JOSEPH WAGMAN AND MILDRED WAGMAN, HIS WIFE, APPELLANTS,
v.
MAURICE LEFCOE AND EDYTHE LEFCOE, HIS WIFE, APPELLEES
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Lessees sought to recover a security deposit after eviction for non-payment of rent. The court affirmed dismissal of their action, holding that the lease's condition precedent—return of the premises and chattels in good condition at lease expiration—had not been satisfied because the lessees were evicted during the lease term.
The court held that the action could not be maintained because the conditions precedent for return of the security deposit—expiration of the lease term and proper relinquishment of the premises—had not been satisfied. The trial court properly dismissed the amended complaint with prejudice.
“The lessees shall not be entitled to receive the return of the final security deposit until possession of the premises and all the furniture, furnishings and fixtures shall have been promptly delivered to the lessors upon expiration of the term of the lease.”
This lease provision established the conditions precedent to recovery of the security deposit, requiring both expiration of the lease term and proper relinquishment of the premises.
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Join FLexlaw to unlock all legal intelligenceWagman and his wife were lessees under a lease running from November 1958 through November 1963. They failed to pay rent and were evicted pursuant to …
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A prior appeal to this court involving the same parties and subject matter is reported at Fla.App., 143 So.2d 550.
This was an action at law brought by lessees to recover a security deposit after eviction for non-payment of rent. The trial court entered a final judgment adverse to the appellants which dismissed their amended complaint with prejudice. One of the pertinent provisions of the lease in question permitted the lessors, upon the default of the lessees, to apply the security deposit or any part thereof in payment of sums then due and owing by the lessees for costs, expenses or damage incurred because of the lessees’ breach of the covenants and conditions of the lease. It was expressly agreed that the security deposit was not an advance payment of rent or a measure of lessors’ damages.
The appellant's contend that under the terms of the lease agreement the security was not to be forfeited in the event of the appellants’ breach of the lease. We fail to find any merit in the appellants’ contention for the simple reason that the lease contained a provision for the return of the security deposit as follows:
“The lessees shall not be entitled to receive the return of the final security deposit until possession of the premises and all the furniture, furnishings and fixtures shall have been promptly delivered to the lessors upon expiration of the term of the lease. * * * At the expiration of the term of this lease * * * the lessors shall then return to the lessees the balance of the security funds held by the lessors under the terms of this lease agreement * * [Emphasis supplied]
In the appellants’ amended complaint they alleged that they failed to promptly pay their rent and relinquished possession pursuant to a judgment of eviction. The term of the lease was from November, 1958, through November, 1963. The original *766complaint m this action was filed August 7, 1963, and the amended complaint on September 24, 1963. Since the lease provided that the security deposit would not be returned to the lessees until the expiration of the term of the lease, and since the return was conditioned upon the appellants’ prior performance, then obviously this action could not be maintained.
Since the conditions precedent required by the terms of the lease agreement did not exist or had not been performed at the time of the institution of this action, the able trial judge was eminently correct in dismissing the action. See Ballas v. Lake Weir Light and Water Co., 100 Fla. 913, 130 So. 421. It follows that the judgment appealed should be and is hereby affirmed..
Affirmed.
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Cited By
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Plowden & Roberts, Inc. v. Conway, 192 So. 2d 528 (Fla. 4th DCA 1966)…Grand Lodge No. 27, 1909, 58 Fla. 373, 50 So. 952. The provisions of the above rule permitting general allegations have not altered the rule that the sufficiency of the allegations, may be tested by motion to dismiss. Wagman v. Lefcoe, Fla.App.1964, 167 So. 2d 765. The requirement in that rule that a denial of performance or occurrence shall be made specifically and with particularity does not make failure of performance or-occurrence of conditions precedent an affirmative defense. If the specific allega [*53…
Authorities Cited
- Ballas v. Lake Weir Light & Water Co., 100 Fla. 913 (Fla. 1930)
- Wagman v. Lefcoe, 143 So. 2d 550 (Fla. 3d DCA 1962)