years ago, there was no clear statement in the case law.

Time to look again.

Jeff

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

-----Original Message-----
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Thursday, February 09, 2012 10:16 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date

Recovery of accelerated rent is recovery of future economic losses. I do not have a Florida Supreme Court case directly on point, but I have seen a number of DCA opinions stating that recovery of accelerated rent must be reduced to present day value. See Vibrant Video, Inc. v. Dixie Pointe Associates, 567 So.2d 1003 (Fla. 3d DCA 1990); NEP Int’l, Inc. v. Falls, 629 So.2d 1019 (Fla. 4th DCA 1993); Florida Standard Jury Instruction 501.7. See, e.g. Braddock v. Seaboard Air Line R.R., 80 So.2d 662, 668 (Fla. 1955)(“…present compensation of future pain is merely one of the subjective elements of the problem, and is not a process of mathematical calculation of preset value, such as must be applied to periodic future pecuniary losses); Quintero-Chadid Corp v, Gersten, 582 So.2d 685,689 (Fla. 3d DCA 1991)(court noted that Vibrant Video held that a landlord’s future monetary losses had to be reduced to present value).

Regards,

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

301 Yamato Road, Suite 1240

Boca Raton, Florida 33431

Telephone: (561) 226-4628

Facsimile: (561) 994-6693

Website: www.horkylaw.com http://www.horkylaw.com

This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky@horkylaw.com mailto:ahorky@horkylaw.com .

Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Neil B. Shoter
Sent: Thursday, February 09, 2012 9:37 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date

While I have not researched this, the question of whether accelerated rents “must” be discounted to present value if such is not stated in the lease arises from time to time, and I understand that judges do discount the amount to PV – BUT, is the discounting accelerated rents to PV a “mandatory” or uniform practice across courts in Florida or only followed in certain jurisdictions??

This is useful in cases where a landlord refuses to allow mention in the lease of discounting to PV.

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

Neil B. Shoter
Partner / LEED Accredited Professional

Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401
Direct: (561) 650-8535 | Fax: (561) 822-5525 E-Mail mailto:NShoter@shutts.com | Biography http://www.shutts.com/attorneys-Neil-Shoter.html | V-Card http://www.shutts.com/vcard-181.vcf | Website http://www.shutts.com

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Wednesday, February 08, 2012 5:43 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date

I think the court sets what it believes to be an appropriate present value as applied to each case; I’m not aware of a case that gives a certain percentage.

As to question two, the answer is yes. I’ve filed partial satisfactions of the judgment once payments were made

Good luck!

Manny

Image removed by sender.

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
www.RichmanGreer.com

Image removed by sender.

To ensure compliance with requirements imposed by the IRS, we inform
you that any U.S. federal tax advice contained in this communication (including
any attachments) is not intended or written to be used, and cannot be used, for
the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii)
promoting, marketing or recommending to another party any transaction or matter
addressed herein.

This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not
landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in
reliance on the contents of this information is strictly prohibited. E-mail
transmission cannot be guarranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which
arise as a result of e-mail transmission. If verification is required please request a hard-copy version.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeff Mazor
Sent: Wednesday, February 08, 2012 5:29 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date

I’ve researched this to death and haven’t found a direct answer. Maybe you can help?

Question One: If not provided for in the Lease, what discount rate do you use to calculate the Present Value of sums that come due under a lease?

Question Two: IF we sue for damages under an “Original Lease”, we are entitled to a judgment equal to:

(i) past due rent, repair expense and other charges; plus,

(ii) landlord's attorneys' fees and costs; plus,

(iii) “accelerated balance” due under the lease, less a credit for "the amount received upon reletting the premises", Boulevard Shoppes, A.B. v. Pro-1 Realty, Inc.605 So.2d 1317 (Fla., 4th DCA, 1992), reduced to present value.

Thanks,

Jeff Mazor

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

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.

Recovery of accelerated rent absolutely must be reduced to present value. The question is, what discount rate is to apply when the lease does not specify? The last time I looked, which was years ago, there was no clear statement in the case law. Time to look again. Jeff 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 -----Original Message----- From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky Sent: Thursday, February 09, 2012 10:16 AM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date Recovery of accelerated rent is recovery of future economic losses. I do not have a Florida Supreme Court case directly on point, but I have seen a number of DCA opinions stating that recovery of accelerated rent must be reduced to present day value. See Vibrant Video, Inc. v. Dixie Pointe Associates, 567 So.2d 1003 (Fla. 3d DCA 1990); NEP Int’l, Inc. v. Falls, 629 So.2d 1019 (Fla. 4th DCA 1993); Florida Standard Jury Instruction 501.7. See, e.g. Braddock v. Seaboard Air Line R.R., 80 So.2d 662, 668 (Fla. 1955)(“…present compensation of future pain is merely one of the subjective elements of the problem, and is not a process of mathematical calculation of preset value, such as must be applied to periodic future pecuniary losses); Quintero-Chadid Corp v, Gersten, 582 So.2d 685,689 (Fla. 3d DCA 1991)(court noted that Vibrant Video held that a landlord’s future monetary losses had to be reduced to present value). Regards, Anthony J. Horky, Esquire Anthony J. Horky, P.A. 301 Yamato Road, Suite 1240 Boca Raton, Florida 33431 Telephone: (561) 226-4628 Facsimile: (561) 994-6693 Website: www.horkylaw.com <http://www.horkylaw.com> This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky@horkylaw.com <mailto:ahorky@horkylaw.com> . ------------------------------------------------------- Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Neil B. Shoter Sent: Thursday, February 09, 2012 9:37 AM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date While I have not researched this, the question of whether accelerated rents “must” be discounted to present value if such is not stated in the lease arises from time to time, and I understand that judges do discount the amount to PV – BUT, is the discounting accelerated rents to PV a “mandatory” or uniform practice across courts in Florida or only followed in certain jurisdictions?? This is useful in cases where a landlord refuses to allow mention in the lease of discounting to PV. http://www.shutts.com/shutts100.jpg Neil B. Shoter Partner / LEED Accredited Professional ________________________________ Shutts & Bowen LLP 1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401 Direct: (561) 650-8535 | Fax: (561) 822-5525 E-Mail <mailto:NShoter@shutts.com> | Biography <http://www.shutts.com/attorneys-Neil-Shoter.html> | V-Card <http://www.shutts.com/vcard-181.vcf> | Website <http://www.shutts.com> From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach Sent: Wednesday, February 08, 2012 5:43 PM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date I think the court sets what it believes to be an appropriate present value as applied to each case; I’m not aware of a case that gives a certain percentage. As to question two, the answer is yes. I’ve filed partial satisfactions of the judgment once payments were made Good luck! Manny ________________________________ Image removed by sender. Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar Richman Greer P.A. One Clearlake Centre Suite 1504 250 Australian Avenue South West Palm Beach, Florida 33401 Office: 561.803.3500 Fax: 561.820.1608 Direct: 561.803.3501 Email: MFarach@richmangreer.com www.RichmanGreer.com Image removed by sender. To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited. E-mail transmission cannot be guarranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version. ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeff Mazor Sent: Wednesday, February 08, 2012 5:29 PM To: 'RPPTL Landlord Tenant Committee' Subject: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date I’ve researched this to death and haven’t found a direct answer. Maybe you can help? Question One: If not provided for in the Lease, what discount rate do you use to calculate the Present Value of sums that come due under a lease? Question Two: IF we sue for damages under an “Original Lease”, we are entitled to a judgment equal to: (i) past due rent, repair expense and other charges; plus, (ii) landlord's attorneys' fees and costs; plus, (iii) “accelerated balance” due under the lease, less a credit for "the amount received upon reletting the premises", Boulevard Shoppes, A.B. v. Pro-1 Realty, Inc.605 So.2d 1317 (Fla., 4th DCA, 1992), reduced to present value. Thanks, Jeff Mazor 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 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.

AJ

Arthur J. Menor

Thu, Feb 9, 2012 3:52 PM

An issue that often gets overlooked in lease negotiations is the discount rate to be specifying in the acceleration clause. The lower the rate the smaller the reduction for present value and the higher rate the greater the reduction. In other words, the amount of the accelerated rent damages will be greater if a lower discount rate is chosen. Therefore, when representing landlords our lease form states as follows:

If Tenant defaults, in addition to all remedies provided by law, Landlord may declare the entire balance of all forms of Rent due under this Lease for the remainder of the Lease Term to be forthwith due and payable and may collect the then present value of the Rents (calculated using a discount rate equal to the discount rate of the branch of the Federal Reserve Bank closest to the Premises in effect as of the date of the default).

Of course, if you are representing a tenant you would want to try for a higher discount rate such as a prime rate.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Haney, Gregory
Sent: Thursday, February 09, 2012 10:30 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rentthru what date

Absolutely agree. When representing tenants I usually tack a NPV provision (at around 6%) onto the acceleration clause, but now I'll have to rethink trying to peg it, especially on longer term leases.

Gregory R. Haney
Attorney at Law
Shumaker, Loop & Kendrick, LLP
Bank of America Plaza
101 East Kennedy Boulevard
Suite 2800
Tampa, FL 33602
813.229.7600
813.227.2277 direct
813.229.1660 fax
ghaney@slk-law.com
www.slk-law.com http://www.slk-law.com/

IRS Circular 230 Notice: We are required to advise you no person or entity may use any tax advice in this communication or any attachment to (i) avoid any penalty under federal tax law or (ii) promote, market or recommend any purchase, investment or other action.

Confidentiality Statement: This electronic message contains information from the law firm of Shumaker, Loop & Kendrick, LLP, and may be confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this message is prohibited. If you have received this electronic message in error, please notify the sender immediately by reply e-mail or telephone 800.444.6659.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Neil B. Shoter
Sent: Thursday, February 09, 2012 10:22 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rentthru what date
Thanks Anthony. This has been instructive.

[cid:image001.jpg@01CCE718.9ABADA70]

Neil B. Shoter
Partner / LEED Accredited Professional

Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401
Direct: (561) 650-8535 | Fax: (561) 822-5525
E-Mailmailto:NShoter@shutts.com | Biographyhttp://www.shutts.com/attorneys-Neil-Shoter.html | V-Cardhttp://www.shutts.com/vcard-181.vcf | Websitehttp://www.shutts.com

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Thursday, February 09, 2012 10:16 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date

Recovery of accelerated rent is recovery of future economic losses. I do not have a Florida Supreme Court case directly on point, but I have seen a number of DCA opinions stating that recovery of accelerated rent must be reduced to present day value. See Vibrant Video, Inc. v. Dixie Pointe Associates, 567 So.2d 1003 (Fla. 3d DCA 1990); NEP Int’l, Inc. v. Falls, 629 So.2d 1019 (Fla. 4th DCA 1993); Florida Standard Jury Instruction 501.7. See, e.g. Braddock v. Seaboard Air Line R.R., 80 So.2d 662, 668 (Fla. 1955)(“…present compensation of future pain is merely one of the subjective elements of the problem, and is not a process of mathematical calculation of preset value, such as must be applied to periodic future pecuniary losses); Quintero-Chadid Corp v, Gersten, 582 So.2d 685,689 (Fla. 3d DCA 1991)(court noted that Vibrant Video held that a landlord’s future monetary losses had to be reduced to present value).

Regards,

Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
301 Yamato Road, Suite 1240
Boca Raton, Florida 33431
Telephone: (561) 226-4628
Facsimile: (561) 994-6693
Website: www.horkylaw.com http://www.horkylaw.com

This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky@horkylaw.com mailto:ahorky@horkylaw.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Neil B. Shoter
Sent: Thursday, February 09, 2012 9:37 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date

While I have not researched this, the question of whether accelerated rents “must” be discounted to present value if such is not stated in the lease arises from time to time, and I understand that judges do discount the amount to PV – BUT, is the discounting accelerated rents to PV a “mandatory” or uniform practice across courts in Florida or only followed in certain jurisdictions??

This is useful in cases where a landlord refuses to allow mention in the lease of discounting to PV.

[cid:image001.jpg@01CCE718.9ABADA70]

Neil B. Shoter
Partner / LEED Accredited Professional

Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401
Direct: (561) 650-8535 | Fax: (561) 822-5525
E-Mailmailto:NShoter@shutts.com | Biographyhttp://www.shutts.com/attorneys-Neil-Shoter.html | V-Cardhttp://www.shutts.com/vcard-181.vcf | Websitehttp://www.shutts.com

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Wednesday, February 08, 2012 5:43 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date

I think the court sets what it believes to be an appropriate present value as applied to each case; I’m not aware of a case that gives a certain percentage.
As to question two, the answer is yes. I’ve filed partial satisfactions of the judgment once payments were made
Good luck!
Manny

[cid:image002.jpg@01CCE718.9ABADA70]

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
www.RichmanGreer.com http://www.RichmanGreer.com

[cid:image003.jpg@01CCE718.9ABADA70]

To ensure compliance with requirements imposed by the IRS, we inform
you that any U.S. federal tax advice contained in this communication (including
any attachments) is not intended or written to be used, and cannot be used, for
the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii)
promoting, marketing or recommending to another party any transaction or matter
addressed herein.

This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not
landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in
reliance on the contents of this information is strictly prohibited. E-mail
transmission cannot be guarranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which
arise as a result of e-mail transmission. If verification is required please request a hard-copy version.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeff Mazor
Sent: Wednesday, February 08, 2012 5:29 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date

I’ve researched this to death and haven’t found a direct answer. Maybe you can help?

Question One: If not provided for in the Lease, what discount rate do you use to calculate the Present Value of sums that come due under a lease?

Question Two: IF we sue for damages under an “Original Lease”, we are entitled to a judgment equal to:

(i) past due rent, repair expense and other charges; plus,

(ii) landlord's attorneys' fees and costs; plus,

(iii) “accelerated balance” due under the lease, less a credit for "the amount received upon reletting the premises", Boulevard Shoppes, A.B. v. Pro-1 Realty, Inc.605 So.2d 1317 (Fla., 4th DCA, 1992), reduced to present value.

Thanks,

Jeff Mazor

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

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.

An issue that often gets overlooked in lease negotiations is the discount rate to be specifying in the acceleration clause. The lower the rate the smaller the reduction for present value and the higher rate the greater the reduction. In other words, the amount of the accelerated rent damages will be greater if a lower discount rate is chosen. Therefore, when representing landlords our lease form states as follows: If Tenant defaults, in addition to all remedies provided by law, Landlord may declare the entire balance of all forms of Rent due under this Lease for the remainder of the Lease Term to be forthwith due and payable and may collect the then present value of the Rents (calculated using a discount rate equal to the discount rate of the branch of the Federal Reserve Bank closest to the Premises in effect as of the date of the default). Of course, if you are representing a tenant you would want to try for a higher discount rate such as a prime rate. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Haney, Gregory Sent: Thursday, February 09, 2012 10:30 AM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rentthru what date Absolutely agree. When representing tenants I usually tack a NPV provision (at around 6%) onto the acceleration clause, but now I'll have to rethink trying to peg it, especially on longer term leases. Gregory R. Haney Attorney at Law Shumaker, Loop & Kendrick, LLP Bank of America Plaza 101 East Kennedy Boulevard Suite 2800 Tampa, FL 33602 813.229.7600 813.227.2277 direct 813.229.1660 fax ghaney@slk-law.com www.slk-law.com<http://www.slk-law.com/> ________________________________ IRS Circular 230 Notice: We are required to advise you no person or entity may use any tax advice in this communication or any attachment to (i) avoid any penalty under federal tax law or (ii) promote, market or recommend any purchase, investment or other action. Confidentiality Statement: This electronic message contains information from the law firm of Shumaker, Loop & Kendrick, LLP, and may be confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this message is prohibited. If you have received this electronic message in error, please notify the sender immediately by reply e-mail or telephone 800.444.6659. ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Neil B. Shoter Sent: Thursday, February 09, 2012 10:22 AM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rentthru what date Thanks Anthony. This has been instructive. [cid:image001.jpg@01CCE718.9ABADA70] Neil B. Shoter Partner / LEED Accredited Professional ________________________________ Shutts & Bowen LLP 1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401 Direct: (561) 650-8535 | Fax: (561) 822-5525 E-Mail<mailto:NShoter@shutts.com> | Biography<http://www.shutts.com/attorneys-Neil-Shoter.html> | V-Card<http://www.shutts.com/vcard-181.vcf> | Website<http://www.shutts.com> From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky Sent: Thursday, February 09, 2012 10:16 AM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date Recovery of accelerated rent is recovery of future economic losses. I do not have a Florida Supreme Court case directly on point, but I have seen a number of DCA opinions stating that recovery of accelerated rent must be reduced to present day value. See Vibrant Video, Inc. v. Dixie Pointe Associates, 567 So.2d 1003 (Fla. 3d DCA 1990); NEP Int’l, Inc. v. Falls, 629 So.2d 1019 (Fla. 4th DCA 1993); Florida Standard Jury Instruction 501.7. See, e.g. Braddock v. Seaboard Air Line R.R., 80 So.2d 662, 668 (Fla. 1955)(“…present compensation of future pain is merely one of the subjective elements of the problem, and is not a process of mathematical calculation of preset value, such as must be applied to periodic future pecuniary losses); Quintero-Chadid Corp v, Gersten, 582 So.2d 685,689 (Fla. 3d DCA 1991)(court noted that Vibrant Video held that a landlord’s future monetary losses had to be reduced to present value). Regards, Anthony J. Horky, Esquire Anthony J. Horky, P.A. 301 Yamato Road, Suite 1240 Boca Raton, Florida 33431 Telephone: (561) 226-4628 Facsimile: (561) 994-6693 Website: www.horkylaw.com<http://www.horkylaw.com> This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky@horkylaw.com<mailto:ahorky@horkylaw.com>. ------------------------------------------------------- Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Neil B. Shoter Sent: Thursday, February 09, 2012 9:37 AM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date While I have not researched this, the question of whether accelerated rents “must” be discounted to present value if such is not stated in the lease arises from time to time, and I understand that judges do discount the amount to PV – BUT, is the discounting accelerated rents to PV a “mandatory” or uniform practice across courts in Florida or only followed in certain jurisdictions?? This is useful in cases where a landlord refuses to allow mention in the lease of discounting to PV. [cid:image001.jpg@01CCE718.9ABADA70] Neil B. Shoter Partner / LEED Accredited Professional ________________________________ Shutts & Bowen LLP 1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401 Direct: (561) 650-8535 | Fax: (561) 822-5525 E-Mail<mailto:NShoter@shutts.com> | Biography<http://www.shutts.com/attorneys-Neil-Shoter.html> | V-Card<http://www.shutts.com/vcard-181.vcf> | Website<http://www.shutts.com> From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach Sent: Wednesday, February 08, 2012 5:43 PM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date I think the court sets what it believes to be an appropriate present value as applied to each case; I’m not aware of a case that gives a certain percentage. As to question two, the answer is yes. I’ve filed partial satisfactions of the judgment once payments were made Good luck! Manny ________________________________ [cid:image002.jpg@01CCE718.9ABADA70] Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar Richman Greer P.A. One Clearlake Centre Suite 1504 250 Australian Avenue South West Palm Beach, Florida 33401 Office: 561.803.3500 Fax: 561.820.1608 Direct: 561.803.3501 Email: MFarach@richmangreer.com www.RichmanGreer.com<http://www.RichmanGreer.com> [cid:image003.jpg@01CCE718.9ABADA70] To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited. E-mail transmission cannot be guarranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version. ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeff Mazor Sent: Wednesday, February 08, 2012 5:29 PM To: 'RPPTL Landlord Tenant Committee' Subject: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rent thru what date I’ve researched this to death and haven’t found a direct answer. Maybe you can help? Question One: If not provided for in the Lease, what discount rate do you use to calculate the Present Value of sums that come due under a lease? Question Two: IF we sue for damages under an “Original Lease”, we are entitled to a judgment equal to: (i) past due rent, repair expense and other charges; plus, (ii) landlord's attorneys' fees and costs; plus, (iii) “accelerated balance” due under the lease, less a credit for "the amount received upon reletting the premises", Boulevard Shoppes, A.B. v. Pro-1 Realty, Inc.605 So.2d 1317 (Fla., 4th DCA, 1992), reduced to present value. Thanks, Jeff Mazor 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> 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. 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NB

Neil B. Shoter

Thu, Feb 9, 2012 4:06 PM

Yes, it would seem based on Anthony’s earlier email about using an accounting expert at trial to determine the PV calculation that you can either negotiate the rate in the lease or leave it to the court to work out a rate.

[cid:image001.jpg@01CCE71A.E8CE1E50]

Neil B. Shoter
Partner / LEED Accredited Professional

Shutts & Bowen LLP
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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Arthur J. Menor
Sent: Thursday, February 09, 2012 10:52 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Breach of Lease/Damages/Accelerated Rentthru what date