In short: It depends on what the deal actually gives the other party, not what the paper calls it. Courts look at exclusivity, whether the right can be revoked at will, whether it can be assigned, and how much control passes. In Double Park, LLC v. Kaine Parking 125, LLC, a parking lot tenant let a condo developer use the lot under a “license” without the landlord’s consent; the trial court found it was a sublease, and the Third District affirmed without a written opinion on October 18, 2017.
The Facts
Double Park leased a commercial parking lot in Miami Beach from Kaine Parking under a 2008 lease. As the lawyers described it, paragraph 17 of the lease barred assignment or subletting without the landlord’s consent and gave the landlord the benefit of any sublease profit.
In 2013, a developer building a condominium across the alley, 120 Ocean, needed space for construction staging. Double Park signed an agreement letting 120 Ocean use the lot during weekday daytime hours, with a short shared period each evening, for $31,000 a month plus tax and a deposit of about $93,000. 120 Ocean placed a construction trailer on the lot. The landlord’s lawyer said Double Park was paying about $22,000 a month in base rent at the time. Double Park did not ask the landlord’s permission.
The trial court ruled on partial summary judgment that the agreement was a sublease. There was an earlier interlocutory appeal in the same case about disputed rent, and that opinion referred to the agreement as a sublease. After a final judgment for the landlord on damages, Double Park appealed again. The points below are what the lawyers argued.
- Double Park argued the agreement was a non-exclusive, revocable, non-assignable license, which the lease did not prohibit. It said parking spaces are normally licensed, it kept the right to move 120 Ocean among spaces, and 120 Ocean had to remove its property every evening.
- It argued it could not challenge the sublease ruling in the first appeal because a partial summary judgment was not appealable then, and that it had reserved the issue.
- On damages, it argued the court should have credited $2,500 monthly capital improvement payments and real estate tax payments as amounts paid under the lease, should have deducted sales tax, and should have measured profit over the whole term rather than month by month.
- The landlord argued the deal was exclusive during 120 Ocean’s hours, came with a large deposit, a fixed trailer and extensions, and that Double Park’s own manager testified it was called a license to avoid needing consent. It said the $2,500 payments repaid a loan documented by a promissory note, and the tax payments reimbursed taxes the landlord advanced.
The Decision
The Third District affirmed on October 18, 2017. The ACIS docket lists the disposition as “Per Curiam Affirmed,” with no written opinion. The same day it granted the landlord’s motion for appellate attorney’s fees and sent the amount back to the trial court. On December 5, 2017, it denied Double Park’s motion for rehearing, written opinion and certification. The mandate issued December 22, 2017.
Without an opinion, we do not know whether the court agreed the agreement was a sublease, decided the case on another ground, or rejected the damages points for some other reason. The trial court’s judgment stands.
The Law
Florida law treats a lease or sublease as a transfer of an interest in the property for a term. A license is a personal privilege to use property that generally does not transfer an estate and can be revoked. The label the parties use is not controlling. Courts look at what the document and the parties’ conduct actually show: exclusive possession, a fixed term and rent, the right to exclude others, and real control over the space all point toward a lease.
Anti-assignment and anti-subletting clauses are enforced as written in commercial leases. A tenant who tries to avoid one by drafting a “license” takes the risk that a court will see it as a sublease, and testimony about why the document was drafted that way can hurt.
The sublease ruling came on partial summary judgment under rule 1.510. Current law (2026): Florida’s summary judgment rule was amended effective May 1, 2021, to follow the federal standard, which makes summary judgment easier to obtain than it was when this case was decided.
Lessons
- If your lease bars subletting without consent, ask for consent before letting someone else use the space for a term, even if you plan to call it a license.
- A true license should be non-exclusive, revocable at will and tightly controlled by the licensor. Fixed hours of exclusive use, a large deposit and a fixed structure look like a lease.
- Keep loan repayments, tax reimbursements and rent clearly separated in your documents. The landlord here relied on a promissory note to show the $2,500 payments were a loan.
- If an issue is decided on partial summary judgment, preserve it expressly for the final appeal.
- A per curiam affirmance without an opinion decides only this case.
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Parking Lot Deal: Sublease or Revocable License? Exclusivity, Control, and Law of the Case
Read the Law on FloridaRules.net
The statutes and court rules discussed in this article, free to read on FloridaRules.net:
Go Deeper
- He Paid $5,000 for a Condo Parking License, Then Lost It (Keane v. President Condo)
- Does a Recorded Memorandum of Sublease Protect a Lis Pendens? (JHMB v. Charles Bernard)
- “It Was Never Really a Lease”: Estoppel Loses to the Written Terms (Bay Point Schools)
Frequently Asked Questions
What is the difference between a sublease and a license in Florida?
A sublease transfers a possessory interest in the space for a term, usually with exclusive use. A license is a personal, usually revocable permission to use the property. Courts look at the substance of the deal, not the label, as the trial court did in Double Park.
Can I sublet my commercial space without the landlord's permission?
Not if your lease requires the landlord’s consent, which most commercial leases do. Double Park tried to avoid its consent clause by calling its deal a license, and the judgment against it was affirmed.
Does calling an agreement a license make it a license?
No. Courts examine exclusivity, revocability, assignability and control. In Double Park, the tenant’s own manager testified the agreement was labeled a license to avoid the lease’s sublease clause.
Can a landlord take the profit if I sublet for more than my rent?
If the lease has a recapture or profit-sharing clause, often yes. As described at argument, the Double Park lease gave the landlord the benefit of sublease profit, and damages were measured by what the tenant received from the developer compared to what it paid the landlord.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate disputes, title problems and appeals from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
