Commercial Landlords Beware of Breaching the Ever Expanding Implied Covenant of Quiet Enjoyment

Absent a contractual provision to the contrary, every commercial lease agreement entered into in the state of Florida carries an implied covenant of peaceable and quiet enjoyment. The covenant of quiet enjoyment is equivalent to a representation by the landlord that the tenant will not be evicted or estopped by good title in possession of the leased premises or any part thereof. While it is commonplace for commercial landlords to engage in maintenance, construction and/or other activities in the common areas of a shopping center, tenants that are attempting to be relieved of their obligations under the lease will inevitably contend that a landlord's foregoing actions constitute a breach of the implied covenant of quiet enjoyment. Commercial landlords have routinely defended such claims and/or rebutted such defenses by contending that their actions did not rise to the level of constructive eviction and/or that their actions occurred solely within the common areas – not the leased premises. However, these arguments may carry less weight after a recent ruling in the case of Coral Wood Page, Inc. v. GRE Coral Wood, LP. In this case, the Second District Court of Appeal held that tenants can assert a claim for breach of the implied covenant of quiet enjoyment and/or maintain such a defense even when the landlord and/or their authorized agent's actions did not rise to the level of eviction and that the covenant of quiet enjoyment encompasses a landlord and/or their authorized agent's actions occurring not only in the leased premises, but also the common areas. Accordingly, commercial landlords should take caution and confer with counsel prior to engaging in any actions in the common areas of the commercial property (including common areas and other tenant spaces) that could potentially interfere with a tenant's use of its leased premises.

Amanda Jassem Jones

Reimer & Rosenthal LLP

2115 North Commerce Parkway

Weston, FL 33326

954-384-9200

amanda@reimer-rosenthal.com