NICK MOSKOS, APPELLANT,
v.
WILSON B. HAND AND RENA V. HAND, HIS WIFE, APPELLEES
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A landlord sought eviction of a tenant for non-payment of December rent under Florida law. The trial court granted judgment on the pleadings, finding the lease void due to non-payment and making the tenant a tenant at sufferance. The appellate court reversed, finding that the pleadings presented justiciable issues of waiver and estoppel that precluded summary judgment.
The court reversed the judgment on the pleadings because the pleadings raised justiciable issues of waiver and estoppel that were adequate to bar summary judgment. A lessor is estopped from asserting a forfeiture for breach of a lease condition when, after the breach, he accepts rent from the tenant with knowledge or full notice of the breach.
[1] A landlord may be estopped from asserting a lease forfeiture for a rent payment breach if the landlord accepts rent from the tenant after the breach with knowledge thereo…
[2] A tenant's express waiver of statutory notice requirements in a lease agreement takes precedence over the statutory notice provisions.
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Join FLexlaw to unlock all legal intelligence“a lessor is estopped to assert a forfeiture for a breach of a condition in a lease, or he waives his right to such a forfeiture, where after the breach he accepts rent from his tenant with knowledge or full notice thereof”
Establishes the core legal principle that acceptance of subsequent rent with knowledge of prior breach operates as waiver or estoppel against forfeiture
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Join FLexlaw to unlock all legal intelligenceThe parties had a written lease agreement. The landlord (Moskos) sought eviction based on the tenant's (Hand's) failure to pay December rent when due.…
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This is a landlord tenant case with eviction being sought under the provisions of *796F.S. 83.21, Laws of 1969, F.S.A. The trial court entered a judgment on the pleadings in manner following:
“IT IS ORDERED AND ADJUDGED the plaintiff’s motion for judgment on the pleadings is partially granted to the degree that this court has found from the pleadings that the lease between the parties became null and void by the failure of the defendant to pay the rent. The court finds the defendant to be a tenant at sufferance from the date of the failure to pay said rent, and said lease is a nullity.
“The plaintiffs request for an order of immediate possession is hereby denied due to the foregoing findings.”
We reverse.
The parties had a written lease agreement. Plaintiffs, the landlords, based their petition upon a failure of the defendant, tenant, to pay the December rent when due. The defendant’s sworn answer reflected that he had paid and the landlords had accepted the next month’s rent (January) and that he had tardily tendered the December rent in the form of a Cashier’s Check which the landlords held but refused to negotiate.
We believe the content of foregoing pleadings was of such nature as to make a justiciable issue in the areas of waiver and estoppel adequate to bar a judgment on the pleadings. As a general rule a lessor is estopped to assert a forfeiture for a breach of a condition in a lease, or he waives his right to such a forfeiture, where after the breach he accepts rent from his tenant with knowledge or full notice thereof. See U. S. Properties, Inc. v. Marwin Corp., Fla.App.1960, 123 So.2d 371, and Tropical Attractions, Inc. v. Coppinger, Fla.App.1966, 187 So.2d 395.
The tenant’s plaint that he did not receive the three days notice provided in Section 83.20(2), F.S.1969, F.S.A., is without merit. Here the notice was not necessary because the tenant in the lease expressly waived all notice required by law. Such a lease provision takes precedence over the statute. Baker v. Clifford-Mathew Investment Co., 1930, 99 Fla. 1229, 128 So. 827, and Altiere v. Atlantic Nat. Bank of West Palm Beach, Fla.App.1964, 168 So.2d 693.
The judgment appealed is reversed and the case remanded for proceedings consistent herewith.
Reversed’and remanded.
REED and MAGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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John v. Philpot, 411 So. 2d 1341 (Fla. 1st DCA 1982)…lease, or waives his right to such a forfeiture, if, after the breach of covenant, he accepts rent from his tenant with knowledge or full notice thereof. Farmers' Bank and Trust Co. v. Palms Pub. Co., 86 Fla. 371, 98 So. 143 (1923); Moskos v. Hand, 247 So. 2d 795 (Fla. 4th DCA 1971). Even when time is made of the essence of a contract, such provision can also be waived by the party to whom the benefit inures. Shouse v. Doane, 39 Fla. 95, 21 So. 807 (1897). The difficulty in applying the above rule to the ca…
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Bell v. Kornblatt, 705 So. 2d 113 (Fla. 4th DCA 1998)…court of the power to adjudicate the case. This court has previously held that a three-day notice under an earlier version of a landlord tenant statute, section 83.20(2), Florida Statutes (1969), may be expressly waived in a lease.2 Moskos v. Hand, 247 So. 2d 795 (Fla. 4th DCA 1971). See also [*115] Clark v. Hiett, 495 So. 2d 773 (Fla. 2d DCA 1986). As the circuit court observed in this ease, such a holding is not reconcilable with a view that the notice is necessary to subject matter jurisdiction. See Cunni…1 / 2
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Raimondi v. I.T. Chips, Inc., 480 So. 2d 240 (Fla. 4th DCA 1985)…lease, or waives his right to such a forfeiture, if, after the breach of covenant, he accepts rent from his tenant with knowledge or full notice thereof. Farmers’ Bank and Trust Co. v. Palms Pub. Co., 86 Fla. 371, 98 So. 143 (1923); Moskos v. Hand, 247 So. 2d 795 (Fla. 4th DCA 1971). Even when time is made of the essence of a contract, such provision can also be waived by the party to whom the benefit inures. Shouse v. Doane, 39 Fla. 95, 21 So. 807 (1897). The difficulty in applying the above rule to the ca…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Baker v. Clifford-Mathew Inv. Co., 99 Fla. 1229 (Fla. 1930)
- Harper v. Green, 99 Fla. 1309 (Fla. 1930)
- U. S. Props., Inc. v. Marwin Corp., 123 So. 2d 371 (Fla. 3d DCA 1960)
- Tropical Attractions, Inc. v. Coppinger, 187 So. 2d 395 (Fla. 3d DCA 1966)
- State v. Wiley Post Tainpeah, 168 So. 2d 693 (Fla. 2d DCA 1964)
- B. T., Inc. v. Square Deal Mach. & Supply Co., 168 So. 2d 693 (Fla. 2d DCA 1964)