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Constructive Eviction:  Is There Such a Thing Under Florida’s Commercial Landlord-Tenant Act?
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Constructive Eviction: Is There Such a Thing Under Florida’s Commercial Landlord-Tenant Act?

April 15, 2022 Banking & Financial Services Industry Legal Blog, Real Estate Development, Sales and Leasing Industry Legal Blog

Reading Time: 6 minutes


The commercial landlord-tenant act is set forth in Sections 83.001-83.251 of the Florida Statutes.  While the commercial landlord-tenant act does not specifically address whether wrongful/constructive eviction (“constructive eviction”) is a defense to an eviction or removal action (or grounds for a tenant to vacate the premises), case law supports that commercial tenants may have a claim or defense of constructive eviction under certain circumstances.  This article seeks to explore those circumstances and provide commercial landlords with information that may be helpful in avoiding constructive eviction claims by commercial tenants.

constructive eviction

Interference With a Tenant’s Beneficial Enjoyment of the Leased Premises

Constructive eviction may occur when a landlord’s wrongful acts or omissions deprive a tenant of possession of the premises or interferes with the tenant’s beneficial enjoyment of the premises.  Hankins v. Smith, 103 Fla. 892, 895 (Fla. 1931).  “It may constitute a constructive eviction if the landlord does any wrongful act or is guilty of any default or neglect whereby the leased premises are rendered unsafe, unfit, or unsuitable for occupancy in whole, or in substantial part, for the purposes for which they were leased.”  Id.

To mount a successful case of constructive eviction, a tenant must show there is “wrongdoing on the part of the landlord.” Sentry Water Sys., Inc. v. ADCA Corp., 355 So. 2d 1255, 1257 (Fla. 2d DCA 1978).  However, whether there has been a constructive eviction will depend on the specific facts of each situation.

For example, in Katz Deli of Aventura, Inc. v. Waterways Plaza, LLC, 183 So. 3d 374, 378 (Fla. 3rd DCA 2013), a tenant successfully argued that it was constructively evicted based upon continuous water intrusion, where the roof was beyond repair and needed to be replaced.  However, the landlord refused to replace the roof and only made minor and temporary repairs.  As a result, the leaks got progressively worse and turned into open flows of water into the premises preventing the use of the premises as a deli.

Additionally, in Barton v. Mitchell Co., 507 So. 2d 148, 149 (Fla. 4th DCA 1987), constructive eviction occurred where a landlord failed to add insulation to correct loud music and screaming from an adjacent space, which was being used as an exercise studio.  The loud music and screaming caused walls to vibrate and made paintings fall off the wall of a neighboring tenant, who used her space as a retail store selling patio furniture.  As a result of the loud music, screaming and vibrations, it was impossible for the tenant to operate her business.  The tenant made repeated requests over a ten-month period, but the landlord failed to remedy the situation.

Additionally, there are other examples of constructive eviction and sometimes grounds for constructive eviction may be intertwined with a breach of the terms of the lease agreement itself. However, each situation is different and must be evaluated on a case-by-case basis.  See Vines v. Emerald Equip. Co., 342 So. 2d 137, 139 (Fla. 1st DCA 1977) (holding that the landlord breached the lease agreement and wrongfully evicted the tenant when the landlord engaged in self-help by changing the locks on the premises and preventing the tenant from entering the premises); Rosen v. Needelman, 83 So. 2d 113 (Fla. 1955) (providing that the landlord failed to comply with its obligations under the lease agreement to maintain the roof and outside walls of the premises); C.f., Carner v. Shapiro, 106 So. 2d 87, 89 (Fla. 2d DCA 1958) (awarding damages to the tenant for loss of use of the premises and damages as a result of construction on the upper stories of a tenant’s office space); Hollywood Shopping Plaza, Inc. v. Schuyler, 179 So. 2d 573 (Fla. 2d DCA 1965) (providing that the landlord breached the exclusive use provision by leasing nearby property to a business selling competing merchandise).

Obligation on the Tenant to Provide Notice to the Landlord

In the situation where there is interference with a tenant’s ability to conduct its business in the premises, the best practice may be for the tenant to provide notice to the landlord of the interference and afford the landlord an opportunity to fix the problem.  See Barton v. Mitchell Co., 507 So. 2d 148, 149 (Fla. 4th DCA 1987) (finding constructive eviction where a tenant made repeated requests over ten-month period for the landlord to remedy the loud music, screaming, and vibrations from another tenant, which interfered with the tenant’s business).

Additionally, where the premises is wholly untenantable, Section 83.201, Florida Statutes, provides for the tenant’s ability to withhold rent upon notice to the landlord that the premises is wholly untenantable.  In this regard, unless the procedure is otherwise set forth in the lease agreement, prior to withholding rent, the tenant must: (1) give the landlord written notice declaring the premises to be wholly untenantable, (2) give the landlord at least twenty (20) days to make the described repair, and (3) state that the tenant will withhold rent until the repair has been performed. §83.201, Fla. Stat.  Once the repair is made, the tenant is required to pay the landlord the amount of rent withheld. §83.201, Fla. Stat.

If the landlord fails to repair and the premises is rendered “wholly untenantable,” the tenant is authorized to withhold rent and will have a valid defense against a landlord’s claim for unpaid rent.  However, when the tenant continues to occupy all or a portion of the premises, the premises is not “wholly untenantable.” See Cruise.com, Inc. v. Eller Drive Props., Inc., 813 So. 2d 254, 255 (Fla. 4th DCA 2002) (holding the tenant was not entitled to withhold the rent because the tenant’s employees continued to work on the premises and therefore the premises was not wholly untenantable, which is a statutory condition precedent to withholding rent).

Obligations on the Tenant to Timely Abandon/Vacate the Premises

To make a claim of constructive eviction, a tenant must abandon the premises within a reasonable time after the landlord’s wrongful act. Bass v. Wollitz, 384 So. 2d 704, 705 (Fla. 1st DCA 1980) (“[A] tenant who too long tolerates intolerable conditions in a leased building loses his privilege not to tolerate them any longer, so that, quitting the premises at last, he remains liable for rent to the end of the term”).  In Bass v. Wollitz, the trial court found that water intrusion from a leaking roof was so significant that it constituted constructive eviction.  However, the tenant remained in the premises for 4 years despite the leaking and as a result, vitiated any privilege he may have had to abandon the premises.

Conclusion

Whether a commercial tenant has a claim for constructive eviction will depend on the specific facts of each situation.  As such, commercial landlords need to be mindful of the potential claim for constructive eviction and the situations (such as those explained above) that may give rise to a claim for constructive eviction.  Likewise, commercial landlords need to understand what constitutes (and does not constitute) constructive eviction that would allow (or require) the tenant to vacate the premises.


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