Acceleration of rent or Eviction? What should I do if a tenant is not paying rent by the due date?
Acceleration of rent clauses are valid in commercial leases. Jimmy Hall’s Morningslide, Inc. v. Blackburn & Peck Enterprises, Inc., 235 So.2d 344, 345 (Fla. 2d DCA 1970) (“Acceleration clauses in leases are valid and enforceable in Florida. However, acceleration clauses only relate to the accrual of the right of the lessor to bring suit for rent due in the future. The acceleration clause does not affect the actual measure of damages for breach of lease.”) (internal citation omitted).
With these acceleration of rent clauses, similar to acceleration clauses in mortgages, a landlord can accelerate the remaining rent due under the terms of the lease. The landlord is demanding that the tenant pay all of the rent due for the unexpired portion of the lease.
However, the landlord cannot retake possession of the leased premises and also recover acceleration. Mazo v. Grove Partners, By and Through Razook, 592 So.2d 1157 (Fla. 2d DCA 1992). For instance, if the landlord accelerates the rent and the tenant pays the rental payments based on the unexpired portion of the lease, the landlord cannot also retake possession of the premises. This would be unfair. The tenant would still be entitled to possess the leased premises in this circumstance.
However, if the landlord demands acceleration but no accelerated rent is actually paid by the tenant, this does not prevent the landlord from also alternatively seeking possession of the premises through an eviction proceeding. Mazo, supra. Further, just because the landlord demands acceleration does not mean the tenant is entitled to possession and can defeat an eviction proceeding specifically if it has not paid any of the accelerated rent. Id. Simply put, the landlord cannot collect the full amount due under the lease through accelerating the lease and also reap the benefit of possessing the leased premises (as the landlord has to give the tenant credit for rents received under the original terms of the lease if the landlord relets the premises). Quintero-Chadid Corp. v. Gerstein, 582 So.2d 685, 688-89 (Fla. 3d DCA 1991).
Naturally, which horse you fully ride (acceleration or eviction) largely depends on the tenant’s solvency and the leases premises.
Please contact David Adelstein at firstname.lastname@example.org or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.