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Constructing improvements without a required permit materially breaches a contract

Fri 19th Jan, 2024 Industry News

It is fundamental that “in order to maintain an action for breach of contract, a claimant must first establish performance on its part of the contractual obligations imposed in the contract.”  Marshall Const., Ltd. v. Coastal Sheet Metal & Roofing, Inc., 569 So. 2d 845, 848 (Fla, 1st DCA 1990).  When those obligations include performing the construction of improvements requiring a permit, failing to obtain the required permit is a material breach of the agreement.  This was the holding in Braverman v. Van Bower, Inc., 583 So. 2d 381 (Fla. 3d DCA 1991), where a contractor’s trial victory on its construction lien claim was reversed by the Third District on appeal because it found that the contractor materially breached its contract where it failed to secure a permit for the work and built the work after the permit had been denied.

A related point that is well-established under Florida law in the commercial lease context is that a landlord materially breaches a lease by failing to comply with applicable codes.  Beacon Property Management, Inc. v. PNR, Inc., 785 So. 2d 564 (Fla. 4th DCA 2001), noted that a landlord’s failure to make repairs and allowing the premises to deteriorate to the point there were code violations to clearly be a substantial breach of the lease.  In Victoriana Building, LLC v. Ft. Lauderdale Surgical Center, LLC, 166 So. 3d 861, 862 (Fla. 4th DCA 2015), the Fourth District upheld the trial court’s determination that the landlord first breached the lease, discharging the tenant’s duties of performance, by failing to provide code compliant means of egress.   

If your contract requires a party to construct improvements, it is important that the required permits are obtained or there could be legal consequences.  For more information on our contract review services, please contact us today.

Disclaimer: The information contained in this article is for general educational information only.  This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.


By April A Rocke