Do you have a commercial tenant who is withholding rent due to the landlord’s alleged failure to repair the premises? Do you have a commercial tenant withholding rent and claiming the premises are untenantable? Well, the good news for commercial landlords is that now it is clear that a tenant cannot withhold rent on such bases if it is continuing to occupy the premises.
In the recent case of Buyer’s Choice Auto Sales, LLC v. Palm Beach Motors, LLC, the Fourth District Court of Appeal clarified again that a tenant cannot simultaneously avoid the lease’s burdens while accepting the lease’s benefits by remaining in possession of the premises.
The facts of Buyer’s Choice were simple. When the landlord did not build the fence at the premises as promised, the tenant stopped paying rent and filed a lawsuit claiming the premises were untenantable. The trial court ruled in the tenant’s favor and the landlord appealed.
The appellate court held that the landlord’s failure to repair the premises did not render the premises untenantable. The appellate court also found that the absence of fencing could not have rendered the premises untenantable because the tenant had operated its business on the unfenced premises. Further, the court noted that if the event premises had been untenantable, the tenant could not have lawfully withheld rent because it failed to satisfy the requirements of Fla. Stat. § 83.201, which required: (1) tenant to declare the leased premises to be “wholly untenantable”; (2) tenant to provide the landlord with at least twenty days from the untenantability declaration to install fencing; and (3) to express tenant’s intent to withhold future rent until the fencing was installed. The appellate court determined that the tenant was obligated to pay all rent to the landlord when it occupied the premises.
This case is a huge victory for commercial landlords as it clarifies that tenants cannot have their cake and eat it too. The tenant must pay rent for all times it occupies and uses the premises.
Rosenthal Law Group is here to assist you for all your commercial landlord-tenant questions and commercial landlord-tenant litigation. You can reach us at www.rosenthalcounsel.com or 954-384-9200.
