Wills, Thomas A.

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University of Miami School of Law

University of Miami Law SchoolInstitutional RepositoryUniversity of Miami Law Review5-1-1956Landlord and TenantThomas A. WillsFollow this and additional works at: http://repository.law.miami.edu/umlrThis Article is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami LawReview by an authorized administrator of Institutional Repository. For more information, please contact library@law.miami.edu.Recommended CitationThomas A. Wills, Landlord and Tenant, 10 U. Miami L. Rev. 383 (1956)Available at: http://repository.law.miami.edu/umlr/vol10/iss2/15PART THREEProperty LawLANDLORD AND TENANTTHOMAS A. WILLS*This survey includes Florida Supreme Court cases reported fromJune 1953 through August 1955. No legislation appropriate to the Surveywas found.LIQUIDATED DAMAGESThe author of the previous Sune 1 stressed Stenor v. Lestor'-' andrelated cases3 involving the security deposit-liquidated damages problem.The judges who decided Kanter v. Safran4 and Hyman v. Cohen,5 (dis-cussed in this article), emphasized a similar problem in such a closelyrelated manner that for purposes of continuity and integration the followingportion of the previous survey is included:The first case to approach this problem was Stenor v. Lester.The facts were as follows: the lessee of a leasehold for a term offive years, at a rental of $11,200 per year, deposited $11,200 assecurity. The lease provided that the lessor should retain thedeposited security as liquidated damages for breach of any ofthe terms or covenants of the lease, or apply it as a pro tautaamount for the lessor's actual damages from such breach. Thecourt held that where a sum is to be kept as liquidated damagesor applying it against actual damages, such provisions will beconstrued as a penalty. Three cases followed, which prescntcdclosely correlative fact situations, and were decided in accordwith the Stenor case. However, in North Beach Investment v.Scheikowitz, the court held a similar provision to be valid asproviding for liquidated damages.In the Hyrnan case the judges referred to a distinction between aprovision for forfeiture of the deposit for the breach of any covenantin the lease, and a provision for forfeiture upon termination of the lease.They indicated that the former should not be construed as liquidated*Associate Professor, University of Miami School of Law.1. 8 MIAMI L.Q. 425 (1954).2. 58 So.2d 673 (Fla. 1952).3. Kaplan v. Katz, 58 So.2d 853 (VIa. 1952); Nash v. Bailey, 58 So.2d 6S0 (Fla.1952); Glyn v. Roberson, 58 So.2d 676 (Fla. 1952).4. 68 So.2d 553 (Fla. 1953).5. 73 So.2d 393 (Fla. 1954).MIAMI LAW QUARTERLYdamages, but that the latter might be so construed. The lease containeda provision for a cash bond to guarantee the performance of all thecovenants and for forfeiture of the bond if the lessor cancelled the leaseupon default by the lessee. The lease did not provide for forfeiture uponthe breach of any covenant by the lessee. The judges declared that therule of the Stenor case should not apply because the lease in that casecontained a provision for forfeiture upon the breach of any covenant.They attempted to clarify the situation with respect to related cases bythe following statement:We wish to make clear, then-and will repeat for emphasis-that where a lease provides for a deposit 'to secure the fullperformance' of all the covenants of the lease, or similar language,without providing for the forfeiture of the deposit for the merebreach of any of the covenants, but only upon the prematuretermination of the lease by the lessor for the default of the lessee,the cited rule (as to breach of covenants of widely varying im-portance) has no application to a determination of the questionof whether the parties have stipulated for a penalty or forliquidated damages. As noted above, it must be assumed thatthe lease in the Stenor case provided for forfeiture upon themere breach of a covenant, so that the rule was properly appliedin that case; but insofar as the latter decisions of this court whichwere decided on the authority of the Stenor case, to wit, Nashv. Bailey, Fla. 58 So.2d 680; Glynn v. Robertson, Fla. 58 So.2d676 and Kaplan v. Katz, Fla. 58 So.2d 853, may be construed tohold the contrary, they are hereby expressly modified to thatextent.A further point in the decision to the effect that the rule of theStenor case should not apply to the Hyman case, involved an inter-pretation of the Hyman case. This case provided for termination at theoption of the lessor upon the breach of a covenant by the lessee. Somemight consider this provision as tantamount to the Stenor provision. Thejudges argued that, in spite of the provision, the Hyman lease was differentin that there was only one event, the premature termination of the lease,which would result in forfeiture. They attempted to fortify the point byasserting that an attempted termination for breach of covenant mightbe enjoined. Some readers may be satisfied by these arguments; othersmay not.Following the usual generalities, the judges concluded that, at thetime of leasing, the damages were difficult to ascertain; the amount ofdeposit ($25,000-rent for one year) was not so high as to be a penalty;and thus the deposit was held to be liquidated damages.The judges in the Kanter case followed the generalization that aprovision for additional damages over the amount of the deposit is con-tradictory to the purpose of liquidation. They cited the Stenor case andheld that the security fund was not liquidated damages where the leaseLANDLORD AND TENANTprovided for a security fund which was labeled "liquidated and agreedupon damages" and provided that the lessor might make the lessee pay anyexisting damages if the actual damages exceeded the security fund.EFFECT OF SURRENDERBoth the Hyman and Kanter cases involved the effect of surrender bythe lessee.In the Hyman case the judges indicated that in the event the lesseetailed to pay rent and surrendered possession, the lessor had the choiceof three courses of action. He might treat the lease as terminated andresume possession for his own purposes, repossess for the account of thelessee and hold the lessee for general damages, or stand by and sue thelessee either for each rent installment as it became due or for the entirerent when it matured. The lessee was behind in the rent payments. Thelessor notified the lessee that he must pay or surrender possession. Thelessee gave up possession. The lessor rented the premises to a corporationformed by the lessor for that purpose. The lessor did not notify thelessee that the renting was for the account of the lessee. The judges in adeclaratory opinion determined that the lessor had chosen the first option-repossession for his own benefit with the intention that the lease beterminated rather than rescinded so that the lessee remained liable.In the Kanter case the judges reached a conclusion by determiningwhich of the three options the lessor chose and whether or not his sub-sequent conduct was consistent with his choice. The assignee of thelessee was behind in rent payments. He notified the lessor that he intendedto surrender possession. The lessor notified the assignee that the proposedsurrender was refused and if it became necessary to re-enter, the lessorwould do so for and on the assignee's account, and the assignee wouldbe held in general damages. Subsequently the lessor re-entered. Thejudges decided that where the assignee was put on notice of the conditionsof re-entry, the assignee would be held to have agreed to the expressconditions by his act of surrender, and that there was no need to considerimplied conditions of surrender by operation of law,The judges then considered whether or not the lessor subsequentlybehaved in a contradictory manner by re-entering for the account of theassignee. They considered the evidence insufficient and remanded thecase so that additional evidence could be accumulated.EFFECT OF LESsEE REMAINING IN POSSESSIONIn deciding Painter Y. Town of Groveland,G the judges cited, inter-pretated and applied Florida Statute Sections 83.04 (1953) and 83.06(1953). Section 83.04 provides:6. 79 So.2d 765 (Fla. 1955).MIAMI LAW QUARTERLY1 IOLIfNC OVER AiIR 'l'i:rIt 0 'IOFNANCY AT WIIENCE, ETC.\Vhen any tenancy shall have been created by an instrument ofwriting and the term of which such tenancy is limited thereinshall have expired and the tenant shall hold over in the possessionof said premises without renewing the said lease by some furtherinstrument of writing then such holding over shall be construedto be a tenancy at sufferance, and the mere payment or acceptanceof rent shall not be construed to be a renewal of the said term,but if such holding over be continued with tie written consentof the lessor then such tenancy shall become a tenancy at willunder the provisions of this law.The judges decided that where there was no written consent bythe lessor, the effect of the lessee holding over was not to renew thelease but to create a tenancy at sufferance, thus entitling the lessor topossession.Section 83.06 (1953) provides:RIcinT TO DEMAND DOUBLE RENT UPON REFUSAL TO DELIVER PossEssIoNWhen any tenant shall refuse to give up possession of thepremises at the end of his lease, the landlord, his agent, attorneyor legal representatives, may demand of such tenant double themonthly rent, and may recover the same at the expiration of everymonth, or in the same proportion for a longer or shorter timeby distress, in the manner pointed out hereinafter.All contracts for rent, verbal or in writing, shall bear interestfrom the time the rent shall become due, any law, usage or customto the contrary notwithstanding.The judges decided that where the lessee had reasonable groundsto believe, and did believe, that the lease was valid, and the pleadingsindicated that there was no demand for double rent, the lessee was notliable for double rent under the statute.The judges in Rosamond v. Mann' were concerned with whether ornot Section 83.04 modified the generalization, that in the absence ofagreement to the contrary, the character and terms of holdover are governedby the original lease in so far as applicable. They decided that limitationsin the original lease relative to transfer of a liquor license were applicableto the holdover and that Section 83.04 did not relieve the lessee of thelimitation.The judges in Leibowitz v. Christo8 stated that: "There are no decisionsin this State on this subject." The lessee had remained in possessionpast the term of the lease, had notified the lessor of his intention to renew,but did not execute a new lease since the original written lease providedfor "additional annual renewals." They observed that generally where a7. 80 So.2d 317 (Fla. 1955).8. 75 So2d 692 (Fla. 1954).LANDLORD AND TENANTlcase provides for an extension, a ncw lcasc is not required, but that whercthe lease provides for renewal, the judges in different jurisdictions do notagrec. InI a declaratory opinion, the judges here concluded that the dis-tinction between renewal and extension is too refined to be practical,and that a written lease was not required.FORMATION OF LFLsaIn Waldo v. U. S. Ramie Corp. the question of lien rights involvedthe determination of whether or not a lease had been formed. Thejudges decided that allegations of "belief" that a written agreement hadbeen executed were insufficient without production of the instrument orspecification of the terms.In South Dade Farms v. Peters'0 the original lease had six documentsattached which comprised letters exchanged between the lessor and lesseewherein they agreed to renew the lease. The lessee prepaid the rent underthe renewal. The judges held a renewal modifying the original lease wasformed which would support specific performance.COVENANTS THAT RUN WITH LAND--OPTION TO BuyIn Rosello v. Hayden"1 the assignee of the lessee obtained a decreefor specific performance of an option to purchase on credit. The judgesheld that where the option to purchase is on credit, but the full cashprice is tendered, the covenant runs with the land.EASEMENTSIn Robinson v. Feltus,'2 the decision relative to aii injunction wasresolved by an interpretation of the words "the south 12'." The wordswere interpreted as descriptive of the location rather than limiting thearea, and thus an encroachment which did not prevent ingress and egresswould not be enjoined.PROPORTIONMENT AND RECONSTRUCTION IN RECEIVERSHIP PROCEEDINGSBeach Resort Hotel Corporation v. Wieder'3 was an action to enjoincancellation of a hotel lease and for other relief, A receiver was appointed.The lease provided that the lessee would make improvements not to exceed$200,000 in cost. The improvements were to be paid by the lessee partlyin cash and the balance from profits. The judges decided that in orderto distribute the profits between the parties in receivership proceedings,a determination must be made as to the amount of permanent improve-ments beneficial to the lessor and the amount of other improvments9. 74 So.2d 106 (Fla. 1954).10. 69 So.2d 890 (Fla. 1954),11. 79 So.2d 682 (Fla. 1955),12. 68 So.2d 815 (Fla. 1953).13. 79 So.2d 659 (Fla. 1955),MIAMI LAW QUARTERLYcontracted by the lcssor separately. 'rhcy rulcd out in absence of fraud,or other equitable grounds, the lease would not be reconstructed. Threejudges dissented on the basis that by the majority decision, if the lessedid not pay for sums contracted by the lessor, tie lessor could use thefailure as an excuse to cancel the lease and still own the improvedproperty.BREACH OF COVENANT AND RIGHT OF TERMINATIONThe judges in Sunny Isles Boat Works v. North Miami Beach YachtBasin'4 decided that gradual depreciation does not constitute a breach ofcovenant to maintain docks and piles in a good and safe condition andgood repair.NEGLIGENCESeveral cases' 5 involving alleged negligence by the lessor were decidedaccording to the usual principles of tort law, and did not involve aspectsparticularly pertinent to this Survey.14. 70 So.2d 899 (Fla. 1954).15. Sampson v. Stanley Corp, 75 So.2d 186 (Fla. 1954) (ceiling plaster); Sellersv. Kilis, 74 So.2d 71 (Fla. 1954) (stairs); Ntssbaum v. Sovereign Hotel Corp., 72 So.2d814 (Fla. 1954) (lighting); Wilensky v. Perell, 72 So.2d 278 (Fla. 1954) (floor);Donin v. Goss, 69 So.2d 316 (Fla. 1954) (venetian blind); Gonet v. Evans, 66 So.2d53 (Fla. 1953) (stairs).

Landlord and Tenant

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Landlord and Tenant

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