LAKEWAY MANAGEMENT COMPANY OF FLORIDA, INC., A FLORIDA CORPORATION D/B/A LAKEWAY COMPANIES, APPELLANT,
v.
IRWIN STOLOWILSKY AND LINDA STOLOWILSKY, APPELLEES
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Lakeway Management sued tenants Stolowilsky for unpaid rent after they vacated early from a one-year condominium lease. The trial court allowed a constructive eviction defense that was not pleaded and denied attorney's fees, awarding only rent for actual occupancy. The appellate court reversed, finding the constructive eviction defense was improperly permitted and attorney's fees should have been awarded.
The trial court erred in permitting the constructive eviction defense because the condition precedent to that defense—a timely written complaint—was not satisfied until after the lessor's statutory notice. The lessor is entitled to attorney's fees pursuant to the lease agreement because the lessor prevailed on the merits.
[1] A tenant must provide written notice of a condition to the landlord as a condition precedent to asserting the defense of constructive eviction.
[2] A trial court errs in permitting a defense to be raised when the condition precedent for that defense has not been met.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Only after the lessor sent a three-day notice pursuant to Section 83.20(2), Florida Statutes (1985) did the tenant make a complaint in writing which would meet the condition precedent to urging constructive eviction.”
Establishes that the condition precedent to a constructive eviction defense was not satisfied until after the lessor's notice, making the defense improperly pleaded.
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Join FLexlaw to unlock all legal intelligenceThe Stolowilskys leased a condominium for one year (November 15, 1985 to November 14, 1986) at $600 per month. They vacated at the end of March 1986, …
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PER CURIAM.
The Stolowilsky’s leased a condominium at the Treasure Bay Club Condominium, North Bay Village, Florida, for a period of one year, November 15, 1985 to November 14, 1986. The lease called for the payment of $7,200.00 in rent at $600.00 per month. The Stolowilskys vacated the premises at the end of March, 1986. Lakeway, as lessor, brought suit to recover the balance of the rent due for the entire term. At the conclusion of a bench trial the trial court entered a judgment for the lessor, but only for the period of actual occupancy, having permitted an amendment at the outset of the trial to urge constructive eviction as a defense. The trial court also denied attorney’s fees to the lessor. This appeal ensued.
The lease agreement required the Sto-lowilskys to pay $1,800.00 for the first and last months rent and one months security. The Stolowilskys paid $600.00 monthly rent in December, 1985, and then failed to pay any rent until they vacated the premises in March of 1986. Lakeway urges that the trial court erred in allowing appellees to raise the defense of constructive eviction, despite the fact that no such defense had been pleaded, and that the trial court should have granted attorney’s fees pursuant to the lease agreement. We reverse.
Only after the lessor sent a three-day notice pursuant to Section 83.20(2), Florida Statutes (1985) did the tenant make a complaint in writing which would meet the condition precedent to urging constructive eviction. See Section 83.60(1), Florida Statutes (1985). We therefore find that the trial court erred in permitting this defense to be raised. The lessor having prevailed and the lease providing for attorney’s fees in such instances, the trial court should have awarded such a fee. We therefore return the matter to the trial court for trial on the issues as made by the pleadings, with instructions that if the lessor prevails it be awarded attorney’s fees pursuant to the lease. See & compare, Xanadu of Cocoa Beach, Inc. v. Lenz, 504 So. 2d 518 (Fla. 5th DCA 1987); Machado v. Foreign Trade, Inc., 478 So. 2d 405 (Fla. 3d DCA 1986); Commodore Plaza at Century 21 Condominium Association, Inc. v. Cohen, 350 So. 2d 502 (Fla. 3d DCA 1977); Reiss v. Goldman, 196 So. 2d 184 (Fla. 3d DCA 1967).
Reversed and remanded with directions.
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Citator
Cited By
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Boulevard Shoppes v. Pro-1 Realty, Inc., 605 So. 2d 1317 (Fla. 4th DCA 1992)…nd the tenant provided that if the landlord prevailed, it would be entitled to recover attorney’s fees and costs. Therefore, the landlord on remand should recover attorney’s fees and costs. See Lakeway Management Co. of Florida, Inc. v. Stolowilsky, 527 So. 2d 950, 951 (Fla.3d DCA 1988). [*1319] The final order is reversed and remanded for further proceedings. GLICKSTEIN, C.J., and LETTS and STONE, JJ., concur.…
Authorities Cited
- Commodore Plaza AT Century 21 Condo. Ass'n, Inc. v. Cohen, 350 So. 2d 502 (Fla. 3d DCA 1977)
- Gregorio MacHado and Sounds S.R.L. v. Foreign Trade, Inc., 478 So. 2d 405 (Fla. 3d DCA 1985)
- Xanadu OF Cocoa Beach, Inc. v. Lenz, 504 So. 2d 518 (Fla. 5th DCA 1987)
- Riess v. Goldman, 196 So. 2d 184 (Fla. 3d DCA 1967)