EAST COAST ADVERTISING, INC. AND CHARLES HANCOCK, APPELLANTS,
v.
MALCOLM WISEHEART, APPELLEE
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East Coast Advertising and Charles Hancock leased property for a billboard but refused to pay rent, claiming failure of consideration due to zoning restrictions preventing the intended use. The court affirmed summary judgment for the landlord, holding that the lessees, as experienced billboard operators who knew of the zoning deficiencies and negotiated with the expectation of obtaining zoning changes, could not use failure of consideration as a defense.
A lessee in the billboard business cannot assert failure of consideration as a defense to non-payment of rent where the lessee knew of existing zoning deficiencies, specifically bargained with the expectation of obtaining zoning changes, and rejected a lease provision allowing escape if the property could not be used as intended.
[1] A party cannot invoke existing zoning restrictions as a defense to performance of a lease if the party knew of the restrictions and bargained on the basis that the restri…
[2] A lessee's defense of failure of consideration based on zoning restrictions is unavailable when the lessee was aware of the restrictions, expected to remove them, and wai…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“if knowledge of the facts making performance impossible were available to the promisor, he cannot invoke them as a defense to performance.”
Establishes the fundamental principle that a party with knowledge of impediments to performance cannot use those impediments as a defense.
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Join FLexlaw to unlock all legal intelligenceEast Coast Advertising and Charles Hancock entered into a lease for property intended for a billboard. Existing zoning restrictions prevented the bill…
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SCHWARTZ, Chief Judge.
This is an action for non-payment of the rent provided in a lease of property for a potential billboard, which was defended on the sole ground of failure of consideration because existing zoning restrictions in fact prevented that use. See Marks v. Fields, 160 Fla. 789, 36 So. 2d 612 (1948); La Rosa Del Monte, Inc. v. G.S.W. Enters. Corp., 483 So. 2d 472 (Fla. 3d DCA 1986), review denied, 492 So. 2d 1332 (Fla.1986).
The trial court, however, ruled as a matter of law that the defense was unavailable because the parties — most importantly the lessees, which were in the billboard business — (a) knew of the existing zoning deficiencies; (b) specifically bargained on that basis with the expectation that the lessees would see that the restrictions were removed; and (c) specifically eliminated a clause in the proposed lease which would have permitted the lessees to escape from its provisions if they were unable to use the property as contemplated.
We agree and therefore affirm the summary judgment entered for the appellee-lessor for the full amount of the unpaid rent. See Shore Inv. Co. v. Hotel Trinidad, Inc., 158 Fla. 682, 683, 29 So. 2d 696, 697 (1947)(“[I]f knowledge of the facts making performance impossible were available to the promisor, he cannot invoke them as a defense to performance.”); Sarasota-Manatee Airport Auth. v. Racing Wheels, Inc., 5 B.R. 309, 313 (Bankr. M.D.Fla.1980)(“The [lesseej’s third defense of economic frustration is equally without merit for not only was the risk of failing to procure the necessary zoning changes foreseeable, it was clearly contemplated by the parties and the failure to make provision in the lease agreement for a denial of the zoning change indicates an assumption of such risk on the part of the [lessee].”); Rosigue v. Windley Cove, Ltd., 542 So. 2d 1014 (Fla. 3d DCA 1989)(recision reversed when parties agreed to “take their chances” that existing building restrictions would be lifted); Caidin v. Poley, 313 So. 2d 88 (Fla. 4th DCA 1975); see also Warshawsky v. American Auto. Prods. Co., 12 Ill.App.2d 178, 138 N.E. 2d 816 (1956); Sachs Steel & Supply Co. v. St. Louis Auto Parts & Salvage Co., 322 S.W. 2d 183 (Mo.App.1959); Schlesinger v. Levine, 28 Misc.2d 654, 212 N.Y.S.2d 904 (N.Y.Sup.Ct.1961). Compare Marks, 160 Fla. at 789, 36 So. 2d at 612 (contrary dictum in case in which neither party knew of zoning restrictions).
Affirmed.
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Cited By
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1700 Rinehart, LLC v. Advance Am., 51 So. 3d 535 (Fla. 5th DCA 2010)…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 So. 2d 734 (Fla. 3d DCA 2003), which affirmed a summary judgment for a landlord in an action for rent under a lease for use as a billboard. The lessee defended on the ground of failure of consideration because existing zoning regulations prevented that use. Th…
Authorities Cited
- Shore Inv. Co. v. Hotel Trinidad, Inc., 158 Fla. 682 (Fla. 1947)
- Marks v. Fields, 160 Fla. 789 (Fla. 1948)
- Rosique v. Windley Cove, Ltd., 542 So. 2d 1014 (Fla. 3d DCA 1989)
- Caidin v. Poley, 313 So. 2d 88 (Fla. 4th DCA 1975)
- LA Rosa del Monte Express, Inc. v. G.S.W. Enters. Corp., 483 So. 2d 472 (Fla. 3d DCA 1986)