What Happened: Construction delays forced a shopping center landlord and restaurant tenant to push back the commencement date of the lease they signed in 2017 to Dec. 1, 2021. The tenants finally opened for operation in September 2022 and made all subsequent rent payments. However, the landlord claimed that the tenant was also liable for over half a million dollars in rent accruing from Dec. 1, 2021. Citing a July 2022 email exchange, the tenant argued that it wasn’t on the hook for that rent because the parties had agreed to change the commencement date. Even if there was such an agreement, it wouldn’t be enforceable, the landlord countered, based on the following language from the lease: 

All negotiations, considerations, representations, and understandings between Landlord and Tenant are incorporated herein and may be modified or altered only by agreement in writing between Landlord and Tenant, and no act or omission of any employee or agent of Landlord shall alter, change, or modify any of the provisions hereof.

Ruling: The Florida court denied the landlord’s motion for summary judgment—that is, judgment without trial on the basis of the pleadings. 

Reasoning: The lease clause barring oral modification didn’t make this an open-and-shut case, the court reasoned. “It is well-established that despite prohibitive language, a written contract may be modified by parol where the oral modification has been accepted and acted upon by the parties in such manner as to work a fraud on either party to refuse to enforce it.” The email exchanges in this case created a genuine question about whether the sides had, in fact, reached a “meeting of the minds” on pushing back the lease commencement date. As a result, the case had to go to trial.  

• Dania Live 1748 II LLC v. Saito Dania, LLC, 2024 U.S. Dist. LEXIS 175527