Paul v. Kanter, 64-506

• Decision Date: 16 February 1965
• Docket Number: No. 64-506,64-506
• Parties: Samuel PAUL and Clara Paul, his wife, Appellants, v. Harry KANTER and Sally Gardner, Appellees.
• Court: Florida District Court of Appeals

Page 26

172 So.2d 26

Samuel PAUL and Clara Paul, his wife, Appellants, v. Harry KANTER and Sally Gardner, Appellees.

No. 64-506.

District Court of Appeal of Florida, Third District.

Feb. 16, 1965.

Rehearing Denied March 9, 1965.

Tobias Simon, Miami, for appellants.

Klein, Moore & Kline and Morton P. Brown, Miami Beach, for appellees.

Before CARROLL, HORTON and HENDRY, JJ.

HENDRY, Judge.

Plaintiffs-appellees owned the fee simple title to certain vacant land which they leased to Seymour and Shirley Seldin for a term of 99 years at $1,900 per annum, payable on each October 25 thereafter. The Seldins later constructed an appartment building on the property. Thereafter the Seldins assigned their interest in the lease to Clara Paul, one of the appellants. Clara Paul operated and managed the building with the help of her husband, Samuel Paul, for a period of about two years. On October 25, 1963 the rental of $1,900 for the period October 25, 1963 to October 25, 1964 became due and was unpaid. The landlord caused the Pauls to be evicted on December 17, 1963 by a landlord and tenant action in the Civil Court of Record.

Thereafter the plaintiffs filed suit against Clara Paul and Samuel Paul wherein it was claimed that the Pauls occupied the premises pursuant to the terms of the lease agreement entered into by and between the plaintiffs and the Seldings, the original lessees; that by acceptance of the assignment thereof and the payment of rent thereunder, they have recognized the plaintiffs as lessors and the plaintiffs have recognized the assignees as lessees under the lease.

The plaintiffs sought as damages, inter alis, the entire rental due October 25, 1963 in the sum of $1,900 together with the mortgage payments due to Biscayne Federal Savings & Loan Association which were unpaid and were due on October 1, 1963, November 1, 1963 and December 1, 1963. Claim was also made for unpaid personal property taxes, license fees, water bills and fees for plaintiffs' counsel, all of which were obligations under the lease agreement.

Judgment was entered against Clara Paul and Samuel Paul for the full amounts claimed above, together with attorney fees of $750 and costs, for a total of $5,355.90. It is from this judgment that defendants appeal.

Appellants take the position that if there is liability to the landlord under the lease then only Clara Paul is liable, and her liability should be limited to the amount due for rent for the period she was in actual possession of the premises.

We can not agree that Clara Paul's liability is so limited. We do, however, agree that it was error to find that Samuel Paul was liable in any amount to the landlord. He was not an assignee of the lease, and the record does not show sufficient legal or factual basis to support the judgment against him. The judgment as to Samuel Paul is therefore reversed.

Appellant, Clara Paul, was an assignee of the lease, and was in privity of estate with the lessors. She thereby became liable to them for breach of lessees' covenants which were annexed to and ran with the leasehold ¹ and which were broken while she held the leasehold estate. ²

We find no merit in appellants' argument that since the rent payment which fell due on October 25, 1963 was payment for a period of one year in advance, she was entitled to have the amount pro-rated so that the extent of her liability would be limited to the period in which she was actually in possession of the premises.

In Wagner v. Rice, 97 So.2d 267, 271, our Supreme Court said:

'* * * [I]n Florida we have held that where a lessee pays rent in advance and the lease is properly terminated by the lessor before the advanced rental payment is consumed by occupancy of the tenant the lessor is not obligated to return to the lessee the amount of the advance rental payment that would otherwise have applied beyond the date of termination. [Citations omitted.]

'This Court, by analogy, has therefore aligned itself with those authorities which adhere to the rule that a lawful 'eviction is no defense to a claim for...