I have written at length about performing residential evictions in Florida, including in-depth articles on issues like holdover tenants and sub-tenants. I have plans to write more articles on residential landlord tenant law and specifically the subject of residential evictions, but for this particular article I want to focus on commercial evictions. Since my office is in Sarasota County and I practice primarily in Sarasota County (although I also do represent clients in Manatee and Charlotte County, and will happily take cases there), I wanted to zero in on Sarasota County for purposes of writing this article.
Commercial Landlord Tenant Law vs. Residential Landlord Tenant Law
As a quick introduction, it’s important to distinguish the commercial (or “nonresidential”) section of the Florida landlord tenant statues from the residential section. The major difference between the two sections is that in the commercial landlord tenant section the parties are presumed to be more sophisticated, and the statutes allow for much greater freedom when it comes to the way commercial leases can be drafted and the kinds of clauses that can and cannot be included in a commercial lease. The legislators are presuming we have savvy business people behind these deals with access to lawyers and money, and we also aren’t dealing with the homes of people and their families.
Therefore, the law allows commercial landlords and tenants to draft commercial leases with pretty much any provisions they like as long as the basic rules of contract law are met. Contrast this with the residential section of the landlord tenant law, which reads more like a consumer protection statute and has much tighter regulations as to what can and cannot be written into a residential lease. My point with all of this is that with a commercial landlord tenant eviction, the lease controls, and the first place to look for guidance on any issue is the lease.
3 Major Routes for Eviction
Commercial landlord tenant law, much like litigation in general, is all about crafting the appropriate strategy and setting up the case properly. There are a lot of tools at the lawyer’s disposal to effect a proper eviction, and it’s critical that the lawyer discuss all the options with the client to hone in on the proper course of action. Below are the 3 major ways to remove a tenant.
1. Non-Payment of Rent
Non-payment of rent is the classic reason for removing a commercial tenant. When a tenant starts falling behind on rent, my advice is to move quickly. You can always reach an agreement after the suit has been filed, and you do not want to get in a position where your tenant is months behind on the rent because you felt sorry for them or tried to cut them some slack. It will only make the situation more difficult in the long run. Keep in mind that payment of the rent is a defense to these kinds of actions.
2. Material Breach of Lease (for some reason besides non-payment)
Sometimes you have tenants who are paying the rent, but are violating some other portion of the lease. If it’s a material breach of the lease you can evict the tenant on this basis. These are some of the trickier cases to try because you have to prove the breach. This can be more complicated to prove than mere non-payment of rent.
3. Holdover Tenants
A holdover tenant is a tenant who remains on the premises after the lease has terminated or expires. These are my favorite types of evictions, because the tenant doesn’t have the defense of payment available, and holdover cases are generally much easier to prove up than a material breach case. If you have a commercial lease that allows you to terminate the lease in the event of non-payment, my advice is to always exercise that option and evict on basis of the tenant holding over.
The Three Day Notice
The default rules in a commercial eviction for non-payment of rent requires a 3 day notice, just like in a residential eviction. And much like residential evictions, the 3 day notice needs to be done 100% correctly, otherwise you risk getting the case thrown out for a defective notice. Of course, we always have to look to the lease to see if there are any additional notice requirements. It is absolutely critical that whatever notice requirement is present is adhered to.
The Complaint
The next step in the process is to file your complaint (lawsuit) and serve it on the tenant. I tend to stay away from form pleadings and like to custom draft each pleading for each case. My goal with the complaint is to make the case easy for the judge to understand and to lay everything out clearly. If there is a written lease then you absolutely need to include a copy of the lease with the complaint. Same goes for any notices sent out to the tenants.
When sitting down to draft the complaint you also have to decide whether you are doing a simple action for possession or a hybrid complaint suing for possession and damages (which is often back rent). I ask for attorneys fees and court costs regardless of whether I am filing an action for possession only or a hybrid complaint. When deciding whether to sue a tenant for damages you have to consider the amount of money in controversy (the amount allegedly owed) as well as the collect-ability of the tenant. Cases over a few thousand dollars are typically not worth pursuing and you do not want to spend a lot of money suing an uncollectable tenant or business entity for a money judgment either.
On the subject of collectability, now is also the time to enforce any guarantees signed in connection with the lease.
Once the tenant has been served with the complaint the tenant has 5 business days to respond to the count for possession, and 20 days to respond to any counts for money damages, breach of guarantee, etc.
The Next Steps
The next steps in the case will vary greatly depending on if and how the tenant responds to the lawsuit. Obviously if the tenant fails to file a respond to the case, or work with me to get the matter quickly settled outside of court, then bad things will happen.
If the tenant does respond there could be one or several hearings. This could include a hearing to determine the amount of rent owed, or a final hearing (a small trial) on the matter.
Commercial Evictions in Sarasota – Final Thoughts
The following article only scratched the surface of the commercial eviction process here in Sarasota County. Landlord tenant cases move fast, and are all about strategy. The goal is always to limit the defendant’s options and accomplish the goals of the client as quickly and efficiently as possible. A good lease and properly set up case will greatly aid in serving those goals. I hope this article gave you a feel for the process of evicting a commercial tenant.
If you have questions regarding commercial landlord tenant law in Sarasota, Manatee, or Charlotte County, feel free to call my office at (941) 882-4367.
