Florida Commercial Real Estate Litigation Blog

Before a landlord files suit for eviction, it should first consider whether there is any equipment on the premises that could help attract a new tenant. Frequently, landlords provide money in the lease for tenants to improve the interior and exterior of the premises (referred to as a tenant improvement allowance). For example, a sports bar may spend significant tenant improvement allowances buying refrigerators and TVs.

If the landlord files an eviction suit without a court order requiring the tenant to leave all equipment in the premises, the tenant might shut down and remove the equipment. To prevent the tenant from taking the equipment, a landlord may seek an order from the court, known as a distress writ, which prevents the tenant from removing or destroying any of the valuable property located in the premises. A commercial landlord may even request a distress writ from a judge without the tenant’s attorneys present.  This would allow a landlord to serve the tenant with an order that prevents the tenant from removing its equipment before filing its eviction complaint.

In order to obtain a distress writ:

(1) the landlord needs to get a court order;
(2) the landlord must plead facts that state the basis for the concern that valuable property may be removed;
(3) the landlord will likely be required to post a bond;
(4) the tenant must have the opportunity to obtain an immediate hearing to dissolve the writ; and,
(5) there is the opportunity for a prompt hearing on the merits of the case.

Typically, the landlord files a motion under oath seeking the distress writ in the circuit court (provided the value of the equipment exceeds $15,000). The landlord must post a bond for either twice the amount owed or double the estimated value of the property.  A landlord seeking a distress writ must follow the procedure carefully and would be wise to involve counsel.