In short: Not when the lease makes delivery of a default notice a condition of suing and the notice was not delivered. In Miami Fourth, LLC v. GC Lounge, LLC, a landlord that bought a Miami-Dade building with a nightclub lease in place sued to evict the tenant for lapsed insurance, but its certified-mail notice came back unclaimed. On March 19, 2014, the Third District affirmed the judgment for the tenant on the notice issue and vacated the trial court’s rulings on the merits as premature.
The Facts
Miami Fourth, LLC bought the property on December 4, 2012, subject to an existing lease with GC Lounge, LLC, which operated a nightclub there. The lease required the tenant to carry insurance, and the tenant did not have it in place.
The lease required the landlord to give 30 days’ notice and an opportunity to cure a default, sent “by certified mail, return receipt requested, to the parties’ respective addresses set forth in the preamble” of the lease. The landlord’s counsel mailed a default notice on December 12, 2012. According to the argument, the envelopes came back marked unclaimed and unable to forward.
The landlord sued for eviction and damages. The damages count was set aside for a later trial and only the eviction count was tried. The trial court found the landlord did not satisfy the notice requirement and did not prove a material breach, and entered judgment for the tenant. The points below are what the lawyers argued on appeal (No. 3D13-2311).
- The landlord argued the lease required only that the notice be sent by certified mail to the address, not that the tenant actually receive it, and that a tenant cannot defeat notice by failing to claim its mail.
- It argued insurance is a material term of a commercial lease, that coverage back to December 4, 2012 had been available, and that the tenant chose not to buy it.
- The tenant argued there was no proof the notice was delivered, only the sender’s secretary’s testimony about returned envelopes, and that its principal credibly testified it never received the notice or any pickup slip.
- The tenant said it obtained coverage within days to weeks of being served with the lawsuit, and argued a lapse with no claims was not material enough to forfeit a lease with years remaining.
The Decision
In a written opinion filed March 19, 2014, the Third District affirmed in part and vacated in part. It held that competent, substantial evidence supported the trial court’s finding that the landlord did not deliver the default notice to the tenant’s address as the lease required. An appellate court does not reweigh that kind of evidence.
Because delivering the notice was a contractual condition precedent to filing suit, the court held that any ruling on the merits of the landlord’s claims was premature, and it vacated that part of the judgment. The opinion did not decide whether the insurance lapse was a material breach. Rehearing was denied on April 11, 2014.
The Law
Commercial leases in Florida are governed mainly by their own terms and by Part I of chapter 83. When a nonresidential tenant fails to cure a material breach other than nonpayment of rent after written notice, section 83.20 allows the landlord to recover possession. A lease that sets its own notice and cure procedure, as this one did, controls how notice must be given.
A notice-and-cure provision is often a condition precedent: the landlord must satisfy it before it can sue. If the landlord cannot prove it did so, the eviction fails without the court deciding whether the tenant breached.
The landlord takes possession through the court process in section 83.21, which uses the summary procedure of section 51.011. The landlord bears the burden of proving the notice the lease requires.
Lessons
- Landlords: send default notices every way the lease allows, and consider hand delivery or posting in addition to certified mail. Keep the postal tracking records, not just the envelope.
- If a notice comes back unclaimed, send it again before filing suit. Starting over costs weeks; losing the case costs much more.
- Buyers of tenant-occupied buildings should check the lease notice clause and update the notice addresses at closing.
- Tenants: fix a default as soon as you learn of it. Curing quickly helped this tenant argue the breach was not material.
- Findings about what was or was not delivered are factual. An appellate court will not reweigh them if evidence supports the trial judge.
Source: Miami Fourth, LLC v. GC Lounge, LLC, No. 3D13-2311 (Fla. 3d DCA Mar. 19, 2014); ACIS docket.
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.
🚨 Bought the Building With a Nightclub Lease in Place — Then Sent the Cure Notice
Go Deeper
- Commercial Lease Fights in Florida: Lockouts, Holdovers and One Word in the Lease
- Is a Landlord's "You Need to Relocate" Letter a Constructive Eviction? (In-Time v. Metromall)
- Is Sharing Your Leased Lot a Sublease or a License? (Double Park v. Kaine Parking)
Frequently Asked Questions
Can a commercial landlord evict me if I never received the default notice?
If the lease requires notice and a chance to cure before suit, the landlord must prove it gave that notice the way the lease requires. In Miami Fourth v. GC Lounge, the trial court found the notice was never delivered to the tenant’s address, and the Third District affirmed the judgment for the tenant.
Is certified mail enough for a lease default notice in Florida?
It depends on the lease wording and the proof. Here the lease required certified mail delivered to the tenant’s address, and the returned envelopes did not prove delivery. Sending by more than one method avoids the problem.
How long does a Florida commercial tenant have to cure a lease default?
Whatever the lease says. When the lease is silent, section 83.20 gives a nonresidential tenant 15 days after written notice to cure a material non-rent breach. This lease gave 30 days.
Is failing to carry insurance a material breach of a commercial lease?
It can be, and the landlord argued it was. The Third District did not reach the question in this case because the landlord had not satisfied the notice requirement, so it vacated the trial court’s ruling on materiality as premature.
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.
