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Attorney Charles D. Franken of  Plantation Florida wins this week’s brass balls award.  Attorney Franken, was defending a month to month tenant in a eviction  for non-payment of rent.   The property had then gone into foreclosure.   The tenant’s defense to non-payment of rent:   that the foreclosure  deprived the tenant of his peaceable enjoyment of the property thus constituting a “constructive eviction and entitling the tenant to a judgment against the landlord for three months rent.

The court ruled that a “constructive eviction” arises in Florida when “an act, although not amounting to an actual eviction, is done with the express or implied intention, and has the effect of essentially interfering with the tenant’s beneficial enjoyment of the leased premises.” Hankins v. Smith, 103 Fla. 892, 895, 138 So. 494, 495 (1931); Berwick Corp. v. Kleimginna Investment Corp., 143 So.2d 684, 687 (Fla. 3d DCA 1962). However, merely being a tenant in a property being foreclosed does not on its own result in a finding that a constructive eviction has occurred. See Carter v. Gilbert, 99 Fla. 1056, 1058, 128 So. 250, 251 (1930); Paine v. Kemp, 77 Fla. 531, 532, 82 So. 53, 53 (1919) (distinguishing foreclosure and constructive eviction). On the other hand, when utilities and other services had been discontinued while a property was in foreclosure, the tenants had grounds to claim a constructive eviction had occurred. Sens v. Slavia, Inc., 304 So.2d 438, 440 (Fla. 1974).

In the instant case, the tenant was a month-to-month tenant. The foreclosure action did not render the property uninhabitable or untenantable. See Benson v. Albert’s Carpet of Tequesta, Inc., 15 Fla. L. Weekly Supp. 1121a (15th Cir. Ct. 2008). The Defendant was not forced out of the premises — indeed, he is still in possession some seven months after the foreclosure action was filed. Moreover, the tenant’s month-to-month tenancy was not affected at all, and his “beneficial enjoyment” of the property has not been interfered with. His obligation to pay rent has not been excused.

TELFAIR-OIERCEW vs. GASKIN,. County Court, 17th Judicial Circuit in and for Broward County. Case No. 10-11259 COCE (53). 18 Fla. L. Weekly Supp. 310a