NANCY GOULD, APPELLANT,
v.
FRANK VITIELLO, APPELLEE
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A landlord sued a tenant for unpaid rent after the tenant abandoned a commercial lease early. The court reversed the trial court's judgment, holding that when a landlord retakes possession and relets the premises, the tenant is entitled to a credit for any surplus rent the landlord receives from the new tenant over what the original tenant would have paid.
Yes. When a landlord exercises the third alternative remedy (retaking possession for the account of the tenant), the tenant is entitled to a credit against unpaid rent equal to any surplus the landlord received from reletting over and above what the landlord would have received under the original lease terms. The trial court erred in preventing the tenant from developing evidence of such surplus.
[1] A landlord may pursue alternative remedies upon a tenant's breach of a lease, including retaking possession for the tenant's account and holding the tenant liable for the…
[2] If a landlord relets premises for the tenant's account after the tenant's breach, any rentals received from reletting must be deducted from the balance of rent due from t…
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Join FLexlaw to unlock all legal intelligence“If the landlord chooses the third alternative, any rentals received by the lessor from reletting must be deducted from the balance of rent due from the lessee under the lease.”
Establishes the fundamental principle that rentals from reletting reduce tenant liability.
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Join FLexlaw to unlock all legal intelligenceGould leased commercial premises from Vitiello under a three-year lease at $1,000 per month beginning September 25, 1984. Gould vacated in January 198…
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LEHAN, Judge.
In this suit by a landlord to collect rent unpaid by the tenant after the tenant broke the lease by vacating the premises, the tenant appeals the final judgment for the amount of unpaid rent and contends that the trial court erred in refusing to accept evidence as to mitigation of damages. We agree with that contention and reverse.
Appellant Gould entered into a one-year commercial lease agreement, dated September 11, 1981, to lease premises from appel-lee Vitiello. The lease was renewed for additional one-year terms in 1982 and 1983. On September 25, 1984, the lease was renewed for a three-year term at the rate of $1,000 a month. Gould vacated the premises during January, 1986. The premises were vacant through May of that year. Vitiello filed a complaint against Gould for payment of the $5,000 unpaid rent owed to June 1,1986, when the premises were relet by Vitiello to another tenant.
Upon the breach of a lease by a tenant, the landlord has alternative remedies. They are (1) to treat the lease as terminated and resume possession of the premises; (2) to do nothing and sue the lessee as each installment of rent becomes due or when the whole amount is due; or (3) to retake possession of the premises for the account of the tenant, holding the tenant liable for the difference between the rent required by the lease and the amount the landlord recovers from reletting. See Williams v. Aeroland Oil Co., 155 Fla. 114, 20 So. 2d 346, 347-48 (1944). If the landlord chooses the third alternative, any rentals received by the lessor from relet-ting must be deducted from the balance of rent due from the lessee under the lease. See Coast Federal Savings & Loan Association v. DeLoach, 362 So. 2d 982 (Fla. 2d DCA 1978); Jimmy Hall’s Morningside, Inc. v. Blackburn & Peck Enterprises, 235 So. 2d 344 (Fla. 2d DCA 1970); Robinson v. Peterson, 375 So. 2d 294 (Fla. 2d DCA 1979).
No case has been cited to us, nor have we found any, dealing with a situation like that in this case where a landlord, after default by the tenant, retakes possession, relets for the account of the tenant, and sues the tenant only for the unpaid rent up to the time of reletting. We see no reason why a landlord may not do so unless upon the reletting and during the remainder of the term of the lease under which the tenant was obligated, the landlord has received for the reletting a greater amount of rent than that which he would have received from the tenant under the lease. In that event, since the landlord was, under alternative (3) above, reletting for the account of the tenant, the tenant should be entitled to a credit against the amount he owed prior to the time of the reletting which credit is equal any surplus the landlord received upon the reletting over and above what the landlord should have received from the tenant under the terras of the lease, less any proper credits raised and proved.
At the trial of this case, when the tenant attempted through questioning of the landlord to obtain evidence as to any such surplus, the trial court sustained the landlord’s objections to those questions. Since the tenant was thereby prevented from developing evidence as to amounts to be credited against the sums owed by him, it was error to sustain that objection.
Reversed and remanded for proceedings consistent herewith.
SCHOONOVER, A.C.J., and HALL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Holiday Furniture Factory Outlet Corp. v. State, 852 So. 2d 926 (Fla. 1st DCA 2003)…1st DCA 1991); Diehl v. Gibbs, 173 So. 2d 719 (Fla. 1st DCA 1965); Ft. Lauderdale Joint Venture Ltd. P’ship v. Sander, 613 So. 2d 133 (Fla. 4th DCA 1993); Blount v. Dino’s Fontana Di Trevi, Inc., 583 So. 2d 380 (Fla. 3d DCA 1991); Gould v. Vitiello, 526 So. 2d 1018 (Fla. 2d DCA 1988); Linens of Paris, Inc. v. Cymet, 510 So. 2d 1021 (Fla. 3d DCA 1987); Wolf v. Buchman, 425 So. 2d 182 (Fla. 3d DCA 1983); Hulley v. Cape Kennedy Leasing Corp., 376 So. 2d 884 (Fla. 5th DCA 1979); Jimmy Hall’s Morningside, Inc. v. B…
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Griffin Indus., LLC v. Dixie Southland Corp., 162 So. 3d 1062 (Fla. 4th DCA 2015)…1st DCA 1991); Diehl v. Gibbs, 173 So. 2d 719 (Fla. 1st DCA 1965); Ft. Lauderdale Joint Venture Ltd. P’ship v. Sander, 613 So. 2d 133 (Fla. 4th DCA 1993); Blount v. Dino’s Fontana Di Trevi, Inc., 583 So. 2d 380 (Fla. 3d DCA 1991); Gould v. Vitiello, 526 So. 2d 1018 (Fla. 2d DCA 1988); Linens of Paris, Inc. v. Cymet, 510 So. 2d 1021 (Fla. 3d DCA 1987); Wolf v. Buchman, 425 So. 2d 182 (Fla. 3d DCA 1983); Hulley v. Cape Kennedy Leasing Corp., 376 So. 2d 884 (Fla. 5th DCA 1979); Jimmy Hall’s Morningside, Inc. v. B…
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Nat'l Advertising Co. v. Main St. Shopping Ctr., 539 So. 2d 594 (Fla. 2d DCA 1989)…in the event of a breach. Main Street elected not to retake possession of the leasehold property, but rather to do nothing and to sue for rent as the rent became due. This is one of three options available to it under Florida law. Gould v. Vitiello, 526 So. 2d 1018 (Fla. 2d DCA 1988). Main Street alleged a contractual right to accelerate rent in its complaint. The complaint, however, attached the lease agreement as an exhibit and relied upon the lease to create its right to damages. Main Street argues that it…
Authorities Cited
- Williams v. Aeroland OIL Co., 155 Fla. 114 (Fla. 1944)
- Jimmy Hall's Morningside, Inc. v. Blackburn & Peck Enters., Inc., 235 So. 2d 344 (Fla. 2d DCA 1970)
- Coast Fed. Sav. & Loan Ass'n v. Guion T. DeLOACH, 362 So. 2d 982 (Fla. 2d DCA 1978)
- Robinson v. Fernanda Peterson, 375 So. 2d 294 (Fla. 2d DCA 1979)