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reversalfortuneOn June 20, 2014 the 5th District Court of Appeals answered a question certified by the Brevard County Court as a matter of great public importance.

The query posed is: “[w]hether an addendum, providing for liquidated damages or an early termination fee, as provided in the rental agreement, in the form set forth in § 83.595(4), Fla. Stat., constitutes a valid, binding obligation, where the parties’ lease, in the form approved by the Florida Supreme Court and The Florida Bar, omits any reference to liquidated damages or an early termination fee.”

The county court answered “No,” concluding that a liquidated damages clause has to be in both the lease and the addendum.

The appellate court rejected this and stated that “the law is well established that two or more documents executed by the same parties, at or near the same time, and concerning the same transaction or subject matter are generally construed together as a single contract.” “This rule bears the moniker “contemporaneous instrument rule.”

The appellate court expressed its belief that the addendum was signed at the same time as the lease and also noted that it was described as “page 7 of 7” of the lease.

The appellate court held that “when a tenant and the landlord execute an addendum choosing the remedy of liquidated damages or an early termination fee pursuant to section 83.595, the remedy is enforceable if the addendum is executed at the same time as the lease (which does not make provision for the remedy) as part of the same transaction.”

RAISSA WILSON, Appellant,v. WILLIAM TERWILLINGER, Appellee.  Case No. 5D13-1478 DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT. Opinion filed June 20, 2014

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