## Facts

- Louis G. Selk sold a 320-acre tract with a dwelling to David Properties, Inc. for $50,000, taking a $45,000 purchase-money mortgage payable in five annual $9,000 installments.
- Selk continued living in the dwelling after the sale.
- The parties executed a written lease allowing Selk to remain until December 31, 1959, for $1.00 rent.
- Selk remained in possession after the lease expired and stayed until November 27, 1961.
- David Properties sent written demands (February 1960 and February 1961) requiring Selk to vacate or pay $300 per month for continued occupancy; Selk received the notices, did not respond, and continued occupying the property.
- After the final mortgage installment became overdue, Selk filed an equity action to foreclose the purchase-money mortgage.
- David Properties counterclaimed for holdover rent at $300 per month and sought to set off the claimed rent against the mortgage debt.
- The chancellor dismissed the rent counterclaim, finding the dwelling had no rental value and that David Properties suffered no loss, and awarded Selk attorney’s fees.
- David Properties appealed the dismissal of the counterclaim and the attorney’s fee award.

## Issues

1. Whether a tenant who holds over after a fixed-term lease, after receiving notice that continued occupancy will require payment of a stated increased rent, becomes liable for that rent by remaining in possession without objection.
2. Whether Florida’s “double rent” statute limits or bars recovery of the demanded holdover rent when the demanded amount exceeds double the prior rent.
3. Whether the evidence supported the amount of attorney’s fees awarded in the foreclosure action.

## Decision

- The appellate court reversed the dismissal of David Properties’ counterclaim for holdover rent and remanded for further proceedings consistent with its ruling, including allowing a setoff against the mortgage indebtedness.
- The court held Selk was liable for $300 per month because his continued possession after explicit notice, without protest, constituted implied assent to the new rental terms.
- The court rejected the argument that the double-rent statute barred recovery, treating the obligation as contractual (implied-in-fact) rather than a statutory penalty.
- The court modified the attorney’s fee disposition, concluding the record did not adequately support the fee amount awarded.

## Legal Principles

- When a landlord notifies a fixed-term tenant that holding over will require payment of a specified increased rent, the tenant who holds over without expressing nonassent is liable for the specified rent under an implied-in-fact agreement.
- Once implied assent to the stated rent is established by conduct (continued occupancy after notice without objection), the landlord need not prove market rental value or actual loss as a predicate to recovery.
- A statutory double-rent remedy for refusal to surrender possession does not necessarily preclude contractual recovery where the facts support an implied agreement to new rental terms.
- Equitable sympathy for a party’s age or circumstances does not negate contractual obligations absent proof of legal incapacity at the time assent is implied.
- Attorney’s fees in foreclosure must be supported by sufficient record evidence as to entitlement and amount.

## Conclusion

The court held that a tenant who remains in possession after lease expiration and clear notice of a higher rent, without objection, impliedly agrees to pay the increased rent, and it permitted the landlord-mortgagor to set off that rent against the mortgage debt while modifying an unsupported attorney’s fee award.


David Properties, Inc. v. Selk, 151 So. 2d 334 (Fla. Dist. Ct. App. 1st Dist. 1963)