Marquez-Gonzalez v. Perera , 1996 Fla. App. LEXIS 3841 ( 1996 )

673 So.2d 502 (1996)

Maria MARQUEZ-GONZALEZ, Appellant,
v.
Emilio PERERA, Appellee.

No. 95-2436.

District Court of Appeal of Florida, Third District.

April 17, 1996. Rehearing Denied June 5, 1996.

Pedro A. Cofino, Miami Beach, for appellant.

Harvey D. Rogers, Miami, for appellee.

Before JORGENSON, COPE and GERSTEN, JJ.

PER CURIAM.

Maria Marquez-Gonzalez appeals an adverse final judgment after bench trial. We reverse.

Plaintiff/appellant Marquez-Gonzalez leased commercial space from defendant/appellee Emilio Perera for use as a small supermarket and restaurant. The premises were dilapidated. She agreed to lease the property "as is" and undertake necessary refurbishing.

After entry into the lease, tenant learned that a portion of the business premises consisted of an illegal structure which had been built without the required permits. The landlord did not rectify the illegal permit situation, and the tenant ultimately sued for rescission of the lease. After bench trial, the court entered judgment for the landlord on the theory that the tenant had leased the premises "as is." The tenant has appealed.

In our view, rescission of the lease should have been granted. The tenant had inspected the premises and agreed to take them "as is." The tenant's testimony, however, is undisputed that there had been no disclosure that a portion of the business premises had been built without permits and consequently was illegal. There is no way that the tenant could have discovered this fact by visual inspection of the premises, and nothing placed her on any inquiry notice that a portion of the structure had been built without permits. The illegal structure problem was a matter which the landlord was obliged to correct, not the tenant. Under the circumstances, the tenant was entitled to rescind the lease. See 49 Am.Jur.2d Landlord and Tenant §§ 843, 869-70 (1995).

Accordingly, the final judgment is reversed and the cause remanded with directions to enter a judgment in favor of the tenant on the claim for rescission of the lease, and such other relief as the trial court may deem proper.

Reversed and remanded.