EMORY C. BOBO, APPELLANT,
v.
VANGUARD BANK AND TRUST COMPANY, INC., APPELLEE

Fla. 1st DCA | 1987-08-18
No. BO-147
SHIVERS and NIMMONS, JJ., concur.
512 So. 2d 246 Florida District Court of Appeal, First District (1987) Positive Treatment
Cited by 7 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Emory Bobo appeals a foreclosure order that included his sublease of a roller coaster operation on Okaloosa Island. The court reversed, holding that foreclosure of a mortgage on a master lease does not automatically foreclose a recorded sublease, and finding no evidence that Bobo abandoned his sublease rights.


Holding

Foreclosure of a mortgage on a master lease does not foreclose a sublease; the successor in interest takes subject to the sublease. Additionally, Bobo did not abandon the sublease because there was no clear intent to abandon coupled with overt acts of relinquishment, and ongoing negotiations regarding his sublease rights precluded any inference of intent to abandon.


Headnotes

[1] Foreclosure of a mortgage on a master lease does not foreclose a duly recorded sublease of a portion of the leased premises.

[2] A surrender by a lessee of its interest in a leasehold, after a sublease has been entered, does not defeat the estate of the sublessee.

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Key Quotes

“Contrary to the trial court's conclusion, foreclosure of a mortgage on the master lease would not foreclose Bobo's sublease.”

Establishes the core holding that mortgage foreclosure on the master lease does not automatically foreclose a recorded sublease.

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Facts & Procedural History

Dubandy Corporation leased property on Okaloosa Island to operate an amusement park and subleased a portion to Bobo for a roller coaster operation. Th…

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Opinion of the Court
BARFIELD, Judge.

BARFIELD, Judge.

Bobo appeals a final order of foreclosure finding Bobo’s sublease of a portion of a parcel to have been foreclosed in appellee’s foreclosure of a mortgage on a lease of the entire parcel. We find the trial court erred and reverse.

The Dubandy Corporation leased a portion of Okaloosa Island to operate an amusement park. In turn, Dubandy subleased a portion of the premises to Bobo to operate a roller coaster. The sublease was duly recorded in the official records. Several years later, Dubandy gave appellee’s predecessor in interest a mortgage on the leased property. Dubandy later defaulted on the promissory note secured by the mortgage. Dubandy did not reopen the amusement park in which appellant's ride was located. Appellee Vanguard Bank and Trust Co. sought to foreclose the mortgage and also sought a declaratory judgment as to its rights under the sublease held by Bobo. The trial court found that the sublease was dependent upon the underlying master lease and that Bobo had abandoned the sublease. Thus, as appellee’s rights were found to be superior to Bobo’s, the trial court ordered the sublease foreclosed along with the mortgage.

Contrary to the trial court’s conclusion, foreclosure of a mortgage on the master lease would not foreclose Bobo’s sublease. A surrender by a lessee of its interest in a leasehold, after a sublease has been entered, does not defeat the estate of the sublessee. Brunswick Corp. v. Berlo Vending Co., 196 So. 2d 497 (Fla. 3d DCA 1967). While the sublease might rise and fall with the master lease, the master lease itself does not fall in this case; only a mortgage on that master lease is foreclosed. The master lease itself will continue to exist, but with a new lessee. Thus, the successor in interest to the lessee/subles-sor, in this case appellee, would take the leased premises subject to Bobo’s outstanding sublease.

As to the second point, it has been said that proof of abandonment of leased premises requires that there must be “an intent to abandon and conduct by which the intention is carried into effect, or such a relinquishment by the tenant as will justify an immediate resumption of possession by the landlord. Where there is such a relinquishment, there is a sufficient abandonment or surrender.” 51 C.J.S. Landlord and Tenant, § 125(2) (1968). Abandonment of property requires a showing of actual acts of relinquishment accompanied by an intention to abandon. 1 Fla.Jur.2d Abandoned, Lost, and Escheated Property § 2 (1977). In Hunt v. Hiland, 366 So. 2d 42 (Fla. 4th DCA 1978), cert. denied, 376 So. 2d 72 (Fla.1979), the court rejected a finding that the lessee had abandoned the premises where it was shown the lessor and lessee were attempting to renegotiate the lease, even though the lessee had failed to pay rent. The fact that there were ongoing discussions precluded an inference that the lessee had intended to abandon the leased premises.

No evidence appears in this record to support a conclusion that Bobo intended to abandon the subleased premises or that he made any overt act from which such an intent to abandon could be presumed. Ap-pellee acknowledges in its complaint that there were ongoing negotiations or discussions as to appellant’s rights under the sublease. The existence of such negotiations would preclude an inference that Bobo had intended to abandon these premises. The other evidence at trial does not demonstrate any intent or act by Bobo to relinquish any claim in this sublease. The fact that he may have been in default as to certain provisions of the lease does not in and of itself lead to the conclusion that he had abandoned the premises.

It is unnecessary to address the remaining issues as they are disposed of by reason of this opinion or are otherwise without merit. Accordingly, the trial court’s order is REVERSED and the case is REMANDED for entry of an order consistent with this opinion.

SHIVERS and NIMMONS, JJ., concur.


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Citator

Cited By

  • Whetstone v. State, 778 So. 2d 338 (Fla. 1st DCA 2000)
    …fect, or such a relinquishment by the tenant as will justify an immediate resumption of possession by the landlord. Where there is such a relinquishment, there is a sufficient abandonment or surrender.’ ” See Bobo v. Vanguard Bank & Trust Co., Inc., 512 So. 2d 246, 247 (Fla. 1st DCA 1987), quot [*343] ing 51 C.J.S. Landlord and Tenant, § 125(2) (1968). The evidence in this case does not support the trial court’s finding that appellant abandoned the premises which he and his wife jointly leased. It is true th…
  • Thal v. S.G.D. Corp., 625 So. 2d 852 (Fla. 3d DCA 1993)
    …*853] It is a well-settled principle of landlord-tenant law that a sublease rises and falls with the master lease, and that a sublessee can take no greater rights in demised property than its sublessor. See Bobo v. Vanguard Bank and Trust Co., Inc., 512 So. 2d 246, 247 (Fla. 1st DCA 1987); 34 Fla.Jur.2d Landlord & Tenant § 94 (1982); see also Roger A. Cunningham et ah, The Law of Property § 6.68, at 385 (1984) (“Since the subtenancy is carved out of the head leasehold, an early termination of the head tenancy…
  • Breen v. State, 68 So. 3d 365 (Fla. 1st DCA 2011)
    …t be ‘an intent to abandon and conduct by which the intention is carried into effect, or such a relinquishment by the tenant as will justify an immediate resumption of possession by the landlord.’ ”) (quoting Bobo v. Vanguard Bank & Trust Co., Inc., 512 So. 2d 246, 247 (Fla. 1st DCA 1987)). Furthermore, there was no evidence presented that appellant’s girlfriend revoked her consent to him living in the apartment. To the contrary, a witness testified she called appellant on the night of the incident and aske…

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