Law Offices of James W. Mallonee, P.A.
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Can Terms Under One Landlord Survive a Second Landlord

Can a new landlord alter the terms of a rental agreement before the rent period has terminated? The answer is yes and no. It all depends on any pervious actions which may have been waived and the written terms of the agreement. If the previous changes were not placed in writing, the result will likely not end well for either the renter or landlord.

Assume you are the renter and have been renting from the same landlord for 10 years. During the course of 10 years, you have orally discussed with the landlord about running a small retail business (e.g. Avon) out of your residence, but such business would be located in a separate part of the residence. It entails stocking inventory and on occasion meeting with clients at the residence. The rental contract states that no business activity is to be run out of the residence; however, the landlord is allowing it, but nothing in writing has been executed confirming the activity.

The landlord has elected to sell the residence and move to California. The new landlord after learning of the ongoing commercial business informs you that you are to terminate the business or he will have you evicted for violation of the terms of the agreement. Naturally, you balk at such aggression and seek assistance from your local attorney.

Your attorney examines the terms of the contract which has 24 months left before it expires. Your attorney looks for any modification of the written agreement allowing a commercial business to be run out of the residence or any form of waiver concerning the business…naturally there is none.

The agreement contains standard language regarding the terms of the contract consisting of the entire agreement and any changes need to in writing and signed by all parties. None of the provisions concerning a waiver or the granting of an exception to run a commercial business exists in the agreement. Worse, the agreement contains an anti-waiver provision which prevents previous activities which were not enforced to not be deemed a waiver of future activities. In essence, the tenant has little to fall back on with the new landlord.

The one thing the law does provide is equity when formulating judgments and decisions. Those type of decisions usually come down to the intention of the parties, viewing the whole picture of what is going on and what is the right thing to do given all of the facts. In this case, the court may view the length of time that the business has been running and whether the landlord was fully aware of the ongoing business. Moreover, what did the previous landlord do about it is especially important when it comes to determining the intent of the parties was over time.

So what is the answer in this hypothetical situation; if you are faced with something like this, the court will likely look to see what the parties did to avert this situation. For example, did the tenant make any effort to get the verbiage of the agreement changed and how frequently (this establishes some form of intent) was the effort made. In addition, did anyone make any effort to revert to the original lease (the time element of doing nothing) once the violation was made known. Given this situation the client is advised to get prepared for one difficult ride.

The message from this hypothetical is to get everything in writing and signed by all the parties who may be impacted by its outcome. You are better off having everything decided and agreed to before having to seek the court system for assistance. There simply is no carryovers from previous conditions unless it is in writing.

This article is intended for informational use only and is not for purposes of providing legal advice or association of a lawyer – client relationship.

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