Vol 1

Dear Friends and Clients,

As many of you know, I recently re-established my own law firm after spending some time as a partner at Arista & Feldman, P.L. In branching out, I've been fortunate to maintain close ties to those I worked with, while also being able to explore new and exciting professional opportunities. One thing that will never change, however, is my commitment to keeping our friends and clients up to date on legal issues of interest within our practice areas. As part of that commitment, I'm proud to present you with our first issue of "Get Briefed," a regular E-Newsletter prepared for the benefit of those we care about most. I look forward to hearing your feedback and to many more issues to come.

Best Regards,

Andrew M. Feldman

SAY IT WITH SPECIFICITY (EXTENDING ENFORCEABILITY OF THE NON-COMPETE AGREEMENT)

It could be argued that one of the most valuable contractual tools available to a company in negotiating with executives or management personnel is an agreement not to compete with the company in the future. After all, how terrible a fall-out for a top executive or employee to leave with a wealth of knowledge, and possibly the company’s business or client information, only to set up shop right down the street doing the same thing as his/her prior company. This circumstance happens often in business, and when it happened to one Florida company, that company did what businesses in that situation often do – file suit seeking to enjoin (stop) the “improper” competition. However, as gleaned from the Court’s ruling discussed below, specificity in your contract can be key.

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TO CONSENT OR NOT TO CONSENT, THAT IS THE QUESTION – (LEASES AND THE LANDLORD’S CONSENT TO ASSIGNMENT)

Business leases often prohibit a tenant from assigning the lease or subletting the premises without the landlord’s written consent. What happens, however, if the landlord behaves unreasonably in deciding whether to consent? To address this very concern, the careful tenant will often add language to the effect that “the landlord’s consent shall not be unreasonably withheld.” But what if the lease itself doesn’t include that language? That question has been confronted head on by one of Florida’s intermediate appellate courts. The following circumstances and decision in that case certainly shed light on the answer:

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Protecting COMMERCIAL Real Estate Commissions – THE Commercial Real Estate Sales Commission Lien Act

Until the passage of Florida Statutes § 475.700 - § 475.719 (the “Commercial Real Estate Sales Commission Lien Act”) a real estate broker could only perfect a lien for the recovery of a commission if (a) the lien was provided for specifically by contract or (b) the broker had already obtained a judgment determining entitlement to the lien in question. What that sometimes meant was that if a contract didn’t properly provide for it, a broker often had no means of tying up money arising out of the sale or otherwise holding up a sale to secure a commission. While that still remains a difficulty in the residential real estate setting, the Commercial Real Estate Sales Commission Lien Act (hereinafter the “Act”) has modified that rule with regard to commercial real estate deals.

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Firm News

Andrew M. Feldman was recently certified by the Florida Supreme Court as a Circuit and County Court Mediator. Click here to read Andrew's full biography.

Nancy C. Wear has teamed up with us as "Of Counsel." Nancy is Florida Bar Certified in Criminal Appeals and has significant trial and appellate court experience, being associated with over 100 published opinions to date. Click here to read Nancy's full biography.

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