Florida Commercial Real Estate Litigation Blog

Typically, eviction of a commercial tenant does not terminate a lease under Florida law, or preclude the landlord from exercising its option to accelerate rent payments under the terms of the lease in the absence of any relevant modifying provisions in the lease agreement or evidence of landlord’s retaking possession for its own use.

A case that frequently causes confusion and is regularly cited by commercial tenants seeking to prevent the landlord from accelerating rent is Coast Federal Sav. & Loan v. DeLoach, where the Second DCA held that “[b]y retaking possession either for his own account or for the account of the lessee, a lessor loses the right to recover the full amount of remaining rental due on the basis of the acceleration clause.” 362 So.2d 982, 984 (Fla. 2d DCA 1978).

However, contrary to the holding in Coast Federal Sav. & Loan v. DeLoach, the law is clear in all of the DCAs that a “[d]efault under [Section 83.232] determines only the possessory interest and does not resolve a dispute for damages.” Famsun Invest. LLC, v. Therault, 95 So.3d 961 (Fla. 4th DCA 2012). Accordingly, when the landlord takes possession of the premises for the account of the tenant, acceleration is appropriate. See Colonial Promenade, etc. v. Juhas, 541 So.2d 1313 (Fla. 5th DCA 1989); CB Institutional Funds VIII v. Gemballa U.S.A., 566 So.2d 896 (Fla. 4th DCA 1990); 4-Way, Inc. v. Bryan, 581 So.2d 208 (Fla. 1st DCA 1991).

While the Second DCA never expressly acknowledged that its decision in Federal Sav. & Loan v. DeLoach is no longer binding precedent, in Horizon Medical Group, P.A. v. City Center of Charlotte Count, Ltd., 779 So.2d 525 (Fla. 2d DCA 2001), it held that the landlord was entitled to collect accelerated rent as long as any “rental proceeds received . . . from reletting the premises during the remainder of the lease term” were applied against the accelerated rent.  Accordingly, acceleration of rent is permissible even after the landlord has retaken possession.