Before starting a commercial eviction action 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 appear very similar, there are some very significant differences and their application is also very different.
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, nonpayment 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 nonpayment 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 cannot 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 the length of the notice that is required before an eviction can be filed.
It is essential that the notice requirements be analyzed prior to filing a commercial eviction action. Failing to meet notice requirements even in a commercial setting may subject the case to being dismissed by the Court.
Contact Us Today
Contact a landlord tenant attorney at Kleiner & Cazeau regarding any landlord tenant law matters.
Our attorneys can be reached by phone at (305) 517-1392 ext: 101 or by e-mail using our contact form.