Sued on a Personal Guarantee in Florida? Your Options and Defenses
A Tampa restaurant owner signs a five-year lease for a space on Howard Avenue. The landlord wants security, so the owner signs a personal guarantee on the last page without reading it closely. Two years later the restaurant closes. The owner walks away assuming the business absorbed the loss. Then the landlord’s lawyer sends a demand for the remaining three years of rent, $214,000, addressed not to the company but to the owner personally.
This is the moment most people first understand what they signed. The company is gone. The guarantee is not. A personal guarantee is a separate promise, and when you are sued on a personal guarantee in Florida, the lawsuit reaches your house, your savings, and your personal accounts no matter what happened to the business.
How much trouble that creates depends on three things: what the document actually says, what the creditor can prove, and which defenses survive the fine print.
Southron Firm, P.A. is a Tampa, Florida litigation firm that handles guaranty disputes from both sides: owners defending personal exposure and creditors enforcing the obligations they were promised. What follows applies to both.
What a Personal Guarantee Actually Obligates You to Do
A personal guarantee makes you individually responsible for someone else’s debt, usually your own company’s. If the business does not pay, the creditor can sue you directly and collect from your personal assets. The corporate shield that protects you from the company’s other liabilities does nothing here, because you signed a separate contract promising to pay.
Personal guaranty:A written contract in which an individual promises to satisfy the debt or obligation of another party, typically their own business, if that party defaults, making the individual personally liable to the creditor for the amount owed.
Florida requires this promise to be in writing. Under Fla. Stat. § 725.01, the statute of frauds, no action can be brought to charge a person on a special promise to answer for the debt or default of another unless the agreement, or a written memorandum of it, is signed by the party to be charged. An oral promise to back a company’s debt is not an enforceable personal guarantee in Florida. That single requirement defeats a meaningful share of guaranty claims at the threshold.
The reach of the guarantee, though, comes from its own language, not from the statute. A guaranty can be narrow or sweeping, and most are drafted to be sweeping. Reading the document is the first task in any guaranty dispute, whether you are enforcing one or defending against it.
Continuing vs. Limited Guaranty: The Distinction That Decides the Case
The scope of your exposure turns on whether you signed a continuing guaranty or a limited one. A continuing guaranty covers all present and future obligations of the business until you formally revoke it in writing. A limited guaranty covers only a specific debt or a capped amount. The difference often decides how much you owe.
| Term in the document | What it means for the guarantor | Why it matters |
|---|---|---|
| Continuing guaranty | Covers all current and future debts of the business, including obligations incurred after you signed | Exposure grows over time and survives until written revocation; a one-time favor can become years of liability |
| Limited guaranty | Covers only a named debt or a fixed dollar cap | Liability is bounded; amounts above the cap or outside the named obligation are not your problem |
| Unconditional / absolute guaranty | Creditor can sue you without first pursuing the business or collateral | You can be the first and only target, even if the company has assets |
| Conditional guaranty | Creditor must first exhaust remedies against the business before reaching you | Adds a procedural hurdle the creditor must clear before you owe anything |
Most commercial guaranties are written as continuing, unconditional, and absolute. That combination lets a landlord or lender skip the company entirely and sue the individual first, for everything, including obligations that accrued long after the guarantee was signed. A guarantor who believes they backed a single equipment lease can discover they also backed three later credit lines.
Reviewing exactly which obligations a guaranty captures is where a Florida breach of contract attorney can find room that the demand letter assumed away.
How a Creditor Enforces a Personal Guarantee in Florida
To enforce a personal guarantee in Florida, the creditor must prove four things: the existence of a valid written guaranty, the underlying debt, the principal’s default, and the amount due. Establish those, and the burden shifts to the guarantor to raise a defense. This is the enforcement checklist, and it works the same whether you are the landlord building a case or the guarantor probing it for weakness.
- A valid, signed written guaranty. The creditor must produce the executed document that satisfies Fla. Stat. § 725.01. A missing original, an unsigned copy, or a guaranty signed only in a corporate capacity can sink the claim before the merits.
- The underlying obligation. The creditor must establish the debt the guaranty secured (the lease, the promissory note, the credit agreement) and that it is genuinely owed by the business.
- Default by the principal. The creditor must show the business failed to perform: missed rent, an unpaid note, a breached supply contract. The guaranty is triggered only by the principal’s default.
- The amount due. The creditor must prove the sum with admissible evidence such as a payment ledger, a rent statement, or a payoff calculation, not an unsupported number in a demand letter.
Two features make guaranty enforcement attractive to creditors in Florida. Most guaranties contain a prevailing-party attorney’s fee clause, and under Fla. Stat. § 57.105(7), a one-sided fee provision is read reciprocally, so fees follow the winner either way. Written guaranties also carry a five-year statute of limitations under Fla. Stat. § 95.11(2)(b), giving creditors a long runway to file.
If you are a creditor weighing enforcement, a Tampa commercial litigation attorney can confirm the four elements are documented before you spend money on a suit.
Defenses to a Personal Guaranty That Actually Work in Florida
The defenses that win are the ones grounded in the document, the underlying debt, or the creditor’s own conduct, not the argument that paying would be unfair. Florida courts enforce guaranties as written, so a viable defense has to attack formation, scope, discharge, or the numbers. The defenses below are the ones that carry weight.
- No writing, or a defective signature. If there is no written guaranty signed by you, § 725.01 bars the claim. If you signed only as “John Smith, Manager” for the company and never in your individual capacity, there may be no personal obligation at all.
- Material modification of the underlying debt. A guarantor is discharged when the creditor and the business materially alter the deal (extending the term, increasing the loan, changing the rate) without the guarantor’s consent. The change must be material, and unconsented, but when it happens it can release the guarantor entirely on a limited guaranty.
- Revocation of a continuing guaranty. A continuing guaranty can usually be revoked in writing as to future obligations. Debts the business incurs after a proper revocation are no longer guaranteed, though obligations already outstanding remain covered.
- Fraud or misrepresentation in the inducement. If the creditor lied about a material fact to obtain the signature, the guaranty may be voidable.
- The statute of limitations has run. Suit on a written guaranty must be filed within five years of the default under § 95.11(2)(b). A claim filed after the window has closed is barred.
- The amount is wrong. Even a fully enforceable guaranty does not entitle the creditor to an inflated number. Failure to mitigate, such as a commercial landlord who never tried to re-let the space, can reduce the recoverable amount.
One defense category usually fails: arguments that survive a waiver-of-defenses clause. Most commercial guaranties waive “suretyship” defenses: notice of default, the requirement that the creditor pursue collateral first, even discharge by modification. Florida courts generally enforce these waivers. That is why the durable defenses attack formation (no writing, wrong signatory), fraud in the inducement, the limitations period, and the dollar amount, grounds a waiver clause cannot reach.
An experienced Southron Firm commercial litigation attorney can read your specific guaranty and tell you which defenses survived the language you signed and which the clause waived away.
Personal Guarantees on Commercial Leases: A Special Case
A personal guarantee on a commercial lease exposes the guarantor to the full unpaid balance of the lease, often years of future rent, not only the months already missed. When a business tenant defaults and vacates, the landlord typically sues the guarantor for the accelerated remaining rent, reduced by what the landlord recovers in re-letting. This is the most common personal guarantee lawsuit Florida business owners face.
Two points decide most commercial-lease guaranty disputes. First, Florida landlords have a duty to mitigate damages by making reasonable efforts to re-let the premises; a landlord who lets the space sit empty and sues for the full term may not recover the full number. Second, many lease guaranties are “good guy” or limited guaranties that cap exposure if the tenant surrenders the space properly and on notice. Whether that cap applies turns on the exact language and on what the tenant actually did when leaving.
If a landlord is pursuing you for the balance of a lease, the scope of the guaranty and the landlord’s mitigation efforts are the first things to examine. A Florida real estate litigation attorney can assess both before the answer is due.
What to Do If You’ve Been Sued on a Personal Guarantee
If you have been served with a complaint or demand on a personal guarantee, the response window is short and several defenses are lost if the deadline passes. The steps below matter immediately, before you call the creditor and before you assume the number is correct.
- Find the guaranty and read every word. Locate the signed document. Identify whether it is continuing or limited, conditional or unconditional, and what obligations it actually covers. The scope of the guaranty drives everything that follows.
- Check how you signed. A signature in your individual name supports personal liability; a signature solely in a corporate capacity may not. Compare the signature block on the guaranty to the one on the underlying contract.
- Reconstruct the timeline. Note the date of default and count five years forward under § 95.11(2)(b). Identify any changes the creditor made to the underlying debt without your consent.
- Demand proof of the amount. Do not accept the demand-letter figure. The creditor must prove the sum, and a commercial landlord must account for mitigation through re-letting.
- Do not miss the response deadline. Defenses like improper service, the statute of limitations, and challenges to the amount must be raised in a timely answer or motion. Missing the deadline can result in a default judgment against you personally.
If you have received a demand letter or been served on a personal guarantee, contact Southron Firm, P.A. to have a Tampa commercial litigation attorney review the document and identify which defenses are available before the response deadline passes.
Frequently Asked Questions
Q: Can I be sued personally on a guarantee even if my company files for bankruptcy?
Yes. A personal guarantee is a separate contract between you and the creditor, so the company’s bankruptcy does not discharge it. In fact, creditors often pursue the guarantor precisely because the business cannot pay. If you are sued on a personal guarantee in Florida after your company fails, the guaranty stands on its own and reaches your personal assets.
Q: Does a personal guarantee have to be in writing in Florida?
Yes. Under Fla. Stat. § 725.01, Florida’s statute of frauds, a promise to answer for the debt of another is unenforceable unless it is in writing and signed by the person being charged. An oral promise to back a company’s debt is not an enforceable personal guarantee in Florida, which is one of the first things to check when a guaranty claim arrives.
Q: What are the strongest defenses to a personal guaranty in Florida?
The defenses that survive a typical waiver-of-defenses clause attack formation and the numbers: no signed writing, a signature made only in a corporate capacity, fraud in the inducement, an expired five-year statute of limitations, and an incorrect amount. Discharge by material, unconsented modification of the underlying debt can also work on a limited guaranty, though many commercial guaranties waive that defense.
Q: How long does a creditor have to sue me on a personal guaranty in Florida?
Five years. A written personal guaranty is a written contract under Fla. Stat. § 95.11(2)(b), so the creditor must sue within five years of the default that triggered the guaranty. A suit filed after that window is barred by the statute of limitations, but the clock generally runs from the breach, not from the date you learned of it.
Q: Can I get out of a personal guarantee on a commercial lease?
Sometimes. If your guaranty is a “good guy” or limited guaranty, surrendering the space properly and on notice may cap or end your exposure. Even with a full guaranty, a Florida landlord must mitigate damages by trying to re-let the space, which can reduce what you owe. Whether you can get out depends on the exact language of the guaranty and what you did when the tenant left.
Q: What does an “unconditional” or “continuing” guaranty mean?
An unconditional (or absolute) guaranty lets the creditor sue you directly without first pursuing the business or its collateral. A continuing guaranty covers both the original debt and future obligations of the business until you revoke it in writing. Most commercial guaranties are both, which is why exposure is often far broader than guarantors expect.
Q: Does a waiver-of-defenses clause really eliminate all my defenses?
No. Florida courts generally enforce waiver-of-defenses clauses as to suretyship defenses like notice and discharge by modification, but a waiver cannot manufacture a guaranty that was never validly signed, cannot revive an expired claim, and cannot prove an inflated amount. Formation defenses, the statute of limitations, and challenges to the amount survive most waiver clauses.
Q: What does a creditor have to prove to enforce a personal guarantee in Florida?
Four elements: a valid written guaranty signed by the guarantor, the underlying debt, the principal’s default, and the amount due. Once the creditor proves those, the guarantor must raise an affirmative defense. The same checklist that lets a creditor enforce a personal guarantee in Florida tells a guarantor exactly where to look for a weakness in the claim.
Key Takeaways
- A personal guarantee is a separate contract; being sued on a personal guarantee in Florida reaches your personal assets regardless of what happened to the business.
- Under Fla. Stat. § 725.01, a personal guaranty must be in writing and signed to be enforceable in Florida.
- Whether your guaranty is continuing or limited, conditional or unconditional, often decides how much you owe, so read those terms first.
- To enforce a personal guarantee in Florida, a creditor must prove a valid written guaranty, the underlying debt, the principal’s default, and the amount due.
- The defenses that actually work attack formation, the limitations period, fraud, and the amount, grounds a waiver-of-defenses clause cannot reach.
- A written guaranty carries a five-year statute of limitations under Fla. Stat. § 95.11(2)(b), and commercial landlords must mitigate damages before collecting the full balance.
- If you have been served, the response deadline is short and several defenses are waived if it passes.
Sued on a Personal Guarantee in Florida?
Our Tampa commercial litigation attorneys will review the guaranty, assess the exposure on both sides, and build a strategy before the critical early deadlines close.
Legal Disclaimer: This article is provided for informational purposes only and does not constitute legal advice. The information contained herein is based on Florida law as of the publication date and may not reflect recent changes. Laws vary by jurisdiction and circumstance, and no single article can address every situation. Do not rely on this article as a substitute for professional legal counsel. If you face a legal matter related to the topics discussed, contact an attorney licensed in Florida to review your specific facts and circumstances. Southron Firm, P.A., is a Florida law firm based in Tampa. For a consultation regarding your litigation matter, contact our office.