DAVID MARGOLIS, AS A GENERAL PARTNER IN PLAZA DELRAY, LTD., A FLORIDA LIMITED PARTNERSHIP, AND AS A GENERAL PARTNER IN THE JAYMAR COMPANY, A PARTNERSHIP, CROSS APPELLANT,
v.
NICHOLAS A. MALESKY AND GIUSEPPE BELLITTO, CROSS APPELLEES
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The court held that the lease was valid and the tenants were not entitled to a return of rent, reversing the lower court's determination.
Tenants appealed a judgment concerning a lease, and the landlord cross-appealed. The tenants' appeal was dismissed. The landlord's cross-appeal concer…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
This is an appeal by tenants and a cross appeal by the landlord. The tenants’ appeal was dismissed by this court on July 3, 1986, upon stipulation of the parties. As to the cross appeal, we reverse and remand with direction to enter judgment for the landlord on the issues of the validity of the lease and the tenants’ right to return of rent. At oral argument, landlord’s counsel announced a waiver of any further claims for damages based on continued nonperformance by the tenants.
The landlord’s cross appeal is from the second paragraph of the final judgment, declaring the lease of the adjoining 808 square feet to be null and void and directing recovery from the landlord of $11,-660.04 in rent paid by the tenants. We conclude both determinations to be erroneous.
The lease clearly shows that the subject premises were leased to the tenants for use as an office; and any use of the premises for the expansion of the tenants’ existing restaurant was specifically conditioned on the tenants obtaining approval of restaurant space “in addition to” existing restaurant space allotment. By the terms of the lease, the landlord clearly made no representation as to whether the tenants would be able to use the leased premises for their desired restaurant expansion. Furthermore, the record shows that the tenants had contemplated the possibility of not receiving the necessary approval from the City of Delray Beach and had determined that in such event, the leased premises would be used as an office or for storage space.
GLICKSTEIN, DELL and GUNTHER, JJ., concur.
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1700 Rinehart, LLC v. Advance Am., 51 So. 3d 535 (Fla. 5th DCA 2010)…ed with the question of whether there has been a failure of consideration, since such a question is said to depend upon the intent of the parties at the time of the execution of the lease. (e.s.) (Footnotes omitted); see, e.g., Margolis v. Malesky, 515 So. 2d 425 (Fla. 4th DCA 1987) (landlord entitled to judgment where lease required tenants to obtain zoning approval for proposed use and tenants contemplated alternate use if zoning denied). Closely on point is East Coast Advertising, Inc. v. Wiseheart, 862…