Hankins v. Smith
| Decision Date | 15 December 1931 |
| Citation | 103 Fla. 892,138 So. 494 |
| Parties | HANKINS v. SMITH. |
| Court | Florida Supreme Court |
Commissioners' Decision.
Error to Circuit Court, Volusia County; M. G. Rowe, Judge.
Action by Wm. M. Hankins against Dean T. Smith. To review a final judgment for the defendant, plaintiff brings error.
Judgment affirmed.
Scarlett, Jordan, Futch & Fielding, of Deland, for plaintiff in error.
Gardiner & Gardiner, of Daytona Beach, for defendant in error.
This is an action at law based upon a contract of lease in which action that lessee seeks to recover damages sustained as a result of fifteen months' eviction from premises on which he had a ten-year lease, and the damages are sought against the lessor, without the joinder of the evictor who is a subsequent grantee and present holder of the feesimple title. A demurrer was sustained to the amended declaration as a whole, containing four counts, and final judgment for defendant was entered. The case is here upon writ of error.
Each of the four counts of the declaration states the cause of action in slightly varying language from the other three counts, but the fourth or last count probably best covers the allegations relied upon principally for a recovery, although all four are involved in this appeal.
It appears to be conceded in defendant's brief that, if the declaration had alleged that the constructive eviction of plaintiff lessee was brought about by grantee 'acting under the sanction and authority of the defendant lessor that defendant would not have a clear and undisputed defense.' The plaintiff insists that such words if set forth would have been demurrable as conclusions of the pleader, and contends that the declaration does allege ultimate facts which show that as a matter of fact the acts complained of were done under defendant's sanction and authority.
It must be conceded that, unless the defendant, Dean T. Smith sanctioned or in some manner caused the grantee, Roth, to effect a 'constructive eviction' of plaintiff, Smith could not be held responsible for an act with which he had no connection.
The nearest approach to such a charge in the declaration against Smith is that it is alleged in substance that he conveyed the fee-simple title to the property to Roth, a 'straw man,' and placed him in possession and control, and said Roth was then and now insolvent and judgment proof, and shortly after being in control Roth tore the roof and two upper stories from over the leased drug store and cause the damages alleged, and that the defendant, Smith, by and through the said Alan Roth, thus evicted the plaintiff, etc.
Under proper allegations a lessee in possession may show that a conveyance of the leased premises was a mere 'colorable sale,' or formal transfer with no bona fide intent to permanently deed away the property, but was made merely for the purpose of ousting the lessee; and, when sufficiently alleged, the question as to whether the sale was bona fide is one of fact for the jury to decide upon the evidence. See Diepenbrock v. Luiz, 159 Cal. 716, 115 P. 743, L. R A. 1915C, 240, 241, Ann. Cas. 1912C, 1084. The relation of landlord and tenant arising out of the contract, like other contracts, is vitiated by fraud or deception causing injury to the other party.
In substance plaintiff argues that, the lease having been made in 1924, the great increase in value of the leased premises by 1925 caused a colorable sale of the fee title to a judgment proof grantee who by tearing down the upper two stories of the building tried to evict permanently the plaintiff lessee.
It could hardly be maintained that there is alleged an 'actual' eviction. In fact it is noted from the declaration that the cause of action is apparently based upon a 'constructive,' rather than actual, eviction A 'constructive eviction' is an act which, although not amounting to an actual eviction, is done with the express or implied intention, and has the effect, of essentially interfering with the tenant's beneficial enjoyment of the leased premises. 36 C.J. 256, § 980. It may constitute a constructive eviction if the landlord does any wrongful act or is guilty of any default or neglect whereby the leased premises are rendered unsafe, unfit, or unsuitable for occupancy in whole, or in substantial part, for the purposes for which they were leased. 36 C.J. 264, § 992.
The contract of lease, omitting the formal parts, simply provides: That, in consideration of the covenants therein contained on the part of the said lessee to be kept and performed, the said lessors do hereby lease to the said lessee the property described, to have and to hold for a...
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Sans Souci v. Division of Florida Land Sales and Condominiums, Dept. of Business Regulation, AG-137
...including that of maintaining the sublessor in quiet possession through an implied covenant of quiet enjoyment. See Hankins v. Smith, 103 Fla. 892, 138 So. 494, 496 (1931); 34 Fla.Jur.2d Landlord & Tenant § 49 (1982). Consequently, the evidence must show not only an acceptance by the subles......
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...the tenant's use and enjoyment of the premises. The requisite intent can be implied or presumed from the act's effect. Hankins v. Smith, 1931, 103 Fla. 892, 138 So. 494. Generally, abandonment of the premises within a reasonable time after the landlord's wrongful act is a necessary element ......
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Griffin Indus., LLC v. Dixie Southland Corp.
...with tenant's business, despite repeated requests over ten-month period, constituted constructive eviction (citing Hankins v. Smith, 103 Fla. 892, 138 So. 494 (1931) )). Other than the events that transpired during the thirty-four days between the issuance of the Courtesy Notice and Griffin......
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Mann v. Thompson
...525, 312 P.2d 117; Burns v. Bines, 1948, 189 Md. 157, 55 A.2d 487, 57 A.2d 188.10 Young v. Cobbs, Fla.1959, 110 So.2d 651; Hankins v. Smith, 103 Fla. 892, 138 So. 494; Diamond Cattle Company v. Clark, 1937, 52 Wyo. 265, 74 P.2d 857, 116 A.L.R. 912; Wade v. Herndl, 1906, 127 Wis. 544, 107 N.......
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Landlord-tenant relations
...for the purposes for which they were leased. [ Plakhov v. Serova , 126 So. 3d 1221, 1224 (Fla. 4th DCA 2012) (quoting Hankins v. Smith , 103 Fla. 892, 138 So. 494, 495-96 (1931)).] A constructive eviction essentially amounts to a breach of the covenant of quiet enjoyment and peace. The elem......