>Only difference here is the change of date in the header.} > >Daily Development for Friday, December 12, 2003 >by: Patrick A. Randolph, Jr. >Elmer F. Pierson Professor of Law >UMKC School of Law >Of Counsel: Blackwell Sanders Peper Martin >Kansas City, Missouri >dirt@umkc.edu > >LANDLORD/TENANT; LANDLORD'S REMEDIES; >COLLECTION OF RENT; MITIGATION REQUIREMENT: Where >tenant fails to perform on lease, and even fails to take possession, landlord >nonetheless has the right to leave the premises vacant and sue for the rent >accrued within period measured by statute of limitations. > >Holiday Furniture Factory Outlet Corp. v. State of Florida,a Dept. Of >Corrections, 852 S. 2d 926 (Fla. App. 2003) > >Landlord and tenant entered into a written five year lease. Before the time for >possession had even commenced, however, tenant, a state agency announced >that it was rejecting the lease and would not take possession. Landlord left >the premises empty and made no attempt to relet. More than five years later, >after the term of the lease had run, landlord sued tenant for back rent >accumulated during the preceding five year period (the statute of limitations on >such claims in Florida.) > >Tenant argued that the landlord had never made necessary improvements to >the property, and thus had not performed its end of the bargain. But landlord >countered that it had either performed or was prevented from performing the >improvements by tenant's actions. > >The trial court concluded that as landlord had argued that it had satisfied its >preconditions to tenant liability on the lease (to the extent it could do so) as of >March, 1995, it was obligated to bring suit for breach of the lease within five >years of that date. > >The Florida Court of Appeals reversed, pointing out that this was not a suit >for damages for breach of lease but for rent on a lease that had never been >terminated. Although the landlord could not collect every penny of the rent, >since the claims for the first few months arose beyond the five year limitations >period, the landlord was permitted to reach back five years. > >Comment 1: Usually the landlord has a concern that a defaulting tenant will >be "judgment proof" or unavailable for suit, and wouldn't wait so long to sue. >But here the State of Florida was the defendant, so the landlord had some >confidence the tenant would still be there to sue. > >Comment 2: Many lawyers, and even more law professors, believe that the >"mitigation of damages" requirement has pretty much displaced the landlord's >right to leave the premises vacant and sue for the rent. In fact, in a recent >survey the author did in connection with the redraft of Friedman on Leases, >the author identified a relatively even split on this issue with regard to >commercial leases, although in residential leases the majority of states favors >the mitigation doctrine, in part because it is included in the widely adopted >Uniform Residential Landlord Tenant Act. > >Comment 3: What makes this case particularly interesting is that the case >makes no differentiation based upon the fact that the tenant had not yet taken >possession when it announced that it would not perform. In England and a >few American states, the courts differentiate between a formal lease and a >"contract to lease." In the latter case, a breach leads only to traditional >contract damages, as to which a duty to mitigate always applies. In England, >the true lease does not begin until possession But most American jurisdictions >don't recognize this distinction, and hold that the property relationship of a >lease comes into existence as of the moment the lease becomes binding on the >parties. > > >Items reported here and in the ABA publications >are for general information purposes only and >should not be relied upon in the course of >representation or in the forming of decisions in >legal matters. The same is true of all >commentary provided by contributors to the DIRT >list. Accuracy of data and opinions expressed >are the sole responsibility of the DIRT editor >and are in no sense the publication of the ABA. > > >Parties posting messages to DIRT are posting to a >source that is readily accessible by members of >the general public, and should take that fact >into account in evaluating confidentiality >issues. > >ABOUT DIRT: > >DIRT is an internet discussion group for serious >real estate professionals. 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