Law Offices of Robin Bresky Obtains Reversal of Order That Landlord Return “Advance Rent” Following Proper Termination of Tenant’s Lease

Law Offices of Robin Bresky Obtains Reversal of Order That Landlord Return “Advance Rent” Following Proper Termination of Tenant’s Lease

Atlantis Estate Acquisitions, Inc. v. DePierro, 4D11-295

The Law Offices of Robin Bresky recently obtained reversal of a final judgment following trial, which ordered a landlord of residential property to return a large sum of rent to a former tenant. The evidence showed that the tenants had made one large lump-sum rent payment intended to cover the entire year rental period. The trial court found that the landlord had properly terminated the tenants’ occupancy of the premises based on damage to the home. However, the trial court found that the large lump-sum rent payment the tenants had made prior to moving in was “advance rent” under Florida Statute 83.43(9). The trial court ordered the landlord to return the “unused portion” of rent based on the court’s finding that the rent was intended as advance rent for monthly payment periods. The trial court found that the landlord would be unjustly enriched if it kept the rent.

On appeal, we argued that the tenants’ rent payment could not be considered advance rent under the statute because there was only one rental period, rather than the multiple “future rent payment periods” discussed in the advance rent statute. We argued that the only “rent payment period” was the current rent payment period of one year for which the tenants paid. We also argued that the landlord was legally entitled to retain the “unused” portion of the rent money regardless, because the landlord’s termination of the lease was proper. Finally, we argued further that unjust enrichment was inapplicable since a written lease governed the agreement between these parties.

The Fourth DCA agreed with our position. The Fourth DCA held that the rent payment did not constitute advance rent and that, even if it was advance rent, the landlord should still not have been required to repay it where the landlord properly terminated the lease. The Fourth DCA also held that unjust enrichment did not apply. This reversal allows our landlord client to retain the $38,500 in rent that it was ordered to repay the client, and also affirmed that our client is not liable for the tenants’ attorney’s fees.
** At this time, the time for a motion for rehearing has not expired and the court’s mandate has not yet issued. **