Breaking a lease is considered a breach of contract, and you may have to pay a penalty to do so, unless the law prohibits penalties for your specific situation.
Video: What Do Commercial Real Estate Attorneys Do? FAQ’s With Roy Oppenheim Full Transcript: So one of the questions we get is what does a commercial real estate attorney do? And that’s a very broad question, of course, commercial real estate attorneys are currently involved both in representing buyers, they’re involved in representing sellers, and they’re also involved in representing the bank who’s lending the money to a transaction, and so really it’s three questions. So let’s start off with what a bank lawyer is going to do when they’re lending money on the acquisition of a commercial real estate. And the answer is really simple. They’re going to make sure that the bank is getting good collateral, that the documents are executed properly, that they’re getting a title opinion. Excuse me, a legal opinion from usually the buyers’ counsel confirming that the representations that the buyer made are true and correct, and more importantly, they’re going to make sure that the zoning’s okay. Oppenheim Law | Commercial Real Estate Attorneys Fort Lauderdale 2500 Weston Rd #404 Fort Lauderdale, FL 33331 954-384-6114 There’s no environmental problems, that the leases are all in place. And that there are no other outstanding potential issues that you could have, such as like lead paint or asbestos which are all part of the environmental area. But also that the place is zoned properly, that the people could can occupy the property and can run their businesses appropriately, so that they’ll be enough cash flow to pay for the mortgage. So that’s typically what a bank lawyer does. And then, of course, they negotiate the mortgage documents. And of course, they review the title insurance and they review the closing statement. And they’re basically protecting the bank’s interest. So now let’s talk about what the buyers’ lawyers do because they do something similar. They want to make sure that all the issues that the bank’s concerned about are resolved. And of course, they want to resolve it not just for the bank but also for themselves, so they want to make sure that there’s no zoning problems, that there’s no land use issues, that there no environmental issues. And of course, they’re going to negotiate the loan for the buyer with the mortgage company or the bank. And so it’s going to be some negotiations there over lots of terms and conditions and over covenants and various representations, and so the buyers’ attorneys are going to do that. Of course, the buyers’ attorney is also going to make sure that the title is clear. They’re going to review the title and insurance policy, and make sure the type of commitment. What Do Commercial Real Estate Attorneys Do? And then they’re also going to make sure that there are title issues, that those issues get cleared before closing. And of course, the buyers’ attorney is also going to negotiate the contract with the seller to make sure that they’re getting a fair deal, and then everyone knows who’s on first and who’s paying for what, and that deal is going to fly. And of course, they’re going to make sure that there any tenants, that the tenants have confirmed that their rent is not in default, and that the lease is not in default, and the landlord’s not in default. Those are called estoppel letters that typically get a sheet to tenant. And so that’s what the buyers’ attorney is going to do. So finally, what is the sellers’ attorney doing? The sellers’ attorney is going to do everything that the buyer and the bank is asking the seller to do in order to get the deal done. If it’s a title issue, the seller is going to help clear the title problem. They’re going to have to help get all the tenants to sign the estoppel letters and make sure that the tenants are happy because if they’re not happy, then the buyers’ not going to be happy, and the banks not going to be happy. And of course, the seller’s going to negotiate the contract between the buyer and the seller, as it relates to the actual purchase of the real estate. And I think that’s it for now. Thanks. Areas Of Commercial Litigation Business Torts Contract Disputes Corporate Governance Intellectual Property Insurance Coverage Partnership Disputes Commercial Real Estate Residential Real Estate Transactions for Buyers Residential Real Estate Transactions for Sellers Lender Representation Real Estate Development Commercial Real Estate Commercial Landlord/Tenant Commercial Loan Workouts Oppenheim Law | Commercial Real Estate Attorneys Fort Lauderdale 2500 Weston Rd #404 Fort Lauderdale, FL 33331 954-384-6114 Originally posted on Oppenheim Law: https://www.oppenheimlaw.com/news-resources/videos/what-do-commercial-real-estate-attorneys-do/ (What Do Commercial Real Estate Attorneys Do?)
CASE STUDY One Utah landlord learned this the hard way when, after winning her case with the district court, lost a substantial portion of her award on appeal. The landlord originally received an award of more than $63,000, which included triple the amount of rent due (known as "treble damages") under the unlawful detainer laws. On appeal, the tenant challenged the award of treble damages on a super-technical argument, and won. The tenant argued that the document the landlord had originally sent the tenant to notify the tenant of the lawsuit was invalid. The reason: Although it listed the correct number of days the tenants had to file an answer, the landlord had typed the number rather than writing it by hand as required by law. The landlord asked the court to overlook the technical error. After all, the number had been correct. But the court refused, calling the mistake "fatal" to the landlord's unlawful detainer claim. The court ultimately upheld the remainder of the landlord's judgment against the tenant, but by refusing to award treble damages, the court gutted one of the landlord's best remedies against her contract-breaching tenant. GETTING HELP Whether you are a landlord seeking to evict a deadbeat tenant, or a tenant seeking to protect your rights from an abusive landlord, make sure you know and follow the rules closely. Most of those rules can be found starting in the Utah Code section 78B-6-801. Additional self-help can be found on the court's website: https://www.utcourts.gov/howto/landlord/eviction.html. Because mistakes can be costly, it pays to get the help you need to get it right. If you have any questions, feel free to give me a call.  See Koerber v. Mismash, 2015 UT App 237, 359 P.3d 701.  http://www.le.utah.gov/xcode/Title78B/Chapter6/78B-6-P8.html
Practitioner's Check List of Areas of Concern and Due Diligence for a Commercial Lease 1. Address of Property 2. Zoning of Property 3. Term of Lease 4. Rent a. If not flat, then what type? 5. Deposits 6. Expiration 7. Renewal Option 8. Floor Area 9. Commencement Date 10. Early Termination 11. Improvements 12. Prohibited Uses 13. Tenants Use 14. Exclusive Use 15. Title 16. Taxes 17. Insurance 18. Utilities (Direct) 19. Maintenance and Repairs 20. CAM (Common Area Maintenance) 21. Signage 22. Parking 23. Landlord Inspections 24. Vacation of Premises 25. Exterior and Structural Changes 26. Surrender 27. Quiet Possession 28. Landlord's Repairs 29. Hazardous Materials 30. ADA Compliance 31. Landlord Services 32. Defaults (Tenant-Landlord) 33. Estoppel Certificate 34. Condemnation 35. Fire or Other Casualty 36. Liability Insurance, Worker's Compensation, Property 37. Waiver of Subrogation 38. Notices 39. Indemnity 40. Co-Tenancy 41. Right of First Refusal 42. Not a Joint Venture 43. Successors and Assigns 44. Waiver 45. Memorandum of lease (Record) 46. Holding Over 47. Interpretation of Agreement 48. Attorney Fees 49. Broker's Commission 50. Choice of Law 51. Arbitration/Mediation When should you seek help? It is vital to a the success of both negotiations of and fulfillment of a lease when an attorney is consulted early in the transaction. There are countless pitfalls and unwritten rules of law that attorneys have been trained to know and recognize. These pitfalls and unwritten rules of law are often not overt and can produce unintended obligations and consequences. While no ordinary person can be expected to know these pitfalls and unwritten rules, it does not provide a viable excuse or defense against a party's claim.
Which Door to Choose? Everyone is familiar with an eviction, but very few people have heard of an "unlawful detainer" or an "ejectment", even seasoned real estate veterans. Each has a unique purpose and stems from and applies to a different set of facts. Countless evictions have been filed that are ultimately dismissed because it is not the proper cause of action to remove the offending "squatter", leaving the owner befuddled and sitting before an attorney, dismissal in hand, questioning the impartiality and integrity of our judicial system in Florida. So, what's the difference? What do I say to the frustrated client sitting before me? "You filed the wrong action, this is why, and here's what needs to be done." Eviction (Fla. Stat. 83) An eviction action, which is governed by Chapter 83, Fla. Stat., only applies to situations where a landlord-tenant relation exists, which is formed, typically, by an agreement, oral or written, to pay "rent" in some form. This is usually established by a written lease agreement, but can also be shown by the payment of monies, whether periodic or in a lump sum, from the tenant to the landlord, or the payment of certain utilities or other expenses directly associated with the property. In the event the tenant fails to perform as agreed, an eviction can be filed, seeking to remove the tenant. A plaintiff seeking an eviction is entitled to summary procedure, which allows for a swift resolution to the dispute and prompt removal of the tenant, if successful, by the issuance of a writ of possession. This may seem obvious and simple. But certain sets of facts often present themselves which muddy the water. Unlawful Detainer (Fla. Stat. 82) An unlawful detainer action is very similar to an eviction, and is also afforded the benefit of summary procedure, so when does it apply? Take the common example of significant others (unmarried) living with each other in a property owned by one with no formal obligation of the non-owner to pay any utilities or rent. A break-up ensues. The non-owner party refuses to leave. Can the owner evict? No. The proper cause of action would be an unlawful detainer, which is governed by Chapter 82, Fla. Stat. An unlawful detainer action likewise applies to this unfortunately common situation: a child, now of majority age, lives with his/her parents, is not obligated to pay rent or any bills, and consistently engages in behavior that angers the parents who own the property; a volatile relationship evolves and the son/daughter refuses to abandon the luxury of a free place to stay. The disgruntled parents must now file an unlawful detainer action against their own son/daughter. In essence, this cause of action applies to situations where friends, family members, significant others, or other persons are allowed to stay on a premises for a certain amount of time or under certain conditions, with no obligation to contribute monetarily or otherwise, and then refuse to leave after the end of the agreed upon time or the violation of some condition. There is no rental agreement and a landlord/tenant relationship does not exist, but there's a solution through an unlawful detainer when the the only issue is possession. Ejectment (Fla. Stat. 66) Sometimes, however, in situations where a party refuses to leave a certain premises, the refusal is predicated upon some claim, whether frivolous or meritorious, that said person has some interest in the property that transcends mere "possession". When this arises, the next statutory creature must be summoned - the ejectment. An ejectment is the most complicated and lesser known cause of action of the three. It is governed by Chapter 66, Fla. Stat. Due to the inherent complexity of the suit, summary procedure is not applicable, and a suit for ejectment not only can be litigated for protracted periods of time, but it is also (usually) far more costly than an eviction or unlawful detainer action. In an action for ejectment, which must be filed in circuit court, the Plaintiff must "deraign" (prove) that he/she/it has valid title to the subject premises in the complaint. Unlike an eviction or unlawful detainer, only the purported owner of the property may bring an action in ejectment. Like an unlawful detainer, an ejectment involves the removal of some person/entity who does not possess the property by virtue of a rental agreement. The main difference between an unlawful detainer and the much more complicated ejectment is that the defendant in an action for ejectment, as stated above, is claiming some right, interest, or title to the property. This is the reason why the Plaintiff must prove up his/her title in the complaint. If an unlawful detainer is filed, and the defendant raises a title issue as a defense, then the action will be stripped of its right to summary procedure, and removed to circuit court, with an order that the complaint be amended to assert a claim for ejectment. Words of Caution and Conclusion Sometimes, the choice between the three causes of action explained above rests on a simple fact. The law regarding possession is not as clear as one may initially think. It is always wise to consult with an attorney experienced in real estate law before embarking on a quest to remove an unwanted individual from your property. Although most clerks of court provide free forms online for an eviction, unlawful detainer, and even ejectment, there are many variables one must consider before choosing which avenue to assume. If you're facing circumstances warranting an action to remove a tenant/occupant from a property, it cannot hurt to seek advice prior to moving forward. As they say, an ounce of prevention is worth a pound of cure, as nothing is ever as simple as it initially seems.
This video by Florida Bar Board Certified business litigation expert David Steinfeld, Esq. explains the different treatment between commercial and residential real estate under Florida law, addresses the topic of pre-closing due diligence, and some of the commonly litigated issues in commercial real estate transactions. Additional videos and articles on business law, electronic discovery, litigation holds, and real estate are accessible at www.ThePalmBeachBusinessLawyer.com
Breaking a lease agreement is a serious decision with potentially high costs. Learn when you can break a lease, and how to lessen the consequences.
by attorney Ryan C. Ollis
Whether you have to relocate for a job, lose your roommate, or simply can’t afford to stay, consider these things before breaking an apartment lease.