Bre Mariner Marco Town Ctr., LLC v. Zoom Tan, Inc., 2016 U.S. Dist. Lexis 56665 (M.D. Fla 2016) citing Jimmy Hall's Morningside, Inc. v. Blackburn & Peck Enters., Inc., 235 So.2d 344 (Fla 2d. DCA 1970). Here the Debtor surrendered the property to Creditor, Sweeney and Connolly Gulf Realty, LC, and listed the amount as contingent, unliquidated, unknown and subject to setoff as they would be entitled to an offset relating to proceeds obtained from reletting the leased premises during the remainder of the lease term.
The law in Florida is clear that a lessor is prohibited from retaining accelerated rent and proceeds from reletting. Bre Mariner Marco Town Ctr., LLC v. Zoom Tan, Inc., 2016 U.S. Dist. Lexis 56665 (M.D. Fla 2016) citing Jimmy Hall's Morningside, Inc. v. Blackburn & Peck Enters., Inc., 235 So. 2d 344 (Fla 2d. DCA 1970). Here the Debtor surrendered the property to Creditor, Sweeney and Connolly Gulf Realty, LC, and listed the amount as contingent, unliquidated, unknown and subject to setoff as they would be entitled to an offset relating to proceeds obtained from reletting the leased premises during the remainder of the lease term.
further liability on the part of the lessee; or the lessor may retake possession of the premises for the account of the lessee, holding the lessee liable for the difference between rental stipulated to be paid under the lease agreement and what, in good faith, the lessor is able to recover from a reletting; or the lessor may stand by and do nothing, holding the lessee liable for the rent due as it matures, which means all remaining rent due if there is an acceleration clause and the lessor chooses to exercise the right to accelerate.Coast Fed. Sav. and Loan Ass'n v. DeLoach, 362 So. 2d 982, 984 (Fla. 2d DCA 1978) (citations omitted); see also Jimmy Hall's Morningside, Inc. v. Blackburn & Peck Enters., Inc., 235 So. 2d 344, 345 (Fla. 2d DCA 1970). "[T]hese remedies are not established as the sole remedies which may be provided for lease breaches, but are intended to supply remedies when none are provided in the lease or when broader contractual lease remedies violate public policy." Chandler Leasing Div., Pepsico Serv. Indus. Leasing Corp. v. Fla.-Vanderbilt Dev. Corp., 464 F.2d 267, 271 (5th Cir. 1972).
After Williams, many court opinions repeated essentially the same remedies. See, e.g., Coast Fed. Sav. & Loan Ass'n v. DeLoach, 362 So.2d 982, 984 (Fla. 2d DCA 1978); Geiger Mut. Agency, Inc. v. Wright, 233 So.2d 444, 447 (Fla. 4th DCA 1970); Jimmy Hall's Morningside, Inc. v. Blackburn & Peck Enters., Inc., 235 So.2d 344, 345 (Fla. 2d DCA 1970); Diehl v. Gibbs, 173 So.2d 719, 720 (Fla. 1st DCA 1965); Wagner v. Rice, 97 So.2d 267, 270 (Fla. 1957); Hyman v. Cohen, 73 So.2d 393, 396 (Fla. 1954). In 1987, these remedies were codified in Chapter 83, Part II ("The Florida Residential Landlord and Tenant Act").
We affirm the final judgment in all respects except one. While City Center validly exercised its option to seek accelerated rent from Horizon, it cannot collect accelerated rent from Horizon, relet the premises to a third party during the remainder of the lease term, and retain those rental proceeds as well. See Blimpie Capital Venture, Inc. v. Palms Plaza Partners, Ltd., 636 So.2d 838, 840-41 (Fla. 2d DCA 1994);Jimmy Hall's Morningside, Inc. v. Blackburn Peck Enters., Inc., 235 So.2d 344, 346 (Fla. 2d DCA 1970); Quintero-Chadid Corp. v. Gersten, 582 So.2d 685, 688-89 (Fla. 3d DCA 1991). Any rental proceeds received by City Center from reletting the premises during the remainder of the lease term must be applied against the accelerated rent due from Horizon. See Jimmy Hall's, 235 So.2d at 346.
However, upon the defendants' timely motion for rehearing, the trial court reversed its earlier ruling and found that the landlord had elected her remedy by suing to recover the liquor license in the 1987 declaratory judgment action and, therefore, could not recover unpaid rent under either the lease or the guaranty. The trial court relied on Jimmy Hall's Morningside v. Blackburn Peck Enterprises, 235 So.2d 344 (Fla. 2d DCA 1970). The trial court entered final judgment for defendants; we reverse.
The lessor may treat the lease as terminated and retake possession for his own account, thus terminating any further liability on the part of the lessee; or the lessor may retake possession of the premises for the account of the lessee, holding the lessee liable for the difference between rental stipulated to be paid under the lease agreement and what, in good faith, the lessor is able to recover from a reletting; or the lessor may stand by and do nothing, holding the lessee liable for the rent due as it matures, which means all remaining rent due if there is an acceleration clause and the lessor chooses to exercise the right to accelerate. Williams v. Aeroland Oil Co., 155 Fla. 114, 20 So.2d 346 (1944); Jimmy Hall's Morningside, Inc. v. Blackburn Peck Enter., Inc., 235 So.2d 344 (Fla. 2d DCA 1970). Clearly, pursuant to both Florida law and the terms of the lease, appellees could have terminated and assumed to do nothing further and appellants would have been liable for the mortgage payments as they became due. Appellees did not elect that alternative.
See also Kanter v. Safran, Fla. 1953, 68 So.2d 553, 557-558; Diehl v. Gibbs, Fla.App. 1965, 173 So.2d 719, 720. Jimmy Hall's Morningside Inc. v. Blackburn Peck Enterprises Inc., 235 So.2d 344 (Fla.Dist.Ct. of Appeal, 2d Dist. 1970). See also Hyman v. Cohen, 73 So.2d 393 (Fla. en banc 1954).
A judgment of eviction does not necessarily terminate a lease for all purposes. Under Florida law, if a landlord retakes possession without terminating, it may hold the tenant responsible for the difference between the rent under the lease and the amount the landlord receives from reletting the premises. See Jimmy Hall's Morningside, Inc. v. Blackburn Peck Enterprises, Inc., 235 So.2d 344, 345-46 (Fla. 1970) (landlord may retake possession on account of the tenant subject to a duty to mitigate); Hudson Pest Control, Inc. v. Westford Asset Management, Inc., 622 So.2d 546, 548 (Fla. 5th DCA 1993). The Court disagrees, however, with the conclusion that absent termination, a lease may be assumed if there was a prepetition final judgment of eviction.
r not the Leases between the Debtor and the Airport Authority were properly terminated prepetition. It is the well established law of this State governing the relationships of landlords and tenants on commercial leases that, upon default or breach of the lease agreement by lessee, the lessor has the following options: "(1) the landlord may treat the lease as terminated and retake possession for its own account, thus terminating any further liability on the part of the lessee: (2) the lessor may retake possession of the premises on account of a lessee, holding the lessee liable for the difference between rental fixed by the lease and the amount which in good faith the lessor was able to recover as mitigation from reletting the premises; or (3) the lessor may stand by and do nothing, holding lessee liable for full rent due if there is an acceleration clause, and the lessor has the right to exercise acceleration."Coast Fed. Sav. Loan Ass'n. v. DeLoach, 362 So.2d 982 (Fla. 2d DCA 1978); Jimmy Hall's Morningside v. Blackburn Peck Enter, Inc., 235 So.2d 344 (Fla. 2d DCA 1970). Furthermore, in order for a lease to be terminated pre-petition, three elements need to be proven: (1) there must have been a default; (2) clear notice must have been given that the lease would be terminated if the default is not timely cured; and (3) the debtor must have failed to effectuate the cure within the cure period, which expired pre-petition.