Tags

, , , , , ,

BROWARD COUNTY SELF STORAGE, INC.,  is the owner and landlord of a commercial property in the City of Wilton Manors. The property consists of a single roofed building in which are half a dozen businesses are located.  Although the businesses each have their own separate  “unit” in the premises, they all share the same address, with no separate demarked  unit number.  Mail is delivered to a single mailbox, which all occupants share.

Landlord entered into a Master Lease with, Naturally Broward, Inc. which then sublet  separate units to different subtenants. The landlord  did not object to this arrangement and took an Assignment of Rents  and the subtenants paid  their rents directly to the  landlord.

On May 26, 2015, the landlord  served  a 3-day notice to the registered agent of  Naturally Broward, Inc.  The amount claimed on the 3-day notice was Naturally Broward’s  unpaid portion of real estate taxes.

A week later, landlord  filed  an eviction against “Units 1, 2, and 5 as shown on an attached drawing.”  The drawing does not clearly delineate which units are “1, 2, 5.”  On the day the eviction was filed, the subtenants were current in their rent.

A 5-day summons was posted on the premises by a private process server. The return, however, reflects the single address for the property, without any delineation of the precise location or business it was posted.

On June 2, 2015,  sub-tenant in unit 4, CHATEAU D’VINE, INC.,  attempted to tender  June rent to the landlord, who refused it.

On June 26, 2015,  Judge Stephen Zaccor entered a Judgment of Eviction  and  a Writ of Possession was eventually  was posted directly on the business of Chateau D’Vine.   This sub-tenant had  no prior notice of the  eviction.

A friend of the landlord  took it upon himself to contact the  local police  rather than wait for the county sheriff to execute the writ of possession.   An officer of the Wilton Manors Police Department advised Chateau D’Vine that it had until midnight to vacate the premises or it would be removed. Chateau D’Vine did so, feeling reasonably that it had no alternative.

Chateau D-Vine  filed to quash the writ of possession.  On review the court found that there was  substantial doubt that a single summons can be used against an entire parcel of commercial property where there are separately operating businesses.  First, there is some authority that a subtenant in possession is a tenant at sufferance, and as a result, must be served with an eviction summons.  Second, due process dictate that a subtenant who is in possession with the knowledge of the landlord, and is paying rent directly to the landlord at the landlord’s insistence, be provided meaningful notice and an opportunity to heard before being divested of possession.   “[D]ue process is a protean constitutional concept of rule according to law, fairness in the law’s proceedings, and fundamental rights.” J. Lieberman, Evolving Constitution 169 (1992). See Chef’s No. 4, Inc. v. City of Chicago, 117 Ill. App. 3d 410, 414, 453 N.E.2d 892, 895-96 (Ill. App. 1983) (subtenant entitled to notice); Arrieta v. Mahon, 31 Cal. 3d 381, 389 & n.7, 644 P.2d 1249, 1253-54 & n.7 (Cal. 1982) (same).   The writ of possession was vacated.

BROWARD COUNTY SELF STORAGE, INC., Plaintiff, vs. NATURALLY BROWARD, INC., Defendant, and CHATEAU D’VINE, INC., Intervener. County Court, 17th Judicial Circuit in and for Broward County. Case No. 15-13269 COCE 54. July 22, 2015. Robert W. Lee, Judge. 23 Fla. L. Weekly Supp. 184a

Advertisements