Unlawful Commercial Evictions: A Cautionary Tale for Commercial Landlords Wanting to Use Self-Help to Retake Possession of Leased Property

Using “self-help” as a means to evict commercial tenants is no longer acceptable and likely to result in a lawsuit against the commercial landlord.  When a tenant fails to pay rent as it becomes due, breach appears to be undisputed.  After all, paying rent is typically why the tenant is allowed to occupy the leasehold in the first place.  Jumping to conclusions, it may seem reasonable for a commercial landlord to take actions to remove the tenant without a court order of possession because the court is probably going to grant eviction anyway.

However, this reasoning has resulted in tenants receiving judgments against their landlords for thousands of dollars—not the other way around.  The Florida Legislature has explicitly addressed this issue with Chapter 83 – Part I, Florida Statutes, which seeks to assist commercial landlords in quickly evicting their nonpaying tenants while also preserving the tenant’s due process rights.  This article explores the self-help pitfalls and statutory process which must be followed.

Landlord Beware! Self-Help is Not the Solution

When a commercial tenant stops paying rent, the “rough and tumble” self-help tactics can get a commercial landlord in trouble. A classic example of this occurred in Ardell v. Milner, 166 So. 2d 714 (Fla. 3d DCA 1964).  In Ardell, the commercial tenant stopped paying rent as it became due.  However, as is common in most disputes, there are two sides to every story.  The tenant claimed that it stopped paying rent because the landlord allegedly failed to supply adequate air conditioning and other services. Id. at 715.

In response to the nonpayment of rent, the landlord entered the premises, under cover of darkness, and changed the locks on all of the doors.  Id. at 715.  Effectively, the tenant was evicted from the premises and unable to enter.  That’ll get those rent payments flowing again, right? Wrong.

The tenant sued the landlord claiming that the tenant was unable to maintain its dental practice which resulted in damages to the dentist’s profession, a loss of patients, and deprivation of access to the dentist’s books, records and instruments.  Id.  Even though the commercial landlord argued that the tenant was in breach of the lease agreement, the court reasoned that “non-payment of rent does not as a general rule work a forfeiture and confers no right of reentry [to the landlord].”  Id. at 716.  The court provided that the “doctrine of self-help,” which would have allowed the landlord to reenter and take possession of the premises upon nonpayment of rent, was abandoned by the common law due to breaches of the peace that inevitably occur as a result of a landlord taking self-help measures.  Id. at 716.

The court pointed the landlord to Section 83.05, Florida Statutes, and ordered that those provisions must be followed when rent is not paid as it becomes due.  No matter what the lease agreement says, the court provided that the statute “should be read into every contract calling for payment of rent[.]”  Id. at 716.  Driving the point home, the court held that the statute provides the “exclusive” remedy for nonpayment of rent “even though the lease contains a provision permitting the landlord to reenter.”  Id. at 716 (emphasis in original); see also Vines v. Emerald Equip. Co., 342 So. 2d 137, 139 (Fla. 1st DCA 1977) (holding that the landlord breached the lease by changing the locks after the tenant prepared to remove trade fixtures, notwithstanding a lease provision requiring trade fixtures to remain on the property until termination of the lease).

When a landlord fails to utilize Chapter 83, Florida Statutes, in the event of rent nonpayment, the landlord can be forced to pay damages to the tenant caused by the landlord’s self-help.  In Ardell, the court held that the tenant was entitled to recover the difference between the rent the tenant had to pay under the lease agreement and the rent the tenant had to pay under a new lease agreement in order to operate its business (market value).  The tenant was also entitled to recover lost profits, provided that the lost profits could be ascertained with a reasonable degree of certainty.  Id. at 716.  Tenants in this situation may also be able to recover other damages plus attorneys’ fees and costs.

How Does Chapter 83 – Part I, Florida Statutes, Work?

Chapter 83 – Part I, provides the statutory framework for commercial landlords to pursue and evict tenants that are not paying rent, while offering tenants adequate due process of law to contest the eviction.

When Can a Commercial Landlord Evict a Commercial Tenant Under Chapter 83 – Part I?

Chapter 83 – Part I, allows commercial landlords to recover possession of the rented premises in the following circumstances:

1. When a tenant holds over and continues in the possession of the premises without permission of the landlord and after the lease expires;
2. When a tenant holds over and continues in the possession of the premises after the nonpayment of rent, provided the landlord gave the tenant 3-days’ written notice that rent must be paid or the rented premises must be turned back over to the landlord;
3. When a tenant holds over and continues in the possession of the premises after a material breach of the lease not involving the nonpayment of rent, provided the landlord gave the tenant 15-days’ written notice that the breach must be cured or the rented premises turned back over to the landlord;
4. When a tenant has surrendered possession of the rented premises; and
5. When a tenant has abandoned possession of the rented premises.

See §83.20, Fla. Stat. (2020); §83.05, Fla. Stat. (2020).

How to Pursue the Eviction Under Chapter 83 – Part I

Upon the nonpayment of rent, commercial landlords can sue the tenant under Chapter 83, Florida Statutes, seeking to evict the tenant and regain possession of the rented premises.  Section 83.232, Florida Statutes, governs the requirement for tenants to pay rent into the court’s registry during the litigation.  Contesting the amount due will not be enough to save the tenant from paying the rental amount into the court registry.  The parties can nevertheless move for a limited evidentiary hearing to determine the amount to be paid into the court registry.  See § 83.232(1)-(2), Fla. Stat.

However, determining the amount due and owing which must be deposited into the registry does not immediately entitle the landlord to recover to that amount.  In Premici v. United Growth Properties, L.P., 648 So. 2d 1241, 1242 (Fla. 5th DCA 1995), the tenant stopped paying rent as it became due because he contended that damage to the premises absolved him of the obligation to pay rent.  The landlord filed a motion for the court to determine rent owed and to require that amount to be paid into the court registry.  Id. at 1242.  The court required the tenant to pay rent into the court registry.  Id. at 1242.

When the tenant failed to do so, the landlord filed a motion for default against the tenant.  Id. at 1242.  The court entered a default against the tenant as it relates to possession of the rented premises, and then additionally entered final judgment against the tenant for the amount of the rent determined to be due and owing.  Id. at 1242.

On appeal, the Fifth District Court of Appeal reversed the trial court’s final judgment, clarifying that Section 83.232, Florida Statutes, only determines a right to possession of the rental property via summary procedure, and does not determine all claims related to the unpaid rent.  Id. at 1243-44.  The court reasoned that:

The statute is designed to remedy the problem of commercial tenants remaining on the premises for the duration of litigation without paying the landlord rent…. The statute means to say that if you do not claim you have paid the rent already, you must deposit rent into the court registry in order to preserve your right to remain on the premises.

Id. at 1243.  However, Section 83.232, Florida Statutes, has no authority beyond that determination of possession.  Id. at 1244.

Commercial Landlords Must Comply With Chapter 83 – Part I, to Evict Commercial Tenants for Nonpayment of Rent

The Ardell case illustrates the dangers of using self-help to evict a commercial tenant.  If a tenant ceases to pay rent as it becomes due, commercial landlords must comply with Chapter 83 – Part I, Florida Statutes, to evict the tenant.  If used correctly, Chapter 83 – Part I can help a commercial landlord quickly evict and remove a tenant while preserving the tenant’s due process rights.  However, as demonstrated in Premici, Chapter 83 – Part I, has its twists and turns. Commercial landlords must avoid fumbling the process to avoid incurring further losses, including unnecessary legal fees and potential exposure to liability for damages to the tenant.  To avoid these mistakes, commercial tenants should hire competent legal counsel that is well-versed in Chapter 83.