Florida Sales Tax Rules
12A-1.070 Leases and Licenses of Real Property; Storage of Boats and Aircraft
(1)(a) Every person who rents or leases any real property or who grants a license to use, occupy, or enter upon any real property is exercising a taxable privilege unless such real property is:
1. Assessed as agricultural property under Section 193.461, F.S.
2. Used exclusively as dwelling units.
3. Property subject to tax on parking, docking, or storage space under Section 212.03(6), F.S.
4. A public or private street or right-of-way occupied or used by a utility for utility purposes.
5. A public street or road which is used for transportation purposes.
a. Tolls imposed exclusively for the right to travel on turnpikes, expressways, bridges, and other public roadway are payments for the use of the public roadway and are thus exempt. Example: The toll charged by a city to the general public for the right to cross a bridge is a payment for transportation purposes; therefore, it is exempt.
b. However, a charge for the right to use a public or private roadway for non-transportation purposes is fully taxable. Example: A civic organization that is not exempt from sales tax contracts with a city to have certain streets and sidewalks blocked from traffic to conduct its annual festival. The privilege granted by the city to the civic organization for the use of the streets and sidewalks constitutes a license to use real property for non-transportation purposes. Therefore, any charge by the city to the civic organization for the use of streets and sidewalks is taxable.
6.a. Property used at an airport exclusively for the purpose of aircraft landing or aircraft taxiing or property used by an airline for the purpose of loading or unloading passengers or property onto or from aircraft or for fueling aircraft. See subsection (3).
b. Property which is used by an airline for loading or unloading passengers onto or from an aircraft is exempt. This property includes: common walkways inside a terminal building used by passengers for boarding or departing from an aircraft, ticket counters, baggage claim areas, ramp and apron areas, and departure lounges (the rooms which are used by passengers as a sitting or gathering area immediately before surrendering their tickets to board the aircraft). Departure lounges commonly known as VIP lounges, or airport clubs which are affiliated with an airline or a club which requires a membership or charge or for which membership or usage is determined by ticket status are not included as property exempt from tax. The lease or license to use passenger loading bridges (jetways) and baggage conveyor systems comes under this exemption, provided that the jetways and baggage conveyor systems are deemed real property.
(I) In order for the jetways and baggage conveyors to be deemed real property, the owner of these items must also be the owner of the land to which they are attached, and must have had the intention that such property become a permanent accession to the realty from the moment of installation. The items shall not be considered real property if the owner, when the owner is not the airport, retains title to the items after the purchase/installation indebtedness has been paid in full.
(II) Any operator of an airport, such as an airport authority, which is the lessee of the land on which the airport has its situs is, for the purpose of this sub-subparagraph, deemed the owner of such land.
c. Real property used by an airline for purposes of loading or unloading passengers or property onto or from an aircraft which is exempt from tax includes: office areas used to process tickets, baggage processing areas, operations areas used for the purpose of the operational control of an airline's aircraft, and air cargo areas.
(I) If any portion of the above property is used for any other purpose, it is taxed on a pro-rata basis, which shall be determined by the square footage of the portion of the areas in the airport that are used by an airline exclusively for the purpose of loading or unloading passengers or property onto or from aircraft (which areas shall be the numerator) compared to the total square footage of such areas used by the airline (which areas shall be the denominator).
(II) Example: An airline leases a total of 3,000 square feet from an airport authority. The airline uses the space as follows: 1,000 square feet are used to process tickets and check in the passengers' luggage; 1,000 square feet are used for the passengers' departure lounge; and 1,000 square feet are used for the management office and the employees' lounge. The 1,000 square feet used to process tickets and check in the passengers' luggage is exempt; the 1,000 square feet used as the passengers' departure lounge is also exempt; and the 1,000 square feet used as the management office and employees' lounge is taxable. Therefore, a total of 2,000 square feet is exempt because that portion of the total space leased by the airline is used exclusively for the purposes of loading or unloading passengers or property onto or from an aircraft. However, the total amount used as office space and the employees' lounge (i.e., 1,000 square feet) is taxable, because that portion of the space leased by the airline is not used exclusively for the purposes of loading or unloading passengers or property onto or from an aircraft.
d. Real property used for fueling aircraft is taxable when the fueling activities are conducted by a lessee or licensee which is not an airline. However, the charge made to an airline for the use of aprons, ramps or other areas used for fueling aircraft is exempt.
e. From July 1, 1990, through June 30, 1991, property used at an airport to operate advertising displays in any county as defined in Section 125.011(1), F.S., was exempt from tax.
7.a. Property used at a port authority exclusively for the purpose of oceangoing vessels or tugs docking, or such vessels mooring on property used by a port authority for the purpose of loading or unloading passengers or cargo onto or from such vessels, or property used at a port authority for fueling such vessels. See subsection (2).
b. The term "port authority" means any port authority created by or pursuant to the provisions of any general or special law or any district or board of county commissioners acting as a port authority under or pursuant to the provisions of any general or special law.
8. Effective July 1, 1987, property leased, subleased, or rented to a person providing food and drink concessionaire services within the premises of a movie theater, a business operated under a permit issued pursuant to Chapter 550, F.S., (dog and horse racing), or any publicly owned arena, sports stadium, convention hall, exhibition hall, auditorium, or recreational facility; however, licenses for such spaces have been taxable since July 1, 1986, and remain taxable.
9. Recreational property or other common elements of a condominium when subject to a lease between the developer or owner of the condominium complex and the condominium association in its own right or as the agent for the owners of individual condominium units or the owners of individual condominium units. This exemption applies only to the lease payments of such property and any other use of such property by either the owner, developer, or the association shall be fully subject to tax.
(b)1. A person providing retail concessionaire services involving the sale of food and drink or other tangible personal property within the premises of an airport shall be subject to tax on the rental of such real property.
2. However, effective July 1, 1987, a person providing retail concessionaire services involving the sale of food and drink or other tangible personal property within the premises of an airport shall not be subject to the tax on any license to use such property. For purposes of this subparagraph, the term "sale" shall not include the leasing of tangible personal property.
3. For purposes of this rule, the term "retail concessionaire," which may be either a lessee or licensee, shall mean any person who makes sales of food or drink directly to the general public within the premises of a movie theater, a business operated under a permit issued pursuant to Chapter 550, F.S., or any publicly owned arena, sports stadium, convention hall, exhibition hall, auditorium, or recreational facility, or who makes sales of food, drinks or other tangible personal property directly to the general public within the premises of an airport. With regard to airports, any persons which contract to service or supply tangible personal property for airline operations are considered to be providing aircraft support services and are not concessionaires for purposes of this rule.
(c) Effective July 1, 1987, real property used as an integral part of the performance of qualified production services shall not be subject to tax. The term "qualified production services" means any activity or service performed directly in connection with the production of a qualified motion picture. The term "qualified motion picture" means all or any part of a series of related images, either on film, tape, or other embodiment, including, but not limited to, all items comprising part of the original work and film-related products derived therefrom as well as duplicates and prints thereof and all sound recordings created to accompany a motion picture, which is produced, adapted, or altered for exploitation in, on, or through any medium or device and at any location, primarily for entertainment, commercial, industrial, or educational purposes and includes:
1. Photography, sound and recording, casting, location managing and scouting, shooting, creation of special and optical effects, animation, adaptation (language, media, electronic or otherwise), technological modifications, computer graphics, set and stage support (such as electricians, lighting designers and operators, greensmen, prop managers and assistants, and grips), wardrobe (design, preparation, and management), hair and make-up (design, production, and application), performing (such as acting, dancing, and playing), designing and executing stunts, coaching, consulting, writing, scoring, composing, choreographing, script supervising, directing, producing, transmitting dailies, dubbing, mixing, editing, cutting, looping, printing, processing, duplicating, storing, and distributing;
2. The design, planning, engineering, construction, alteration, repair, and maintenance of real or tangible personal property including stages, sets, props, models, paintings, and facilities principally required for the performance of those services listed in subparagraph 1.; and
3. Property management services directly related to property used in connection with the services described in subparagraphs 1. and 2.
4. A statement similar to the following should be presented to the lessor by the motion picture lessee at the time the parties execute the lease.
LESSEE/LICENSEE/TENANT
BLANKET LEASE EXEMPTION CERTIFICATE
This is to certify that all real property leased, licensed, or rented by (NAME OF LESSOR) on or after (DATE) to (NAME OF MOTION PICTURE LESSEE, LICENSEE, or TENANT) is or was leased, licensed, or rented to be used as an integral part of the performance of qualified production services, exempt from sales or use tax under the provisions of Section 212.031(1)(a)9., F.S.
This lease exemption certificate is to continue in force unless revoked by lessee in writing, addressed to the lessor named in this agreement.
LESSEE/LICENSEE/TENANT _______________________
ADDRESS ____________________________________
SALES TAX NUMBER (IF REGISTERED) ___________________
SIGNATURE OF LESSEE/LICENSEE/TENANT ____________________ DATE _______
PRINT NAME _________________________
5. When the property is used for any purpose other than the production of a qualified motion picture and the lease exemption certificate has been provided to the lessor, tax should be accrued and remitted to the Department of Revenue by the motion picture lessee, licensee, or tenant on the lease of the real property.
(d) The provisions of this rule relating to the license to use, occupy, or enter upon any real property are effective July 1, 1986, unless otherwise noted.
(e) "Real property" means the surface land, improvements thereto, and fixtures, and is synonymous with "realty" and "real estate."
(f) "License," with reference to the use of real property, means the granting of a privilege to use or occupy a building or parcel of real property for any purpose.
1. Example: An agreement whereby the owner of real property grants another person permission to install and operate a full service coin-operated vending machine, coin-operated amusement machine, coin-operated laundry machine, or any like items, on the premises is a license to use real property. The consideration paid by the machine owner to the real property owner for the license to use the real property is taxable. See Rule 12A-1.044, F.A.C., for the definitions of "amusement machine operator" and "vending machine operator."
2. Example: An agreement between the owner of real property and an advertising agency for the use of real property to display advertising matter is a license to use real property. The consideration paid by the advertising agency to the real property owner for the license to use the real property is taxable.
(2) The lease or rental of docking or storage spaces for boats at boat docks or marinas is taxable under Section 212.03(6), F.S.
(3) The lease or rental of tie-down or storage space for aircraft at airports is taxable under Section 212.03(6), F.S.
(4)(a) The tenant or person actually occupying, using, or entitled to use any real property from which rental or license fee is subject to taxation under Section 212.031, F.S., shall pay the tax to his immediate landlord or other person granting the right to such tenant or person to occupy or use such real property.
(b) The tax shall be paid at the rate of 5 percent prior to February 1, 1988, and 6 percent on or after February 1, 1988, on all considerations due and payable by the tenant or other person actually occupying, using, or entitled to use any real property to his landlord or other person for the privilege of use, occupancy, or the right to use or occupy any real property for any purpose.
(c) Ad valorem taxes paid by the tenant or other person actually occupying, using, or entitled to use any real property to the lessor or any other person on behalf of the lessor, including transactions between affiliated entities, are taxable.
(d) Common area maintenance charges paid by a tenant to the lessor for the privilege or right to use or occupy real property are taxable.
(e) Utility charges paid by a tenant to the lessor for the privilege or right to use or occupy real property are taxable, unless the lessor has paid the sales tax to the utility company on such utilities consumed by the tenant, and the utilities billed by the lessor to the tenant are separately stated on the lessor's invoice to the tenant at the same or lower price as that billed by the utility company to the lessor.
1. Example: Landlord owns a building with 5 offices and common areas. All offices are the same size. Landlord uses one office and leases the other four. The lease agreement provides that the utility charges are "additional rent" and failure to pay such utility charges when required will cause the lease to terminate. All offices use approximately the same amount of utilities. Utility services are sold by City Utilities to Landlord. City Utilities' service bill to Landlord is as follows:
|
Electrical energy |
$1000.00 |
|
|
Gas energy |
500.00 |
|
|
Gross Receipts Tax ($1500 × 2.5%) |
37.50 |
|
|
Subtotal – subject to sales tax |
1537.50 |
|
|
Sewage & garbage service |
100.00 |
|
|
Water service |
50.00 |
|
|
Florida sales tax |
92.25 |
|
|
Municipal utilities tax ($1500 × 10%) |
150.00 |
|
|
Total Amount Due |
$1929.75 |
Landlord charges each tenant $2,000 rent, which includes the tenant's use of the common areas, in addition to the tenant's pro rata share of utilities, including sales tax on utilities, gross receipts tax on utilities and municipal utility tax based on Landlord's cost. Of the above total charges that add up to $1,929.75, the charges for services of sewage, garbage, and water service are not utility service charges on which tax was paid by Landlord. Consequently, only the portion of each tenant's $385.95 share of the total charge billed by City Utilities ($1,929.75) which represents the tenant's share of non-taxable charges is taxable as rent. Therefore, the invoice to the tenant for the month should read:
|
Rent |
$2,000.00 |
|
|
Tenant's one-fifth share of charges for sewage, garbage, & water |
30.00 |
|
|
Total subject tax |
$2,030.00 |
|
|
Florida (6%) sales tax |
121.80 |
|
|
Reimbursement for one-fifth share of utilities on which tax was paid by Landlord |
355.95 |
|
|
Total Amount Due |
$2,507.75 |
2. Example: Same facts as above, except Landlord marks up the total of City Utilities' service bill by 10 percent, resulting in a total charged to the tenants for utilities of $2,122.73, instead of the $1,929.75 actually paid by Landlord for the utilities. Thus each tenant's one-fifth share of utilities would be $424.55, instead of $385.95. Again, if Landlord separately states the utility charges on the tenant's invoice, Landlord should compute the tax as follows:
|
Rent |
$2,000.00 |
|
|
Tenant's share of utilities not taxed (total utilities $424.55, less utilities on which Landlord paid tax, $355.95) |
68.60 |
|
|
Total subject to tax |
$2,068.60 |
|
|
Florida (6%) sales tax |
124.12 |
|
|
Reimbursement for one-fifth share of utilities on which tax was paid by lessor |
355.95 |
|
|
Total Amount Due |
$2,548.67 |
However, where a landlord marks up the utilities, in addition to the sales tax being due, gross receipts tax, at the rate of 2.5 percent, would also be due on the marked-up portion, pursuant to Section 203.01, F.S.
(f) The tax shall be due and payable at the time of the receipt of the rental or license fee payment by the lessor or other person who receives the rental or payment. The owner, lessor, or person receiving the rent or license fee shall remit the tax to the Department at the times and in the manner provided in Rule 12A-1.056, F.A.C.
(g)1. The amount charged by a lessor to a lessee to cancel or terminate a lease agreement is subject to tax if the lessor records such charge as rental income in its books and records. If such charge is not recorded as rental income by the lessor, then such charge is not considered a payment for the lease of the real property but as a payment to cancel or terminate the lease agreement.
2. Notwithstanding the provisions of subparagraph 1., above, if the amount paid by a lessee to a lessor to cancel or terminate a lease agreement is recorded as a rental expense in the lessee's books and records, then such payment is subject to tax. However, if the lessee does not record that payment as a rental expense, then such payment is not considered a payment for the lease of the real property but as a payment to cancel or terminate the agreement, and is not subject to tax. If the lessee records the payment as a rental expense but does not remit tax to the lessor on such payment, then the lessee is required to remit the tax on such charge directly to the Department of Revenue. The lessee is required to remit the tax on Form DR-15, Sales and Use Tax Return, if a registered dealer, or if unregistered, the lessee is required to remit the tax on Form DR-15MO, Out-of-State Purchase. Forms DR-15 and DR-15MO are incorporated by reference in Rule 12A-1.097, F.A.C.
3. Should the lessor or lessee record the payment as rental income or expense, respectively, but provide sufficient documentation, such as a lease or other tangible evidence, to establish that the payment is for other than the use of the real property, then such payment is not subject to tax.
4. Should the lessor or lessee record the payment as other than rental income or rental expense, respectively, but sufficient documentation exists, such as a lease or other tangible evidence, to establish that the payment was additional payment for the use of the real property, then such payment is subject to tax.
(5) Only one tax on the rental or license fee payable from the occupancy or use of any real property from which the rental or license fee is subject to taxation under Section 212.031, F.S., shall be collected, and the tax shall not be pyramided by a progression of transactions; however, the amount of tax due the State of Florida shall not be decreased by any such progression of transactions.
(6) Each place of business is required to be registered separately by the owner, landlord, agent, or other persons who collect or receive rents or license fees on behalf of owners or lessors. See Rule 12A-1.060, F.A.C.
(7)(a) Where a tenant or person occupying, using, or entitled to use any real property which is subject to tax sublets or assigns and collects rentals or license fees on a taxable portion of the leased or licensed premises, such tenant or other person shall be required to register as a dealer and collect and remit the tax on all such sub-rentals or assignments.
(b) Notwithstanding the provisions of paragraph (a), when space is subleased to a convention or industry trade show in a convention hall, exhibition hall, or auditorium, whether publicly or privately owned, the sponsor who holds the prime lease is subject to tax on the prime lease and the sublease shall be exempt.
(8) When a tenant (lessee) or other person occupying, using, or entitled to use any real property (licensee) sublets or assigns some portion of the leased or licensed property, he may take credit on a pro rata basis for the tax that he paid to his landlord or other such person on the space that he subleases or assigns. Proration shall be computed on square footage or some other basis acceptable to the Executive Director or the Executive Director's designee in the responsible program. For example, Tenant leases 200 square feet of floor space for $400 and pays Landlord $24 rental tax. Tenant subleases 100 square feet, or one half, of the space to Subtenant for $300 and collects $18 tax which he remits to the State, less a credit of $12 for tax that he paid to his landlord on the space that he subleased to Subtenant. (One half of $400 is $200 and 6 percent of this amount is $12.)
(9) If a tenant or other person sublets or assigns his interest in all of the leased or licensed premises, or retains only an incidental portion of the entire premises, then such tenant or other person may elect not to pay tax on the prime lease or license, provided that such tenant or other person shall register as a dealer and collect and remit tax due on the sub-rentals or assignments and pay the tax due on the portion of the rental charges or license fees pertaining to any taxable space which he retains. If the tenant or licensee elects not to pay the tax to his landlord, or other person granting the right to occupy or use such real property, he should extend to his landlord or such other person a resale certificate.
(10) When the owner of a business, or the operator of a business who is a lessee or licensee, provides floor space to any person, and in addition thereto and in connection therewith also provides certain services to such person such as display, delivery, wrapping, packaging, telephone, credit, collection, or accounting, the amount charged by the lessee or licensee to such person constitutes the lease or rental of or license to use or occupy real property, and where the charges for such services are not separately stated in the agreement and on the invoices or other billings, the total consideration paid under the agreement is taxable. Prior to July 1, 1987, and on or after January 1, 1988, where the charges for such services are separately stated in the agreement and on the invoices or other billings, only those charges for floor space are taxable. When the operator of a business is a lessee or licensee, he may take credit in accordance with the provisions of subsection (8) of this rule, for the tax paid on the floor space which he subleases or assigns.
(11) When the operator of a business, who may be the owner or prime lessee, provides space to an independent operator or licensee, the operator shall collect and remit tax on the total consideration paid by the independent operator or other person for the right of such person to occupy or use such space.
(12) When a tenant or other person pays insurance for his own protection, the premium is not regarded as rental or license fee consideration, even though the landlord or other person granting the right to occupy or use such real property is also protected by the coverage. However, any portion of the premium which secures the protection of the landlord or person granting the right to occupy or use such real property and which is separately stated or itemized is regarded as rental or license fee consideration and is taxable.
(13) When the rental or lease of an interest in real property or a license to use or occupy any real property includes areas which are used for free parking, the entire consideration paid by the lessee or licensee to the lessor or person receiving the rent or payment by a rental or license fee arrangement is taxable.
(14)(a) When a rental, lease, or license to use or occupy real property involves multiple use of such real property wherein a part of the real property is subject to tax, and a part of the property is excluded from the tax, the Executive Director or the Executive Director's designee in the responsible program shall determine from the lease or license and such other information as may be available, that portion of the total rental charge or license fee which is exempt from the tax. When, in the judgment of the Executive Director or the Executive Director's designee in the responsible program, the amount of rent or license fee stated in the lease or license arrangement for the taxable portion of the real property does not represent true value, the Executive Director or the Executive Director's designee in the responsible program shall make a determination of the proper amount of rent or license fee applicable thereto for the purpose of determining the amount of tax due from such other information as is available.
(b) As an example, the portion of the premises leased or rented by for profit entities, qualifying as homes for the aged, or licensed as a nursing home or hospice under Chapter 400, F.S., which is used as a dwelling unit is taxable on a pro-rata basis. The pro-rata portion shall be determined by the square footage of the portion of the dwelling that is normally accessed and used by the residents compared to the total square footage of the nursing home premises.
1. The areas which are normally accessed and used by the nursing facility residents are exempt. These include:
a. Front lobby,
b. Receptionist's office,
c. Bookkeeper's office (operates as a bank for the residents),
d. Residents' rooms,
e. Hallways,
f. Public restrooms,
g. Social Service's office,
h. Residents' conference room/Party room,
i. Therapy rooms,
j. Dining rooms,
k. Activity rooms/Day rooms,
l. Treatment rooms,
m. Chapel,
n. Central bath/Whirlpool,
o. Residents' pantry/small kitchen area (usually have microwaves and cabinets for residents' use),
p. Grounds which are improved and developed for the residents' use, including lawns, trails, sidewalks, patios, picnic areas,
q. Driveways and parking areas.
2. The areas which are not normally accessed and used by the facility's residents are taxable. These include:
a. Kitchen,
b. Laundry room,
c. Employees' lounge,
d. Hallways connecting non-accessible rooms,
e. Linen closets,
f. Oxygen storage closets,
g. Nurses' stations,
h. Director of Nursing's office,
i. Administrator's office,
j. Director of Admission's office,
k. Housekeeping office,
l. Electrical room,
m. Pharmaceutical storage rooms,
n. Storage rooms for facility's supplies,
o. Sterilization rooms,
p. Medical records office,
q. Janitor's closet,
r. Outside storage of facility's equipment,
s. Areas used for commercial purposes (e.g., beauty shops),
t. Unimproved grounds.
(15) The charge made to its customer by a railroad for the use of a side track located on railroad property is taxable.
(16) Any person who has leased, occupied, or used or was entitled to use any real property and cannot prove that the tax has been paid to his lessor or other person shall be directly liable to the State for any tax, interest, or penalty due on any such taxable transaction.
(17)(a) Prior to July 1, 1987, when a lessee or licensee was required under the terms of his lease or license fee arrangement to make payments to a merchants' association or to the lessor or other person receiving the rent or payment, by the rental or license fee arrangement, to be transmitted without deduction therefrom to a merchants' association, such payments were not rent and were exempt. "Merchants' association" means a corporation not for profit organized and existing for the sole and exclusive purpose of promoting the businesses of a group of merchants.
(b) Effective July 1, 1987, such payments to a merchants' association by a lessee or licensee shall be taxable if the payments are a part of the consideration for the right to use or occupy the real property. If the payments are not part of the consideration for the right to use or occupy the real property, such payments are not taxable.
(18) The lease or rental of land or a hall or other facilities by a fair association subject to the provisions of Chapter 616, F.S., to a show promoter or prime operator of a carnival or midway attraction is exempt. However, the sublease of land or a hall or other facilities by the show promoter or prime operator of a carnival or midway attraction is taxable.
(19)(a) The lease or rental of real property or a license fee arrangement to use or occupy real property between related "persons," as defined in Section 212.02(12), F.S., in the capacity of lessor/lessee, is subject to tax.
(b) The total consideration, whether direct or indirect, payments or credits, or other consideration in kind, furnished by the lessee to the lessor is subject to tax despite any relationship between the lessor and the lessee.
(c) The total consideration furnished by the lessee to a related lessor for the occupation of real property or the use or entitlement to the use of real property owned by the related lessor is subject to tax, even though the amount of the consideration is equal to the amount of the consideration legally necessary to amortize a debt owned by the related lessor and secured by the real property occupied, or used, and even though the consideration is ultimately used to pay that debt.
(20) Where two taxpayers, in connection with the interchange of facilities, rent or lease property, each to the other, for use in providing or furnishing any of the services mentioned in Section 166.231, F.S., (electricity, natural or manufactured gas, water service, and telecommunication service), the term "lease or rental" means only the net amount of rental involved.
(21) The rental of a restaurant or hotel dining room is taxable.
(22)(a) When tangible personal property is left upon another's premises under a contract of bailment, the bailee is not exercising a privilege taxable under the provisions of Section 212.031, F.S., relating to leases, licenses, or rentals of real property.
(b) A bailment is a contractual agreement, oral or written, whereby a person (the bailor) delivers tangible personal property to another (the bailee) and the bailor for the duration of the relationship relinquishes his exclusive possession, control, and dominion over the property, so that the bailee can exclude, within the limits of the agreement, the possession of the property to all others. If there is no such delivery and relinquishment of exclusive possession, and the owner's control and dominion over the property is not dependent upon the cooperation of the person on whose premises the property is left, and his access thereto is in no wise subject to the latter's control, it will generally be held that such person is a tenant, lessee, or licensee of the space upon the premises where the property is left.
1. Example: A safety-deposit box in a bank or vault is a bailment, not a lease or license, because the bank has one key and the customer another and both are necessary to gain access to the box.
2. Example: An airport locker is not a bailment, but a lease or license, because the renter has the key and sole access to the stored property.
3. Example: The charge made for use of a frozen food locker in cold storage or locker plants is exempt under conditions which require the facility owner's presence and assent for the food owner to access his property.
(c) A person who merely grants storage space without assuming, expressly or implied, any duty or responsibility with respect to the care and control of the property stored is a landlord of a person granted a right to occupy or use such real property and is not a bailee. Thus, the person granting the right to use such storage space is exercising a privilege taxable under the provisions of Section212.031, F.S., as a lease or license.
(d) A lease, license, or bailment is indicative of a contractual relationship, and the terms are not mutually exclusive. Whatever label is attached to a contract, in determining whether a transaction is a bailment or a lease or a license, consideration will be given to the manifested intention of the parties as to which relationship has been created.
(e) In the absence of an express contract, the creation of a bailment requires that possession and control pass from the bailor to the bailee; there must be full transfer, actual or constructive, so as to exclude the property from the possession of the owner and all other persons and give the bailee sole custody and control for the time being.
Rulemaking Authority 212.17(6), 212.18(2), 213.06(1) FS. Law Implemented 212.02(10)(h), (i), (13), 212.03(6), 212.031 FS. History–Revised 10-7-68, Amended 2-8-69, 10-7-69, Revised 6-16-72, Amended 9-26-77, 10-18-78, 12-31-81, 7-20-82, Formerly 12A-1.70, Amended 1-2-89, 3-27-95, 7-17-95.
