In short: A buyer of commercial property takes it subject to a tenant’s lease rights it knew about or would have found with reasonable inquiry, but not to an unrecorded side deal it had no reason to suspect. In this Fifth District appeal, International Drive Flea Market, LLC argued that the new owner of its Orlando building, Orlacross, LLC, was bound by a second version of a lease amendment that fixed its rent at a much lower amount through 2026. The trial court ruled for Orlacross after a bench trial. We could not locate the outcome on the docket, so this post describes what was argued.
The Facts
International Drive Flea Market leased about 46,000 square feet on International Drive in Orlando. The lease had renewal options and was amended several times. A third amendment dated January 1, 2010 existed in two versions, both signed by the tenant. The first version said the parties would enter into a lease extension. The second, which the tenant first produced with its answer in the eviction case, purported to fix the rent at a much lower amount through the initial term and all three five-year option periods, which would run to 2026.
Orlacross bought the landlord’s mortgage at a closing on December 30, 2010 and then acquired the property in early 2011. Before closing, its attorney reviewed the lease, the amendments and a tenant estoppel certificate signed by the flea market. The estoppel listed one third amendment and said the tenant had not entered into any other material modification of the lease. When the attorney asked the seller’s counsel by email whether an extension had been signed, the answer was “I don’t know.” Orlacross later sued to evict, and after a non-jury trial the court entered a final judgment for Orlacross. The points below are what the lawyers argued at oral argument, not findings by the appellate court.
- The flea market argued Orlacross had actual notice, because paragraph 2 of the estoppel certificate itself described the extended term and fixed rent, and that its owner had told Orlacross’s principal he had a long lease.
- It argued that the lawyer’s single email and “I don’t know” answer did not satisfy the buyer’s duty to inquire, so notice should be imputed.
- It argued the lease’s lender approval clause only gave the lender a right to foreclose, not a right to void the amendment, and that both versions were properly witnessed.
- Orlacross argued the trial court found, on competent evidence, that it had no actual or constructive notice of the second version and that its attorney’s due diligence was reasonable; the court also noted the tenant could have recorded a memorandum.
- It argued the amendment failed the statute requiring two subscribing witnesses for each party creating the interest, and that the tenant’s owner admitted at trial that the lease required the lender’s approval for amendments, which was never obtained. Its lawyer said each ground independently required affirmance, and the flea market’s lawyer largely agreed it had to win on all three.
The Decision
We could not locate the outcome on the docket. The video description lists case number 5D2014-3480, but that number belongs to a different case on the Fifth District’s docket, and we could not identify the correct docket number for this appeal. The trial court’s judgment for Orlacross is described above as the lawyers presented it.
The Law
Florida’s recording act, section 695.01, says an unrecorded lease for a term of one year or longer is not effective against a later purchaser for value without notice. Notice can be actual, constructive from the public records, or implied from facts that would lead a prudent buyer to ask questions. A tenant in possession can also put a buyer on inquiry about the tenant’s rights.
A tenant estoppel certificate is the tenant’s own statement of what its lease says. Buyers and lenders rely on it, and courts generally hold a tenant to what it certified. That is why the estoppel’s list of one third amendment, and its statement that there were no other modifications, mattered so much here.
Section 689.01 historically required a lease of real property for more than one year to be signed in the presence of two subscribing witnesses. The trial court read it to require two witnesses for each party creating the interest.
Current law (2026): The Legislature amended section 689.01 in 2020 so that no subscribing witnesses are required for a lease of real property or an instrument pertaining to a lease. The witness argument in this case would not arise under the current statute.
Lessons
- Tenants: if you sign a lease amendment that matters, record a memorandum of lease and list every version of every amendment in any estoppel certificate you sign.
- Buyers: an estoppel that lists amendments is a starting point, not the end of due diligence. If anything in it does not match the lease documents, ask the tenant directly and get the answer in writing.
- Check the lease for lender approval clauses. An amendment the lender never approved may be unenforceable against a later owner.
- When an appellant must win every independent ground to reverse, the odds are long. Both lawyers told the panel the flea market had to win on notice, the witness statute and lender approval.
Source: Oral argument before the Fifth District Court of Appeal in International Drive Flea Market, LLC v. Orlacross, LLC (appeal from an Orange County final judgment). We could not locate this appeal’s docket or outcome; the case number in the video description (5D2014-3480) belongs to a different 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.
🏪⚖️ Commercial Property Dispute
Go Deeper
- An Unrecorded Easement, a Seller Who Sat on the Buyer's Board (Lauramar v. Mel Fisher)
- "It Was Never Really a Lease": Estoppel Loses to the Written Terms (Bay Point Schools)
- Is a Landlord's "You Need to Relocate" Letter a Constructive Eviction? (In-Time v. Metromall)
Frequently Asked Questions
Does a new owner have to honor the old landlord's lease amendments?
Generally the buyer takes subject to lease rights it knew about or should have discovered. Under section 695.01, an unrecorded lease of a year or more is not good against a buyer for value without notice. In this case the trial court found the buyer had no notice of the second version of the amendment.
What is a tenant estoppel certificate and why does it matter?
It is a signed statement by the tenant listing the lease documents and terms, given so a buyer or lender can rely on it. The flea market’s estoppel listed only one third amendment and said there were no other material modifications, which the buyer used against the tenant’s later claim.
Does a commercial lease need two witnesses in Florida?
Not anymore. Since a 2020 amendment, section 689.01 says no subscribing witnesses are required for a lease of real property or an instrument pertaining to a lease. Older leases and amendments, like the 2010 amendment in this case, were litigated under the prior witness rule.
Should I record my commercial lease or a memorandum of it?
If the lease runs a year or longer and has valuable terms such as options or fixed rent, recording a memorandum gives notice to later buyers and lenders. The trial court here noted the flea market could have recorded a memorandum and did not.
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.
