REAL ESTATE: RESIDENTIAL LEASE: ADDENDUM PROVIDING FOR LIQUIDATED DAMAGES OR EARLY TERMINATION FEE, EXECUTED CONTEMPORANEOUSLY WITH LEASE, WAS ENFORCEABLE ALTHOUGH THE LEASE ITSELF DID NOT CONTAIN A PROVISION FOR LIQUIDATED DAMAGES OR AN EARLY TERMINATION FEE; APPEALS: CERTIFICATION OF GREAT PUBLIC IMPORTANCE FROM COUNTY COURT: CONTRACTS: RULES OF CONSTRUCTION: CONTEMPORANEOUS INSTRUMENT RULE: CONSECUTIVELY PAGINATING TWO DOCUMENTS INDICATES THAT ARE INTENDED TO BE CONSIDERED AS A SINGLE DOCUMENT  

Wilson v. Terwillinger, ___ So. 3d ___, 39 Fla. L. Weekly D1313 (Fla. 5th DCA June 20, 2014)

The Fifth District Court of Appeal, in answer to a certified question of great public importance from the Brevard County Court, held that a residential lease addendum providing for liquidated damages or an early termination fee, executed contemporaneously with the lease, was enforceable although the lease itself did not contain a provision for liquidated damages or an early termination fee.  Section 83.595, Florida Statutes, provides that a residential landlord may “[c]harge liquidated damages, as provided in the rental agreement.”  As a result, the county court thought that a liquidated damages provision must be located in the lease itself.  The appellate court disagreed based upon the contemporaneous instrument rule under which “documents executed by the same parties, at or near the same time, and concerning the same transaction or subject matter are generally construed together as a single contract.”  This conclusion was fortified by the fact that the lease and addendum were paginated consecutively, “thus lending further support to the conclusion that the parties intended the addendum to be a part of the lease.”