The Leasing Hotline

The landlord's motion for summary judgment was granted, but the appellate court reversed. It held that the trial court erroneously relied on portions of the lease that exempted the landlord from liability. It held that under the lease, the landlord was not shielded from liability because of its active or affirmative negligence. In this case, the landlord's failure to remedy the problems caused by the moisture on the back wall of the leased premises was active negligence. It held that although the tenants were responsible for all repairs associated with the leased premises, the problem associated with the wall might have originated from a location outside the leased premises. It held that the landlord's failure to investigate the source of the problems amounted to active negligence.

DECEPTIVE AND UNFAIR TRADE PRACTICES ACT

The Florida Deceptive and Unfair Trade Practices Act applies to a dispute between a landlord and tenant, where the dispute is considered a “consumer transaction” and where the conduct by one of the parties could reasonably be found to be deceptive and unfair. Beacon Property Management, Inc. v. PNR, Inc., Case No. 4D99-627, Court of Appeal of Florida, Nov. 10, 2004.

In 1994, the tenant purchased a restaurant and was assigned a lease to the restaurant's facility, which was located on the third floor of a building owned by the landlord. During the course of the tenancy, the tenant made requests for repairs, which requests were ignored. The problem eventually resulted in the collapse of the north wall of the building and caused the tenant to cease restaurant operations for a period of 7 months. The tenant commenced an action against the landlord and various agents of the landlord, alleging, inter alia, a claim under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). (The Florida Supreme Court had held that FDUTPA applies to private causes of action under certain circumstances.)

After a jury trial, the landlord was found to have violated FDUTPA, and the landlord appealed. The appellate court affirmed. It held that, contrary to the landlord's argument, FDUTPA did apply to this case because the dispute between the parties was a “consumer transaction.” Furthermore, the tenant's FDUTPA claim was based upon the landlord's failure to maintain the premises that resulted in the collapse of the wall and the closure of the restaurant. The court held that the conduct by the landlord could reasonably have been found by a jury to be deceptive and unfair. The court noted that its interpretation of FDUTPA may have the effect of codifying contractual breaches that were formerly remedial only under common law. It noted that the legislature has the power to codify common law, and if its interpretation was incorrect, the legislature could alter the statute to make a contrary purpose appear.

ACTIVE NEGLIGENCE

A landlord may not be exempt from liability where the lease only protects the landlord from passive negligence and the landlord's failure to investigate the source of a leak may be considered active negligence. Burnett et al. v. Chimney Sweep, LLC et al., B164190, Court of Appeal of California, Second Appellate District, Division Six, Nov. 2, 2004.

In 1998, the landlord leased commercial space in a hotel to the tenants for the purpose of operating a gift shop. In 2002, the tenants filed a complaint alleging that water stains existed on the back wall and ceiling of the leased premises and that excessive moisture and the growth of mildew and mold existed in these areas. The tenants alleged that it was a dangerous condition; they were unable to operate their business, and it was the landlord's obligation to remedy the condition, and the landlord refused to do so.

The landlord's motion for summary judgment was granted, but the appellate court reversed. It held that the trial court erroneously relied on portions of the lease that exempted the landlord from liability. It held that under the lease, the landlord was not shielded from liability because of its active or affirmative negligence. In this case, the landlord's failure to remedy the problems caused by the moisture on the back wall of the leased premises was active negligence. It held that although the tenants were responsible for all repairs associated with the leased premises, the problem associated with the wall might have originated from a location outside the leased premises. It held that the landlord's failure to investigate the source of the problems amounted to active negligence.

DECEPTIVE AND UNFAIR TRADE PRACTICES ACT

The Florida Deceptive and Unfair Trade Practices Act applies to a dispute between a landlord and tenant, where the dispute is considered a “consumer transaction” and where the conduct by one of the parties could reasonably be found to be deceptive and unfair. Beacon Property Management, Inc. v. PNR, Inc., Case No. 4D99-627, Court of Appeal of Florida, Nov. 10, 2004.

In 1994, the tenant purchased a restaurant and was assigned a lease to the restaurant's facility, which was located on the third floor of a building owned by the landlord. During the course of the tenancy, the tenant made requests for repairs, which requests were ignored. The problem eventually resulted in the collapse of the north wall of the building and caused the tenant to cease restaurant operations for a period of 7 months. The tenant commenced an action against the landlord and various agents of the landlord, alleging, inter alia, a claim under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). (The Florida Supreme Court had held that FDUTPA applies to private causes of action under certain circumstances.)

After a jury trial, the landlord was found to have violated FDUTPA, and the landlord appealed. The appellate court affirmed. It held that, contrary to the landlord's argument, FDUTPA did apply to this case because the dispute between the parties was a “consumer transaction.” Furthermore, the tenant's FDUTPA claim was based upon the landlord's failure to maintain the premises that resulted in the collapse of the wall and the closure of the restaurant. The court held that the conduct by the landlord could reasonably have been found by a jury to be deceptive and unfair. The court noted that its interpretation of FDUTPA may have the effect of codifying contractual breaches that were formerly remedial only under common law. It noted that the legislature has the power to codify common law, and if its interpretation was incorrect, the legislature could alter the statute to make a contrary purpose appear.