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Articles Posted in Commercial Leasing

ORivera2014By:  Oscar R. Rivera

For commercial real estate landlords, guaranty agreements requiring the principal owners of small businesses to personally guaranty the obligations of the corporate tenant are standard operating procedure. In addition, commercial landlords oftentimes also require the corporate guaranty of a parent or other affiliated company, if the creditworthiness of a corporate tenant or franchisee is questionable.  One question that is often posed is whether waivers of defenses by guarantors in such guaranty agreements are enforceable?  Fortunately, for property owners in Florida, if the waivers are properly drafted, the answer is yes.

The waiver of defenses paragraph helps property owners avoid costly and disruptive litigation if legal action becomes necessary to enforce a guaranty.  Guaranty agreements containing language that clearly and unambiguously waives defenses to the enforcement of the guaranty have been strictly construed and enforced by Florida courts.

A typical waiver provision reads as follows:

“Guarantor hereby expressly waives (a) notice of acceptance of this Guaranty; (b) presentment and demand for payment of any of the Liabilities of Tenant; (c) protest and notice of nonpayment, nonperformance, nonobservance or default to Guarantor or to any other party with respect to any of the Liabilities of Tenant; (d) all other notices to which Guarantor might otherwise be entitled; (e) any demand for payment under this Guaranty; and (f) any and all defenses relating to Landlord’s failure to perfect a security interest in Tenant’s property and/or seize or attach any other collateral.”

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For many businesses, finding the right location at the best possible lease rates and with the best terms is among their most pressing and impactful challenges for the future of the enterprise.  The business location and the costs of leasing the space can often be among the foremost determining factors in a company’s long-term success.  As such, the negotiation of the terms of commercial leases is typically of the upmost importance.

For tenants, the best way to start is for the principals to gather information on the neighborhoods and locations that hold the most promise.  In addition to turning to highly experienced and qualified commercial real estate brokers for guidance, they should do their own research and become educated.  Prior to any meetings with prospective landlords and their representatives, they should take the time to conduct a thorough SWOT analysis to identify the strengths,cre2-300x237 weaknesses, opportunities and threats related to every prospective property.

This exercise, which is also beneficial for landlords to employ when assessing their lease offers, will help to enable businesses and organizations to develop a list of the priorities that they seek for each and every location.  Both landlords and tenants can use this form of analysis to create an agenda for their discussions.

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Co-tenancy clauses allow key retail tenants a reduction in rent if other key tenants or a certain number of other tenants leave a center.  While not common for smaller retailers, they are more common for anchor tenants.  Anchor stores and other key tenants draw significant traffic to centers, and they are often among the primary reasons other tenants select their location.

With all of the challenges plaguing some retailers, including store closings by such major national retailers as Macy’s, K-Mart, Sears, Sports Authority, Kohls and Toys-R-Us, landlords could face significant losses when their remaining tenants demand rent reductions based on their co-tenancy clauses.

leasesign2Typical ongoing co-tenancy clause requirements state that if one or more specified co-tenants are no longer open and operating, the landlord has a set timeframe (typically 90 to 180 days) during which it must secure one or more comparable replacement tenants.  If it fails to do so, the remaining tenants with ongoing co-tenancy clauses will pay alternate rent amounts until replacement tenants are operating.  Ultimately, if no replacements are found for periods typically ranging from 12 to 18 months, the remaining tenants may have the right to terminate their leases.

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The recent news from KLX Aerospace Solutions, the world’s leading distributor and service provider of aerospace fasteners and consumables, of its build-to-suit lease for its new global headquarters and distribution hub totaling more than 500,000 square-feet in Medley drew a great deal of attention in the aviation and real estate industries.

The lease represents the relocation and expansion of the company’s local facilities, and it helps to solidify South Florida’s stature as one of the world’s fastest-growing logistics, trade and air transport hubs.

klx1The company will add 100 jobs to its existing 600 as it expands from its existing Doral headquarters (see photo) to the newly built facility.  The building will be located at the intersection of NW 107 Street and 97 Avenue between Florida’s Turnpike and I-75 in Countyline Corporate Park.  It will include two floors of office space with the ability to expand as well as a state-of-the-art storage and distribution area.  KLX is one of many major players in the aviation industry with a presence in the Miami and Doral area, including Lockheed Martin and World Fuel Services.

Our firm’s other real estate attorneys and I congratulate KLX and all of the professionals who played a role in making this major aviation sector real estate deal come to fruition.  Click here to read the company’s press release on the new lease.

I am proud to be participating in the International Council of Shopping Centers (ICSC) RECon event, which will be taking place at the Las Vegas Convention Center & Westgate Hotel May 22-25, 2016.  This four-day educational program is the largest retail real estate exhibition and conference in the world, with more than 36,000 industry executives, retailers, financial companies, and product and service suppliers in attendance each year.

On Tuesday, May 24, I will be presenting the session titled “The Economics of a Lease: Developers and Retailers Perspectives,” which will cover the strategies and tactics of negotiating monetary provisions, including minimum and percentage rent clauses, security deposits, operating costs, real estate taxes and T/I payments.  icsclogo2015Participants will be led through an analysis of key elements of each of the lease provisions.  The session is scheduled to take place from 9 to 10:30 a.m.  Click here for additional program details.

Founded in 1957, ICSC is the global trade association of the shopping center industry with more than 60,000 members in the U.S., Canada and over 90 other countries.


I am proud to be participating in the International Council of Shopping Centers (ICSC) University of Shopping Centers event, which will be taking place on the campus of the Wharton School at the University of Pennsylvania on March 7-9, 2016.  This three-day educational program will enable attendees to gain a higher level of knowledge of the retail real estate industry by learning directly from experienced professionals.

On Tuesday, March 8, I will lead the course titled “Economics of a Lease: Developers and Retailers Perspectives,” which will cover the strategies and tactics of negotiating monetary provisions, including minimum and percentage rent clauses, security deposits, operating costs, real estate taxes and merchants/marketing fund payments. The course is scheduled to take place from 2 to 5 p.m. Please click here for additional program details.icsclogo2015

Founded in 1957, ICSC is the global trade association of the shopping center industry with more than 60,000 members in the U.S., Canada and over 90 other countries.

A report in the latest issue of the International Council of Shopping Centers’ magazine Shopping Centers Today chronicles how major shopping mall operators across the country effectively filled what was an unusually large glut of empty store space in the first half of 2015.

The report includes data from the most recent quarterly financial disclosures from such industry giants as General Growth Properties, CBL & Associates Properties, Macerich, and Taubman Centers. All of the companies reported that they made strong progress in re-leasing their vacant stores, many of which stem from closures by retailers that also took place during the first half of the year.

Click here to read the complete article in the magazine’s website.


A ruling filed on July 22 by the Second District Court of Appeal overturned the circuit court’s summary judgment in favor of a landlord for the eviction of its tenant that operated a restaurant and a separate nightclub from its two spaces at the property. The ruling adds clarity to the burdens that must be met for summary judgments granting commercial evictions.

In the case of Atria Group v. One Progress Plaza, II, Atria Group took possession of the two suites in April 2010, and One Progress Plaza filed for eviction in September 2013 alleging that Atria had committed numerous nonmonetary violations including damage to the property, illegal activity, disregard of building rules and other lease requirements, unsanitary conditions, and failure to clean the premises.

Atria promptly filed its answer and affirmative defenses, as well as a request for mediation and a counterclaim. It denied the majority of the allegations regarding the claimed breaches, and it argued that One Progress Plaza failed to give the requisite notice of breach and opportunity to cure, and the eviction would cause an inequitable forfeiture based on Atria’s $2 million investment into the promotion and renovation of the premises and its payment of $25,000 per month in rent since 2010.

In pursuit of its motion for summary judgment, the landlord filed an affidavit which outlined the alleged violations of the lease. The circuit court granted summary judgment for eviction in favor of the landlord, and the tenant appealed.

2dca.jpgThe appellate panel’s opinion notes that the lease agreement between the parties provides an important caveat for the establishment of material defaults and breaches of the lease:

“(3) The failure by Lessee to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Lessee . . . where such failure shall continue for a period of ten (10) days after written notice thereof from Lessor to Lessee; provided, however, that if the nature of Lessee’s default is such that more than thirty (30) days are reasonably required for its cure, then Lessee shall not be deemed to be in default if Lessee commences such cure within said 30-day period and thereafter diligently prosecutes such cure to completion.”

The appellate ruling concludes that the circuit court erred in granting the summary judgment for eviction because the landlord’s property manager acknowledged in his deposition that most of the alleged defaults or violations of the lease had, in fact, been corrected, and the affidavits provided by both parties raise issues of material fact about the occurrence of the alleged defaults and Atria’s curative acts within the terms of the lease. The panel also found that One Progress Plaza failed to establish that the alleged violations of the lease were material, given that Atria was remedying any problems as they arose, and the landlord failed to refute all of the tenant’s affirmative defenses or to establish that they were legally insufficient.

The court was also swayed by Atria’s assertions that eviction would cause an inequitable forfeiture based on its $2 million investment into the promotion and renovation of the premises and its continuous payment of the rent since 2010. It found that the tenant may be able to prove that it would be inequitable to terminate the lease in light of its significant investment in the property.

The appellate court’s opinion reiterates the stringent nature of the burdens that typically must be met for summary judgments for commercial evictions. In reversing the summary judgment for eviction, the appellate court remanded the case back to the circuit court for further proceedings, and its findings as to the validity of the tenant’s assertions and affirmative defenses should prove to be very influential in the case.

A recent opinion by the Fourth District Court of Appeal serves as a reminder to commercial tenants of the challenges of proving lost profit damages in landlord-tenant disputes.

In the case of Victoriana Building, LLC v. Ft. Lauderdale Surgical Center, LLC, the landlord appealed the circuit court’s final judgment in the tenant’s favor regarding the landlord’s breach of the lease, and the tenant cross-appealed the lower court’s decision not to award it damages for alleged lost business value or out-of-pocket expenses.

The appellate panel affirmed the circuit court’s findings in favor of the tenant and guarantor on the liability issues, and it also reversed the denial of the tenant’s out-of-pocket expenses claim. However, the court affirmed the lower court’s denial of the tenant’s lost business value claim.

On the liability issues, the appellate court concluded that the trial court properly determined that “the landlord first breached the lease by failing to provide code-compliant means of fire egress, and that the tenant therefore was excused from any further obligation under the lease.” Because the lease required the tenant to prepare the premises for the tenant’s specific use, and because the landlord breached its obligations under the lease, the appellate court found the landlord liable for all of the tenant’s out-of-pocket expenses to build out the space. 4dca.jpg These expenses totaled more than $975,000. Property owners should take note that a landlord can be liable for a tenant’s construction costs if it fails to perform its obligations under a lease.

As to the tenant’s lost business value claim, the appellate court found as follows with respect to the ruling by the trial court:

[T]he court properly determined that the tenant’s proof was speculative and therefore insufficient. “Lost profits are typically proven by one of two methods: (1) the before and after theory; or (2) the yardstick test.” (citation omitted). “The yardstick test is generally used when a business has not been established long enough to compile an earnings record that would sufficiently demonstrate lost profits and compares the profits of businesses that are closely comparable to the plaintiff’s.” (citation and quotation marks omitted). Here, the tenant’s expert consultant, in analyzing the viability of the tenant’s proposed facility, did not evaluate any comparable facility’s profitability as a “yardstick,” and the tenant’s expert CPA acknowledged that his report, which was based on the consultant’s report and forecast, was only “as good or as bad as [the consultant’s] forecast.” Thus, the tenant’s proof was insufficient.

Just as landlords should be aware of their potential liability for failure to perform their lease obligations, tenants also should be aware that an award of any damages other than out-of-pocket expenses will require additional proof. This appellate opinion illustrates that businesses which are seeking lost profit damages must understand the nature of the expert analysis and testimony that the courts will require in order to support their claims.

Our firm’s other real estate attorneys and I write regularly in this blog about important legal and business issues for the real estate industry in Florida, and we encourage industry followers to submit their email address in the subscription box at the top right of the blog in order to automatically receive all of our future articles.

A recent ruling by the First District Court of Appeal (Amelia Island Restaurant II, Inc. v. Omni Amelia Island, LLC) protected a commercial real estate tenant’s right to maintain its exclusivity provision through each of its lease extension options as stated in the terms of its lease.

Amelia Island Restaurant II operated a restaurant (pictured below) in the Shops at Amelia Island Plantation in Nassau County. In 2012, the restaurant and landlord entered into litigation over its eligibility to renew the lease and whether the lease’s exclusivity provision preventing another full-service restaurant from operating in the Shops remained in effect.

The trial court ruled that the restaurant could renew its lease for another five years, but the landlord prevailed on the exclusivity issue. Both parties subsequently appealed.

The appellate panel affirmed the trial court’s ruling to allow the eatery to renew its lease, and it also reversed the lower court’s ruling on the exclusivity issue. The appellate court found that under the terms of the lease, the restaurant had an option to renew for a third five-year term in 2013 if it was not in default as of either the date that it gave the landlord written notice to exercise the option or on the last day of the first-option term. plaeamelia.jpg Both parties agreed that the restaurant was not in default on May 1, 2013, which was the last day of the option term, but they disagreed whether it was in default seven months earlier on September 25, 2012, which was the date it provided notice to renew the lease.

The landlord argued that the restaurant was effectively barred from renewing as of the September date because it owed interest on earlier past-due rent payments and a $50 processing fee. The trial court found, however, that the restaurant was not in default, and the appellate court affirmed the ruling, stating that the lower court’s finding “is supported by competent, substantial evidence – particularly the letter from Omni’s attorney just after delivery of the renewal notice stating that the Restaurant could exercise the option after addressing other (non-interest and non-processing fee) issues.”
The appellate court also concluded that Florida law does not require the invalidation of the lease’s exclusivity provision. The opinion reads:

“In sum, all of the evidence adduced at trial about the length of the Lease’s restrictive covenant, as originally negotiated by the parties, supports the conclusion that the exclusivity provision continues serving what the trial court considered to be an “[u]nquestionably” legitimate business purpose.

Finally, the trial settled any textual ambiguity concerning the length of the Lease’s exclusivity provision. The unrebutted testimony of witnesses representing both of the original contracting parties was that they intended the exclusivity provision to be effective throughout both the Lease and Option Terms, twenty years maximum.”

This major appellate win for the restaurant tenant highlights the approach that the Florida courts will take in interpreting exclusivity provisions that are renewable under the option terms for commercial real estate leases. Our firm’s other real estate attorneys and I write regularly in this blog about important legal and business issues for the real estate industry in Florida, and we encourage industry followers to submit their email address in the subscription box at the top right of the blog in order to automatically receive all of our future articles.

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