It’s an unfortunate but harsh reality for commercial landlords. You will inevitably face an eviction situation at some point during your ownership of commercial property. However, while no landlord wants to experience an eviction scenario, you should be prepared for it. The first step is having a basic working knowledge of the commercial eviction process. This blog article series will tell every commercial landlord what needs to be known about the process.
The first decision to be made is how to deal with the tenant who has defaulted on rent. If you choose to evict them, there are generally three options upon the tenant’s default:
- A landlord can retake possession and try to rent out the property, and then hold the former tenant liable for any difference between the former tenant’s rent and the new tenant’s rent;
- A landlord can retake possession of the property for its own use; or
- A landlord can do nothing and proceed with an action for damages against the tenant as each rent payment comes due, or at the end of the tenancy for the entire sum remaining under the lease’s term.
Commercial Evictions: Option 1
The first option is the generally preferable option. It is attractive for two reasons:
- it allows you to get a new, paying tenant in the space
- the former tenant will remain liable if you are unable to negotiate a rent equal to what the former tenant was paying.
While this option requires a landlord to make a good faith effort to re-let the property, this is what you would likely do anyway, so that requirement is not much of a burden.
Commercial Evictions: Option 2
The second option is usually not attractive. That’s because it’s rare you will have the need to use your own commercial property.
Commercial Evictions Option 3
The third option is generally not chosen by landlords.
Landlord To Tenant Communication
However, any landlord can choose to try and work with their tenant before proceeding to eviction. In this scenario, you should make sure to follow a few simple steps to protect yourself in the event the efforts to get the tenant caught up on its outstanding rent are unsuccessful.
First, make sure to communicate to the tenant in writing. Also, make sure there has been no waiver of the default and no change in the terms of the parties’ lease. Under some circumstances, Florida law will deem a lease orally modified, which stands to affect a landlord’s ability to evict, a scenario landlords obviously want to avoid.
Serving A Statutory Notice Of Default
Second, you should serve the tenant, via process server, with a statutory notice of default,. That’s regardless of whether the default is for failure to pay rent or for some other non-monetary violation of the lease’s terms. If the lease’s terms are silent on the issue of notice, a landlord must provide a three-day notice to a tenant prior to institution of eviction proceedings for a failure to pay rent. A landlord must also provide fifteen days’ notice if the default is for a non-monetary reason. All notices, whether three-day or fifteen day, should include:
- The basis for default;
- The outstanding rent owed (if any) and where it is to be paid;
- Date of default and the time to cure (if any); and
- Any other information required by the terms of the lease. Having served the notice, if the parties are subsequently unable to resolve the default, the landlord is ready to instantly move for eviction.
The next blogs in this series will discuss ways for the landlord to secure fixtures on the property, considerations to be made when pursuing eviction in the courts, and the damages available to landlords upon a tenant’s default.