The Leasing Hotline

Pursuant to the 'damage or destruction' clause in the lease, the landlord was entitled to terminate the lease; the landlord was not, however, entitled to double rent because the tenant was not a hold-over tenant. Covelli Family, L.P. d/b/a Panera Bread, v. ABG5, L.L.C., as successor in interest to Three Avenues, L.L.C. and Continental Casualty Company, No. 4D06-4298, Court of Appeal of Florida, Fourth District, Jan. 2, 2008.

The leased property was damaged by two hurricanes, and the landlord gave Panera timely notice of its intent to terminate the lease under the 'damage or destruction' clause of the lease. Thereafter, Panera commenced an action contesting the landlord's right to terminate, and the landlord counterclaimed for eviction. Panera argued that the landlord had failed to establish proof that the cost to repair the hurricane damage exceeded 20% of the building's insurable value because the landlord failed to present estimates by a 'reputable contractor' as contemplated in the lease. The trial court issued a temporary injunction preventing eviction after finding that Panera had a substantial likelihood of success on the merits on the condition that Panera post a bond of double rent. After a trial, at which time both the landlord and Panera had obtained expert testimony regarding the repair of the premises, the court held that although the landlord had breached the relevant termination provision in the lease, the landlord was justified in terminating the lease. It held that the breach was not material and awarded possession of the premises to the landlord. It also awarded the double rent posted by Panera, finding that Panera was a holdover tenant. The court of appeal affirmed, finding that the decision to terminate the lease was proper because the landlord's breach by failing to present a proper estimate was not material: It had no effect on the actual repair costs as presented at trial. However, the court of appeal held that the double rent award was not proper because Panera was not a hold-over tenant, but rather had a well-founded claim of possession under the trial court's temporary injunction as well as the landlord's delay in providing a proper repair estimate.

.Barrak v. Report Investment Corp. Inc., No. 2002-26271-CA Venue: Miami-Dade County Circuit Court, FL, 11-28-2007. The owner of a mall settled for $26 million with a man who was rendered a quadriplegic after he was shot in a parking lot outside a strip club. In 2002, Sami Barrak, then 25, was in his car at about 2 a.m. waiting for his friend when he was robbed at gunpoint outside Tootsie's Cabaret. He and his friend had been in the club that night. He sued building owner Report Investment Corp. Inc., claiming it failed to provide adequate security, despite being located in a high-crime area. Tootsie's was also named in the suit but settled before trial. The jury found that Report Investment Corp. was in control of the property and had a duty to maintain the lot in a safe condition. The jury awarded $102 million before the parties settled post-trial.