Property II, Pages 406–413

David Properties, Inc. v. Selk

Florida Court of Appeals, 1963

Facts:

Plaintiff sold defendant 320 acres for $50,000 with $5,000 up-front. The remainder was to be paid over five years at $9,000 each. After plaintiff sold the land, he continued to live on it, although defendant did not object to this at first. But after a couple years, defendant filed an ejectment suit against plaintiff. This resulted in a lease which leased plaintiff the house he was living in for $1 for the 70 days remaining in that year.

However, plaintiff still did not leave, but lived there almost two years after this lease expired. Just two months after the lease expired, defendant's president sent plaintiff letter notifying him that they would charge him $300 rent per month that he continued living there. The next year, he sent an invoice for this rent, reiterated the rent requirement, and clarified that this did not constitute a lease. Just under a year after this letter, plaintiff moved out.

While defendant had heretofore paid the first four payments, they did not pay the fifth. Plaintiff sent a letter saying that he would accept $9,000 plus interest as payment, to which defendant replied that it would pay it minus the $6,600 of rent for plaintiff living there. Plaintiff then initiated this suit to foreclose the mortgage on the property.

Procedural History:

Defendant conceded that it owed the $9,000, and the chancellor found against T's counterclaim, as plaintiff was an old man on the verge of senility living in an unsafe shack that had no value to defendant.

Issue:

Is defendant entitled to $300 per month in rent payment if plaintiff continued to live on the land without replying at all?

Defendant's Argument:

LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 338, Bottom (not in casebook)

"It HN2 is quite generally held that if a landlord notifies his tenant for a fixed term that in case he holds over beyond the term he must pay a specified increased rental, the tenant will become liable for such rental if he in fact holds over, and either remains silent with reference to the notice, or fails to express his nonassent to the terms thereof."

Plaintiff's Argument:

A Florida statute forbids demanding more than double the monthly rent of a tenant who refuses to give up possession of the premises at the end of his lease. As defendant gave him a lease for $1 for the 70 days remaining in that year, he could not have charged him more than $2 per 70 days when he did not leave. Since defendant demanded more than this, plaintiff has no obligation to pay him anything, in accordance with Florida law.

Even if defendant did ask for only double rent, defendant would only be entitled to reasonable rental value for the time that plaintiff retained the possession of the property, but the chancellor determined that the shack had no reasonable rental value, so defendant is entitled to no damages.

Rule:

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When a landlord demands a different rent for continued possession of property it owns, and a tenant receives that demand and thereafter continues on in possession without protest, the tenant impliedly agrees to pay the rent demanded.

Reasoning:

While defendant had many options they could have pursued, defendant demanded $300 per month, and plaintiff did not protest, thereby impliedly agreeing.

Holding:

Yes, defendant is entitled to $300 per month in rent. Dismissal of counterclaim reversed. $300 per month plus interest allowed as a setoff against the payment defendant owed plaintiff.

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