BOBBIE LEE MULLIS D/B/A PUBLIC SAFE-T OIL SERVICE AND SUPPLY, APPELLANT,
v.
DIVISION OF ADMINISTRATION, STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, E. GLENN HENNING AND MARY EMILY HENNING, APPELLEES
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Mullis, a lessee of condemned property, appealed an order denying him any share of the condemnation award. The court held that the lease's condemnation clause, which addressed only temporary loss of possession, did not bar the lessee from compensation for the taking of his leasehold interest, and remanded for apportionment of the award.
A leasehold interest is property entitled to constitutional protection and compensation upon taking. The lease clause at issue, by its terms addressing possession "during any portion of said term" and referencing loss of title through court officers, contemplated only temporary loss of possession, not permanent condemnation. Therefore, the lessee was not contractually barred from sharing in the condemnation award.
[1] A lessee is entitled to compensation for the taking of their leasehold interest in whole or in part.
[2] A lease may contain a condemnation clause that terminates the lessee's interest and claim to compensation upon a taking.
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Join FLexlaw to unlock all legal intelligence“A leasehold interest is property in the constitutional sense, and a lessee is entitled to compensation for the taking of his interest in whole or in part.”
Establishes the fundamental right of lessees to receive compensation for condemnation of their leasehold interests.
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Join FLexlaw to unlock all legal intelligenceThe Department of Transportation condemned land that Mullis leased from the Hennings under a written lease agreement. Following a jury trial that awar…
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[*474] COBB, Judge.
Mullis, a lessee, appeals from an order of apportionment of a condemnation award wherein appellant was denied any part of the award. Appellees Henning were the lessors and owners of the parcel condemned. The Department of Transportation took the land in question pursuant to Chapter 73, Florida Statutes. Subsequent to a trial by jury and award of compensation to the Hennings, an apportionment hearing was held. The trial court determined that pursuant to paragraphs 8 and 10 in the lease between the Hennings and Mullis that the lessee had no right to share in the condemnation award.
A leasehold interest is property in the constitutional sense, and a lessee is entitled to compensation for the taking of his interest in whole or in part. E.g., Rice v. City of Ft. Lauderdale, 281 So. 2d 36 (Fla. 4th DCA 1973), affirmed in part, modified in part, reversed in part, 313 So. 2d 649 (Fla.1975). However, a lease may contain a condemnation clause which will usually spell out that in the event of a taking by eminent domain the lease is terminated and the lessee has no estate or interest in the property remaining after the taking which would sustain a claim for compensation. See generally2 Nichols on Eminent Domain, § 5.23(2) (3d ed. 1979); 27 Am.Jur.2d Eminent Domain § 250 (1966); Annot., 96 A.L.R.2d 1140 (1964).
The issue is whether the terms of the lease may be interpreted to reflect an agreement by the parties to effect an automatic termination of the lessee’s interest in the event of a permanent taking by the state’s exercise of the power of eminent domain. The critical paragraph of the lease agreement between the Hennings and Mul-lis read:
10. It is mutually covenanted and agreed by and between the Lessors and Lessee that in case the said demised premises or any part thereof shall, during any portion of said term or any extension thereof, come into the possession of any receiver, assignee, or other officer acting under the order of any court, or any sheriff, marshal, or any other officer, the Lessors shall have the right at their election to terminate said term, or in case they shall not exercise this right of termination, to accept rent from said receiver, trustee, executor, assignee, sheriff, marshal, constable, or other officer for the term of such occupancy without impairing or affecting in any way the rights of said Lessors against the said Lessee under this lease, (emphasis added).
We are of the opinion that the phrase “during any portion of said term” does not refer to a permanent taking but indicates that the parties were contemplating a temporary loss of possession. In addition, the phrase “come into the possession of any ... assignee” does not refer to a loss of title.
It has been held that the law does not look with favor on clauses causing forfeiture of the lessee’s interest on condemnation, hence, a lease covenant will be construed not to have that effect if its language in the circumstances possibly permit.
REVERSED and REMANDED.
DAUKSCH, C. J., and ORFINGER, J., concur. . See generally Orange State Oil Co. v. Jacksonville Expressway Authority, 110 So. 2d 687 (Fla. 1st DCA 1959), cert. denied, 114 So. 2d 4 (Fla.1959); 4 Nichols on Eminent Domain, § 12.42(3).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Trump Enters., Inc. v. Publix Supermarkets, Inc., 682 So. 2d 168 (Fla. 4th DCA 1996)…written lease agreement for a term of years is an owner of property in the constitutional sense and is thereby entitled to full compensation for such a taking, notwithstanding the silence in such a lease. See generally Mullís v. Division of Admin., 390 So. 2d 473 (Fla. 5th DCA 1980). It has been held that the law does not look with favor on clauses causing forfeiture of the lessee’s interest on condemnation, hence, a lease covenant will be construed not to have that effect if its language in the circumstanc…
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Elmore v. Broward Cnty., 507 So. 2d 1220 (Fla. 4th DCA 1987)…r rescission of those rights in addition to bare cancellation of the lease and termination of the relationship would have been required. In making these determinations I have considered particularly the case of Mullis v. Division of Administration, 390 So. 2d 473 [Fla. 4th DCA 1980] and the case law indicating that bare termination or cancellation of a contract does not, in all instances, eliminate or extinguish claims or causes of action arising out of that contract and the legal relationship between the pa…
Authorities Cited
- City OF Fort Lauderdale v. Casino Realty, Inc., 313 So. 2d 649 (Fla. 1975)
- Orange State OIL Co. v. Jacksonville Expressway Auth., 110 So. 2d 687 (Fla. 1st DCA 1959)
- Rice v. City OF Fort Lauderdale, 281 So. 2d 36 (Fla. 4th DCA 1973)
- Sherwood v. State, 114 So. 2d 4 (Fla. 1959)
- State v. Furen (two cases), 114 So. 2d 4 (Fla. 1959)