[RPPTL LandTen] Assignment of Lease - Can the Assignor evict the Assignee?
Hello Members: I have a unique fact pattern and before I file suit, I'd be
interested to hear other member's opinion:
Facts:
Tenant operates a retail establishment. Tenant sells its "business" and
takes back a promissory note and security agreement. Tenant assigns its
rights in the lease to the purchaser by way of an Assignment of Lease and
Collateral Assignment, which provides, inter alia, that upon default in the
note or security agreement, and after 10 days written notice to cure,
seller/tenant may re-enter and take possession of the collateral and operate
the business through the unexpired term of the lease. Buyer defaults on
promissory note and will not peaceably surrender possession. Buyer remains
current on rent payments to landlord.
Issue: Seller/tenants wants to exercise its right of re-entry and sue on
the note.
Causes of action: Foreclosure of security agreement, breach of the note,
breach of personal guaranty and Declaratory Judgment that (1) buyer is in
default, (2) tenant/seller reserved right of re-entry, and (3) clerk to
issue writ of possession.
Question: Does anyone have an opinion on another type of cause of action to
adjudicate seller/tenant's right of re-entry? Tenant, as assignor, remains
liable under the lease, but I see no way to evict or remove the tenant other
by way of the remedy given in the Assignment by way of a declaratory
judgment.
Thank you for your time.
Regards,
AJH Logo mark
Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
2255 Glades Road, Suite 324A
Boca Raton, Florida 33431
T: 561.989.3206
F. 561.989.3204
http://www.horkylaw.com www.horkylaw.com
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Could the foreclosure of the security agreement (chattel mortgage) be styled similar to a foreclosure of a real estate mortgage and include a prayer for relief that plaintiff be put into possession? N the writ follows, but without going through the second count of the declaratory judgment. It seems if the remedy is in the security agreement, the court can grant it as part of that main action.
David Weisman
Board Certified Real Estate Lawyer
Greenspoon Marder, P.A.
Trade Center South, Suite 700
100 West Cypress Creek Road
Ft. Lauderdale, FL 33309
Phone 954-491-1120
Toll Free 888-491-1120
Direct Phone 954-343-6941
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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Wednesday, May 08, 2013 4:48 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Assignment of Lease - Can the Assignor evict the Assignee?
Hello Members: I have a unique fact pattern and before I file suit, I'd be interested to hear other member's opinion:
Facts:
Tenant operates a retail establishment. Tenant sells its "business" and takes back a promissory note and security agreement. Tenant assigns its rights in the lease to the purchaser by way of an Assignment of Lease and Collateral Assignment, which provides, inter alia, that upon default in the note or security agreement, and after 10 days written notice to cure, seller/tenant may re-enter and take possession of the collateral and operate the business through the unexpired term of the lease. Buyer defaults on promissory note and will not peaceably surrender possession. Buyer remains current on rent payments to landlord.
Issue: Seller/tenants wants to exercise its right of re-entry and sue on the note.
Causes of action: Foreclosure of security agreement, breach of the note, breach of personal guaranty and Declaratory Judgment that (1) buyer is in default, (2) tenant/seller reserved right of re-entry, and (3) clerk to issue writ of possession.
Question: Does anyone have an opinion on another type of cause of action to adjudicate seller/tenant's right of re-entry? Tenant, as assignor, remains liable under the lease, but I see no way to evict or remove the tenant other by way of the remedy given in the Assignment by way of a declaratory judgment.
Thank you for your time.
Regards,
[AJH Logo mark]
Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
2255 Glades Road, Suite 324A
Boca Raton, Florida 33431
T: 561.989.3206
F. 561.989.3204
www.horkylaw.comhttp://www.horkylaw.com
This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky@horkylaw.commailto:ahorky@horkylaw.com.
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I don't believe that the Seller can re-enter without a court order and would not encourage them to do so. I would seek preliminary injunctive relief if they are serious about getting back in their in a hurry though they'll like have to post a bond. In such case though I think it would be more in the nature of taking possession sort of "on account of" Buyer and not resuming occupancy as Tenant per se.
Also, once the lease is assigned unless there is something in the lease that allows the Tenant to resume its occupancy, I'm not sure what basis the Tenant would have to resume occupancy.
Sounds like an interesting mess. Interested in the thoughts of others
Eric Jacobs
ejacobs@beloffparker.com
Partner
AV Rated
Board Certified - Real Estate
Beloff | Parker | Jacobs, PLC
Broward Office
1930 Harrison Street, Suite 208
Hollywood, Florida 33020
(954) 929-0679 Telephone
(888) 632-4944 Facsimile
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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Wednesday, May 08, 2013 4:48 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Assignment of Lease - Can the Assignor evict the Assignee?
Hello Members: I have a unique fact pattern and before I file suit, I'd be interested to hear other member's opinion:
Facts:
Tenant operates a retail establishment. Tenant sells its "business" and takes back a promissory note and security agreement. Tenant assigns its rights in the lease to the purchaser by way of an Assignment of Lease and Collateral Assignment, which provides, inter alia, that upon default in the note or security agreement, and after 10 days written notice to cure, seller/tenant may re-enter and take possession of the collateral and operate the business through the unexpired term of the lease. Buyer defaults on promissory note and will not peaceably surrender possession. Buyer remains current on rent payments to landlord.
Issue: Seller/tenants wants to exercise its right of re-entry and sue on the note.
Causes of action: Foreclosure of security agreement, breach of the note, breach of personal guaranty and Declaratory Judgment that (1) buyer is in default, (2) tenant/seller reserved right of re-entry, and (3) clerk to issue writ of possession.
Question: Does anyone have an opinion on another type of cause of action to adjudicate seller/tenant's right of re-entry? Tenant, as assignor, remains liable under the lease, but I see no way to evict or remove the tenant other by way of the remedy given in the Assignment by way of a declaratory judgment.
Thank you for your time.
Regards,
[AJH Logo mark]
Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
2255 Glades Road, Suite 324A
Boca Raton, Florida 33431
T: 561.989.3206
F. 561.989.3204
www.horkylaw.comhttp://www.horkylaw.com
This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky@horkylaw.commailto:ahorky@horkylaw.com.
Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein.
For whatever it's worth, in franchise situations, the issue typically has some sophisticated focus; often I end up in a long negotiation with the franchisor on its "rider" or similar document, expressly dealing with its rights to cure if it wants, get all notices of default, get extra time to decide what to do, to take-back and resume occupancy and operation if it wants to, to then re-assign to another successor franchisor similarly qualified (and restrict its obligations to its period as tenant with no assignor-surviving-liability unlike a typical assignor post-assignment), or otherwise to enter and de-brand. The nuances of that negotiation can be involved, especially the core LL wish for indemnity against getting sucked into a possession dispute between the franchisor and franchisee. There's a reason why these players go to all the trouble to do that - to avoid the mess here... a real pain.
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Eric Jacobs
Sent: Thursday, May 09, 2013 9:12 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Assignment of Lease - Can the Assignor evict the Assignee?
I don't believe that the Seller can re-enter without a court order and would not encourage them to do so. I would seek preliminary injunctive relief if they are serious about getting back in their in a hurry though they'll like have to post a bond. In such case though I think it would be more in the nature of taking possession sort of "on account of" Buyer and not resuming occupancy as Tenant per se.
Also, once the lease is assigned unless there is something in the lease that allows the Tenant to resume its occupancy, I'm not sure what basis the Tenant would have to resume occupancy.
Sounds like an interesting mess. Interested in the thoughts of others
Eric Jacobs
ejacobs@beloffparker.com
Partner
AV Rated
Board Certified - Real Estate
Beloff | Parker | Jacobs, PLC
Broward Office
1930 Harrison Street, Suite 208
Hollywood, Florida 33020
(954) 929-0679 Telephone
(888) 632-4944 Facsimile
Confidentiality and Relationship Disclosure. If you are reading this, congratulations, you are probably the first. For years law firms have included lengthy disclosures at the bottom of their emails which in our view are of, at best, marginal legal value. We have decided not to do that. Instead, we will ask that if you got this email and shouldn't have, let us know and please don't read it (though if you've read this, chances are that ship has sailed). Also, just because we exchange emails doesn't make us your lawyer(s). If you would like to create an attorney/client relationship, we're glad to hear it and would be happy to provide you with an engagement letter. As soon as you have received written confirmation from us, you can consider our relationship formed.
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Wednesday, May 08, 2013 4:48 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Assignment of Lease - Can the Assignor evict the Assignee?
Hello Members: I have a unique fact pattern and before I file suit, I'd be interested to hear other member's opinion:
Facts:
Tenant operates a retail establishment. Tenant sells its "business" and takes back a promissory note and security agreement. Tenant assigns its rights in the lease to the purchaser by way of an Assignment of Lease and Collateral Assignment, which provides, inter alia, that upon default in the note or security agreement, and after 10 days written notice to cure, seller/tenant may re-enter and take possession of the collateral and operate the business through the unexpired term of the lease. Buyer defaults on promissory note and will not peaceably surrender possession. Buyer remains current on rent payments to landlord.
Issue: Seller/tenants wants to exercise its right of re-entry and sue on the note.
Causes of action: Foreclosure of security agreement, breach of the note, breach of personal guaranty and Declaratory Judgment that (1) buyer is in default, (2) tenant/seller reserved right of re-entry, and (3) clerk to issue writ of possession.
Question: Does anyone have an opinion on another type of cause of action to adjudicate seller/tenant's right of re-entry? Tenant, as assignor, remains liable under the lease, but I see no way to evict or remove the tenant other by way of the remedy given in the Assignment by way of a declaratory judgment.
Thank you for your time.
Regards,
[AJH Logo mark]
Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
2255 Glades Road, Suite 324A
Boca Raton, Florida 33431
T: 561.989.3206
F. 561.989.3204
www.horkylaw.comhttp://www.horkylaw.com
This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky@horkylaw.commailto:ahorky@horkylaw.com.
Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein.
Can anyone provide a referral (or raise their hand) for a residential real estate transaction in the Port St. Lucie area? Thanks.
As with the franchisors we have the same issue with Landlord Lien Waivers or Subordinations.
We take the position in the documents that we will not "give" the franchisor or financing or equipment company the right to come onto the leased property while tenant remains in possession, but we will not "object" to any rights given by tenant so long as and then we fill in our list of protections.
I have never seen it tested but it has always been my approach.
The language changes once tenant is no longer in possession.
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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Eric Jacobs
Sent: Thursday, May 09, 2013 9:12 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Assignment of Lease - Can the Assignor evict the Assignee?
I don't believe that the Seller can re-enter without a court order and would not encourage them to do so. I would seek preliminary injunctive relief if they are serious about getting back in their in a hurry though they'll like have to post a bond. In such case though I think it would be more in the nature of taking possession sort of "on account of" Buyer and not resuming occupancy as Tenant per se.
Also, once the lease is assigned unless there is something in the lease that allows the Tenant to resume its occupancy, I'm not sure what basis the Tenant would have to resume occupancy.
Sounds like an interesting mess. Interested in the thoughts of others
Eric Jacobs
ejacobs@beloffparker.commailto:ejacobs@beloffparker.com
Partner
AV Rated
Board Certified - Real Estate
Beloff | Parker | Jacobs, PLC
Broward Office
1930 Harrison Street, Suite 208
Hollywood, Florida 33020
(954) 929-0679 Telephone
(888) 632-4944 Facsimile
Confidentiality and Relationship Disclosure. If you are reading this, congratulations, you are probably the first. For years law firms have included lengthy disclosures at the bottom of their emails which in our view are of, at best, marginal legal value. We have decided not to do that. Instead, we will ask that if you got this email and shouldn't have, let us know and please don't read it (though if you've read this, chances are that ship has sailed). Also, just because we exchange emails doesn't make us your lawyer(s). If you would like to create an attorney/client relationship, we're glad to hear it and would be happy to provide you with an engagement letter. As soon as you have received written confirmation from us, you can consider our relationship formed.
From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Wednesday, May 08, 2013 4:48 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Assignment of Lease - Can the Assignor evict the Assignee?
Hello Members: I have a unique fact pattern and before I file suit, I'd be interested to hear other member's opinion:
Facts:
Tenant operates a retail establishment. Tenant sells its "business" and takes back a promissory note and security agreement. Tenant assigns its rights in the lease to the purchaser by way of an Assignment of Lease and Collateral Assignment, which provides, inter alia, that upon default in the note or security agreement, and after 10 days written notice to cure, seller/tenant may re-enter and take possession of the collateral and operate the business through the unexpired term of the lease. Buyer defaults on promissory note and will not peaceably surrender possession. Buyer remains current on rent payments to landlord.
Issue: Seller/tenants wants to exercise its right of re-entry and sue on the note.
Causes of action: Foreclosure of security agreement, breach of the note, breach of personal guaranty and Declaratory Judgment that (1) buyer is in default, (2) tenant/seller reserved right of re-entry, and (3) clerk to issue writ of possession.
Question: Does anyone have an opinion on another type of cause of action to adjudicate seller/tenant's right of re-entry? Tenant, as assignor, remains liable under the lease, but I see no way to evict or remove the tenant other by way of the remedy given in the Assignment by way of a declaratory judgment.
Thank you for your time.
Regards,
[AJH Logo mark]
Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
2255 Glades Road, Suite 324A
Boca Raton, Florida 33431
T: 561.989.3206
F. 561.989.3204
www.horkylaw.comhttp://www.horkylaw.com
This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky@horkylaw.commailto:ahorky@horkylaw.com.
Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein.
