USA - FLORIDA Law and Practice Contributed by: Jeffrey R Margolis, Marc S Shuster, James L Berger and Evan Rosenberg, Berger Singerman LLP
• assume or assume and assign leases to third parties (notwithstanding pre-petition defaults or anti-assignment provisions in the leases), as long as defaults are cured and the assign - ee provides adequate assurance of future performance; or • negotiate amendments to the terms of its leases. 6.16 Forms of Security to Protect Against a Failure of the Tenant to Meet Its Obligations Landlords typically require tenants to post a security deposit to protect against a default of its lease obligations by the tenant, and to pro - vide security for any damage done to the leased premises. The security deposit can be in the form of cash, letter of credit, or a security bond. The amount of the security deposit varies but it is usually equal to one- or two-months’ rent. 6.17 Right to Occupy After Termination or Expiry of a Lease If the lease expires and the tenant holds over in the possession of the premises, this is con - sidered a tenancy at sufferance. If the landlord accepts rent during the holdover term, this is not a renewal of the term. However, if the landlord provides written consent to the holdover, the tenancy becomes a tenancy at will. The term of a tenancy is based on the frequency of the rental payments. 6.18 Right to Assign a Leasehold Interest In most cases, a tenant is permitted to assign and/or sublease its leasehold interest, but any such transfer is usually subject to landlord approval. The landlord’s approval, in most cas - es, shall be reasonable and based upon numer - ous factors, including the proposed assignee or
sublessee’s financial health, reputation and busi - ness. In the event the landlord approves of the tenant’s request to assign a lease, the original tenant will usually continue to remain liable under the lease (but will nevertheless be protected from such liability in the assignment documents). Any additional consideration paid in connection with a transfer – whether by way of a lump sum pay - ment or agreed upon rent that is greater than the amount contemplated by the original lease – will either be forfeited to the landlord or split among the landlord and original tenant. 6.19 Right to Terminate a Lease A landlord can typically terminate a lease for a monetary default. A landlord may also terminate a lease if a tenant fails to comply with the non- monetary obligations under the lease. 6.20 Registration Requirements In Florida, there are no registration requirements or particular execution formalities. As of 1 July 2020, Florida abolished the need for commer - cial leases greater than one year to be signed in the presences of two witnesses. Factors like the pandemic and the growing use of electronic sig - nature heavily contributed to the introduction of the original witness rule. Landlords will normally include express language in leases forbidding a tenant from recording leases or memorandums of leases in the public records. The only excep - tion is ground leases, where the tenant is usu - ally permitted to record a memorandum of lease putting third parties on notice of their lease inter - est encumbering the real property. Normally, the only fees payable in connection with the recor - dation of a ground lease are standard recording fees – no taxes or doc stamps. 6.21 Forced Eviction A landlord may evict a tenant in the event of a tenant default prior to the lease expiry date. An
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