Before starting a commercial eviction it is important for an attorney to analyze
the cause for the eviction, such as non-payment of rent, together with the requirements of the lease between the landlord
and tenant and applicable law. This typically begins by looking for “Notice”
requirements contained either in the lease or law.
The Florida legislature has divided landlord and tenant law into three general
sections, the First Part is “Non-Residential Tenancies” or in other words commercial tenancies. While the commercial and residential sections of the law look very similar, there are some very significant
differences and their application is also very different.
I believe one of the most significant differences is that the law in commercial
tenancies is “TENANT BEWARE”. Commercial tenancies are considered
the same as any other arms-length transaction between commercially sophisticated entities.
In other words each party, the landlord and the tenant, must look out for its own interests in the market place and
can contract in or out or most obligations and responsibilities that may arise out of their landlord – tenant relationship. This is a stark difference from the residential side, where the law clearly defines
the obligations of the landlord and the tenant and the law goes further to invalidate any agreement that purports to alter
the statutory rights of either party.
A clear example involving one of the more common landlord – tenant issues,
non-payment of rent, is the required 3-day notice. Both the residential and commercial
sections contain requirements for providing the tenant a “3-day notice of non-payment of rent”. The residential section contains very specific instructions for what the notice must contain, how
the 3 days are calculated and how it must be delivered. The commercial
section does not even contain any guidance as to what the 3-day notice should contain.
The commercial section merely makes reference to the 3-day notice as a requirement before an eviction is filed. To accentuate the difference between the commercial and residential sections, the
3-day notice in a commercial tenancy can be waived all together.
In some commercial tenancies the parties can agree in their lease or contract
that no notice will be required or the prior actions of the parties in dealing with each other may act as a waiver of any
notice requirements. In a residential setting the 3-day notice and the laws’
specific requirements can not be waived under any circumstances.
As stated above the parties to a commercial lease can contract how and what
notices will be required during the tenancy. In some instances we have found
that the tenant has contracted with the landlord to require that the landlord provide the tenant a longer period to cure the
non-payment of rent. In other words the landlord under the contract is required
to give the tenant 15 or even 30 days notice to pay or vacate before an eviction can be filed.
Again, as previously mentioned the actions of the parties can also be interpreted to define what notice and he length
of the notice that is required before an eviction can be filed.
It is essential that the notice requirements be analyzed prior to starting
case. Failing to meet notice requirements even in a commercial setting may subject
the case to being dismissed by the Court.
Please contact our office so that we may determine what the notice requirements
are in your case. We strive to bring every legal issue to a successful conclusion
and look forward to reviewing your matter. There is no charge for an initial
consultation, so contact us today.