NEISNER BROTHERS, INC., A NEW YORK CORPORATION, APPELLANT,
v.
PALM CORPORATION, A FLORIDA CORPORATION, MELVIN R. HOMER AND JEROME B. HOMER, APPELLEES
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Neisner Brothers, a tenant at Sunny Isles Shopping Center, challenged the landlord Palm Corporation's agreement to lease parking lot space to the Homers for restaurant construction. The court reversed summary judgment for the landlord, holding that the tenant's lease required written consent before any alterations to the parking area.
The court held that paragraph 1(c) of the Neisner lease, which explicitly requires landlord's written consent before making changes to the parking area, is unambiguous and must be accorded its plain meaning. The erection of a restaurant in the parking lot constitutes a change to the parking area, and the trial court erred by failing to give effect to this provision.
[1] A lease provision requiring landlord consent for changes to the parking area must be given its plain meaning when unambiguous.
[2] The erection of a restaurant in a shopping center parking lot constitutes a "change" to the parking area within the meaning of a lease agreement.
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Join FLexlaw to unlock all legal intelligence“No changes shall be made to the location of Tenant's store ... or to the parking area, without the Landlord first obtaining the written consent of the tenant”
The lease provision at issue requiring landlord to obtain tenant's written consent before altering the parking area
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Join FLexlaw to unlock all legal intelligenceNeisner Brothers leased space in Sunny Isles Shopping Center from 1957 under a lease with Palm Corporation's predecessor. In 1978, Palm agreed to leas…
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PER CURIAM.
Neisner Brothers (Neisner) appeals from a non-final order of the trial court which granted partial summary judgment in favor of the appellees. We have jurisdiction.1
Palm Corporation (Palm) is the owner of Sunny Isles Shopping Center. Appellant Neisner is a tenant of the center by virtue of a 1957 lease which Neisner executed with Palm’s predecessor in interest. In 1978 Palm entered into an agreement with Jerome and Melvin Homer to lease a portion of the shopping center parking lot on which to build a restaurant. Neisner objected to this proposed construction as violating a provision of its lease. Palm then filed this suit seeking a declaration of its rights under the two agreements.
The Homers, joined by Palm, moved for partial summary judgment alleging that the 1978 agreement did not violate the Neisner lease. The trial court granted the motion concluding that Neisner, while entitled to 300 parking spaces within 1,000 feet of its store2, had no right to prevent the proposed construction which would affect neither the amount nor the location of these spaces. We disagree and reverse.
At the heart of this controversy is the meaning of paragraph 1(c) of the Neisner lease, which provides in relevant part:
No changes shall be made to the location of Tenant’s store ... or to the parking area, without the Landlord first obtaining the written consent of the tenant, [e. s.]
The plain language of this paragraph required Palm to obtain Neisner’s written consent before making any alterations in the parking lot. Clearly, the erection of a restaurant in the middle of the lot will “change” the parking area. It is conceded that no written consent was obtained from Neisner prior to the execution of the lease agreement between the Homers and Palm. By failing to give effect to this provision of the lease, the trial court varied the terms of the agreement. Where, as here, a contract term is explicit and unambiguous, it must be accorded its plain meaning. Pafford v. Standard Life Ins. Co. of Indiana, 52 So. 2d 910 (Fla.1951); Bared v. Cobo, 379 So. 2d 666 (Fla. 3d DCA 1980).
In so ruling we note a similar decision in a sister state based on a lease provision substantially the same as paragraph 1(c): Food Fair Stores, Inc. v. Jackson Heights Shopping Center, Inc., 55 Misc.2d 205, 284 N.Y.S.2d 814, aff’d mem., 28 A.D.2d 1207, 285 N.Y.S.2d 1009 (1967). Additionally, we are impressed with the analysis of a comparable situation in the case of Walgreen Co. v. American National Bank & Trust Co. of Chicago, 4 Ill.App.3d 549, 281 N.E. 2d 462 (1972), where the court treats the broader implications peculiar to this form of lease agreement.
Accordingly, the partial summary judgment under review is reversed and the cause remanded with directions to enter judgment on this issue in favor of appellant Neisner. Reversed and remanded with directions.
. Fla.R.App.P. 9.130(a)(3)(C)(iv).
. Paragraph 10(a) of the Neisner lease.
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Jenkins v. Eckerd Corp., 913 So. 2d 43 (Fla. 1st DCA 2005)…Nat’l Bank of Tampa, 381 So. 2d 1194, 1197 (Fla. 2d DCA 1980). See also Dolphins Plus, Inc. v. Hobdy, 650 So. 2d 213, 214 (Fla. 3d DCA 1995); Med. Ctr. Health Plan v. Brick, 572 So. 2d 548, 551 (Fla. 1st DCA 1990); Neisner Bros., Inc. v. Palm Corp., 394 So. 2d 1106, 1107 (Fla. 3d DCA 1981); Saltzman v. Ahern, 306 So. 2d 537, 539 (Fla. 1st DCA 1975). This rule applies to commercial leases as any other contract. See, e.g., Neisner Bros., 394 So. 2d at 1107. Delchamps Includes “Its Successors or Assigns” Sandhi…
Authorities Cited
- Pafford v. Standard Life Ins. Co. of Ind., 52 So. 2d 910 (Fla. 1951)
- Bared v. Cobo, 379 So. 2d 666 (Fla. 3d DCA 1980)