PROTEAN INVESTORS, INC. AND LARRY MEINSTEIN AND JUNE MEINSTEIN, APPELLANTS,
v.
TRAVEL, ETC., INC., APPELLEE
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Protean Investors appealed a specific performance decree requiring it to honor Travel, Etc.'s right of first refusal on condominium units. The court affirmed, holding that Protean was estopped from claiming Travel, Etc. forfeited its right of first refusal through late rental payments because Protean accepted those payments without protest or notice of default.
The lessor was estopped from claiming the lessee forfeited its right of first refusal because the lessor accepted all late payments without protest and never notified the lessee of default. The anti-waiver provision did not prevent application of the estoppel doctrine under these circumstances.
[1] A lessor is estopped from claiming a lessee defaulted on a lease and forfeited a right of first refusal when the lessor accepts late rental payments without protest and w…
[2] Acceptance of late rental payments without protest, coupled with a failure to notify the lessee of default, can estop a lessor from enforcing an anti-waiver provision in…
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Join FLexlaw to unlock all legal intelligence“the defendant lessor [Protean Investors, Inc.] is estopped to claim that the plaintiff lessee [Travel, Etc., Inc.] was in default of the subject lease due to certain late rental payments made thereunder, and therefore had forfeited the right of first refusal under the lease”
Establishes the core holding that estoppel prevents the lessor from asserting forfeiture despite an anti-waiver clause
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Join FLexlaw to unlock all legal intelligenceProtean Investors, Inc. leased two condominium units to Travel, Etc., Inc., which held a right of first refusal under the lease. Travel, Etc. made som…
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PER CURIAM.
This is an appeal from a final decree of specific performance involving two condominium units. The decree was entered in favor of the plaintiff lessee [Travel, Etc., Inc.], who was the holder of a right of first refusal under a lease in which it rented the above condominium units from the defendant lessor [Protean Investors, Inc.]. The defendant lessor [Protean Investors, Inc.] contests this decree on appeal — as do Larry and June Meinstein, the parties to whom Protean Investors, Inc. sold the condominium units without giving the plaintiff [Travel, Etc., Inc.] a right of first refusal. We affirm.
We conclude that, notwithstanding the presence of an anti-waiver provision in the subject lease, the defendant lessor [Protean Investors, Inc.] is estopped to claim that the plaintiff lessee [Travel, Etc., Inc.] was in default of the subject lease due to certain late rental payments made thereunder, and therefore had forfeited the right of first refusal under the lease. This is so because the lessor defendant [Protean, Investors, Inc.] (a) accepted all the late rental payments without protest, and (b) never at any time notified the plaintiff lessee [Travel, Etc., Inc.] that it was in default of the lease and that the right of first refusal had thus been forfeited. See Farmers Bank & Trust Co. v. Palm Publishing Co., 86 Fla. 371, 98 So. 143 (1923); Moskos v. Hand, 247 So. 2d 795, 796 (Fla. 4th DCA 1971); Tropical Attractions, Inc. v. Coppinger, 187 So. 2d 395, 396 (Fla. 3d DCA 1966); U.S. Properties, Inc. v. Marwin Corp., 123 So. 2d 371, 376 (Fla.3d DCA 1960).
We have not overlooked Philpot v. Bouchelle, 411 So. 2d 1341 (Fla. 1st DCA 1982), relied upon by the defendants herein, but find it not controlling because there, unlike the instant case, the lessor accepted the late rental payments under protest and notified the lessee that the right of first refusal under the lease had thereby been broken.
Finding the balance of the other points raised on appeal to have no merit and to require no discussion, see Shaw v. Shaw, 334 So. 2d 13, 16 (Fla.1976), the final judgment under review is, accordingly,
Affirmed.
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City OF Miami Beach v. Carner, 579 So. 2d 248 (Fla. 3d DCA 1991)…e the argument that Carner-Ma-son may be limited to damages for partial breach since it elected its remedy by choosing to remain on the property for four years after declaring a breach had occurred. See Protean Investors, Inc. v. Travel, Etc., Inc., 499 So. 2d 49 (Fla. 3d DCA 1986); Doral Country Club, Inc. v. Curcie Bros., Inc., 174 So. 2d 749, 751 (Fla. 3d DCA), cert. denied, 180 So. 2d 656 (Fla.1965). Thus, upon remand, both the significance of Carner-Mason’s remaining on the property after declaring a br…
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Gonzalez v. I.J. Archer, 718 So. 2d 889 (Fla. 3d DCA 1998)…that he was in default of the 1993 lease due to the late payments. Such actions would cause a reasonable lessee to believe that the lessor did not intend to enforce the default provision on that basis. As in Protean Inv., Inc. v. Travel, Etc., Inc., 499 So. 2d 49 (Fla. 3d DCA 1986), under these circumstances, Archer is estopped from claiming that Gonzalez was in default of the lease due to late rental payments, and Archer, therefore, impliedly waived that lease provision. “A party may waive any rights to whi…
Authorities Cited
- Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976)
- John v. Philpot, 411 So. 2d 1341 (Fla. 1st DCA 1982)
- Farmers Bank & Tr. Co. v. Palms Publ'g Co., 86 Fla. 371 (Fla. 1923)
- Moskos v. Hand, 247 So. 2d 795 (Fla. 4th DCA 1971)
- U. S. Props., Inc. v. Marwin Corp., 123 So. 2d 371 (Fla. 3d DCA 1960)
- Tropical Attractions, Inc. v. Coppinger, 187 So. 2d 395 (Fla. 3d DCA 1966)