VOLUME 2 - ISSUE 3 LEGAL UPDATE

- Preparing The Three Day Notice
- Terminating the Lease Due to Damage
- Attorney’s Fees and the Landlord/Tenant Relationship

 

 

Preparing The Three Day Notice

In our January issue of the Legal News, we examined the legal and practical aspects of Serving the Three Day Notice. Here we will take an in-depth look at how to properly prepare a Three Day Notice to potentially collect the rent owed, and if that is not successful, make certain that we have a successful eviction action. The majority of Three Day Notices are prepared improperly or incorrectly by the residential property manager. While seemingly simple and straightforward, there are many pitfalls along the way which can result in a notice being technically defective. Most if not all of the mistakes made in the preparation of the Three Day Notice are completely avoidable and unnecessary, but it takes some knowledge of the Three Day Notice and a respect for the legal importance in doing it right.

WHY IS A THREE DAY NOTICE NECESSARY?

Florida law states that a landlord must serve a Three Day Notice when a tenant is late with the rent, giving that tenant three business days to pay the rent or vacate. Many landlords have trouble accepting that a tenant has the right to be given this notice when the tenant is delinquent, often each month. Why can’t the landlord just evict the tenant if the tenant fails to pay on time? The landlord can, but only after allowing the tenant a legal “grace period” of three business days after the date that the rent is due, according to the terms of the lease agreement. No matter how many times the tenant has been late, the landlord cannot attempt to terminate the tenancy if a valid lease is in place without first serving the Three Day Notice, waiting for payment, and then not receiving the payment within the three business day time period as the notice allows.

SUPPOSE A THREE DAY NOTICE IS PREPARED INCORRECTLY?

If the Three Day Notice is prepared incorrectly, and the landlord files the eviction based upon the incorrect notice, there is a high probability that the eviction will be successful if the judge fails to look carefully at the notice, the tenant fails to bring this up to the judge if the tenant files an answer with the court, or the tenant fails to hire an attorney who will most certainly bring this up to the court. Why take any chances? More and more tenants are hiring attorneys, and many attorneys are targeting tenants as potential clients and actually soliciting their business. A proper Three Day Notice is what is called a “jurisdictional requirement”, which means that the court does not have the jurisdiction or “power” to grant the landlord a Final Judgment of Eviction if particular aspects of the Three Day Notice are incorrect. A properly prepared notice is a prerequisite to the filing of the eviction action. If the notice is prepared incorrectly, many courts, if it is brought to their attention, will dismiss the eviction action, causing the case to be considered dead and requiring the landlord to start over again from scratch. Worse yet, if the tenant hires an attorney, there is a high chance that the landlord will be required to pay the tenant’s attorney’s fees and costs. These amounts could easily exceed $1000.00 and often do. The key is to simply prepare the notice correctly.

THE MECHANICS OF THE NOTICE

FORM – The suggested form of the Three Day Notice is found in Florida Statutes, and a proper form can be downloaded by going to the following link Downloadable Forms and Notices. Many landlords get notices out of “do it yourself landlord” books, which are general notices that do not substantially comply with the requirements of Florida Law. There are a number of computer programs that also provide Three Day Notice that are not in compliance. Some are called “Notice to Vacate”, “Notice to Quit”, “Notice to Pay and Vacate”, “Eviction Pending Warning” or some other variation. These notices should never be used. The first step is to be using the proper form of the Three Day Notice, and avoid writing any extraneous notes or messages anywhere on the notice.

ADDRESSING THE NOTICE-- The Three Day Notice should be addressed to all adult residents who are lease signers and any other adult occupants from whom you may have accepted rent. Full names should be used, and these names need to carefully match the spelling and form as the names appear on the lease agreement. If the spelling on the lease is incorrect or incomplete, make sure the Three Day Notice names reflect both the correct spelling and the spelling as it appears on the lease. For example, if the lease says John Smith and you are aware that the correct spelling is John Smythe, on the notice you would write John Smith a/k/a John Smythe. You should never give a judge a reason to question your notice. Too much information here is better than too little. Saying Mr. and Mrs. is also incorrect and unnecessary. The address listed on the notice must be the exact address where the tenant resides. If the unit is the “left” side or the “upstairs” unit, this must be clear on the notice. Many apartment communities have internal codes that the computer prints out, and these should not appear in the address. If the address is Apartment 105 in Building 3, this needs to be spelled out. Simply saying 3-105 just might cause confusion and should not be done. Additionally, the exact street address of the unit must be in the address section, even if the apartment community or condo has one address, one street and only the unit or building numbers are different.

DATING THE NOTICE-- If you are hand delivering or posting the Three Day Notice on the premises, the notice needs to be dated on the date that it is served, and the expiration date of the notice must be no less than 3 business days in the future, not including Saturdays, Sundays or legal holidays. A notice can be served on a Friday, Saturday or Sunday and would still expire on the following Wednesday, as you never count the day of service of the notice, and assuming that Monday, Tuesday or Wednesday are not legal holidays. Always be sure that you know what the holidays are, as this is a huge source of incorrect notices. We strongly recommend against mailing a Three Day Notice, as there are dating and expiration considerations which can result in the notice being far longer than three business days. If you are going to mail a notice, please call your attorney first, as there are other technical requirements.

WHAT CAN YOU DEMAND ON THE THREE DAY NOTICE? -- RENT ONLY!! We cannot stress this more. The law only allows you to put rent on a Three day Notice and absolutely nothing else. What is rent? Rent is defined in Florida law FS 83.43(6) as “the periodic payments due the landlord from the tenant for occupancy under a rental agreement and any other payments due the landlord from the tenant as may be designated as rent in a written rental agreement”. This means rent is the usual monthly base rental payment, periodic items such as a washer and dryer fee if defined as additional rent, and other items which your lease deems to be additional rent, such as late charges, bad check charges, utility charges and any other charged deemed as “additional rent” in the lease. A word of warning here is necessary though; even if your lease defines these items as “additional rent”, a minority of judges still will not permit you to put anything other than the normal monthly recurring rent on the Three Day Notice. You always need to confirm with your attorney to see if a particular judge is doing this. We recommend that if you are putting late charges on your notice, and the lease properly defines late charges as “additional rent”, you write the amount out as follows: “November rent of $650.00 plus $25.00 late charge as additional rent, TOTAL $675.00”. Your lease may have per diem or daily late charges that accrue as the rent becomes more delinquent. We strongly urge that you NEVER say “plus $5.00 per day” on your notice, as it causes the notice to be confusing and ambiguous. The tenant should be able to look at the notice and know exactly what is owed without having to do any math. If you feel the absolute need to try to demand anything else other than rent on a Three Day Notice, or have excessive accumulated late charges that you are trying to collect, you can go ahead and serve anything you want but it is risky. Just remember that is you intend to follow through with an eviction, you will have to serve a new Three Day Notice before any ethical and self respecting attorney will use your notice to file an eviction action.

WHERE DOES THE TENANT PAY THE RENT? -- Some landlords like to have a post office address where the rent is to be paid. We strongly recommend against this, since if you allow a tenant to pay by mail, the tenant has five additional days to pay, mail gets lost, and all kinds of problems arise. You should have the tenant pay at the office, and if you have a drop box or mail slot, be aware that many cases have been lost due to tenants claiming that they have dropped the mail after hours and then blame you for the missing money.

FILLING OUT THE CERTIFICATE OF SERVICE-- Once you have prepared the notice carefully and used the Three Day Notice Checklist, you have thoroughly understood how to serve the notice, and you have properly served the Three Day Notice, it is crucial that you fill out the Certificate of Service at the bottom of the notice stating how you served the notice, and if personally served, to whom the notice was served. The date on the Certificate of Service must correspond to the date at the top of the notice and should not be confused with the expiration date on the Three Day Notice that is within the body of the notice.

CAN YOU REFUSE CASH OR PERSONAL CHECKS?-- We urge all our clients to never accept cash. In order to successfully refuse cash, it is imperative that your lease states this rule, and that you stick by it. Accepting cash just one time can nullify your rule. If a tenant comes in on the last day of the Three Day Notice with cash and you refuse it, demanding a cashier’s check or money order, we do not recommend charging any additional late charges to the tenant for the day it may take to comply with your request, thus avoiding a potential conflict with the lease terms and Florida law. Often a landlord will not want to accept a personal check on late rent or from a tenant who has bounced a check in the past. Clearly, if your lease allows you to refuse a personal check at any time or for late rent, you are permitted to do this. It is crucial that you examine your lease and make sure that it gives you the latitude to refuse a personal check at any time. Again though, if you have accepted personal checks when the rent was late or after the tenant had bounced a check, you may have a problem, as the courts consider this act of yours as creating a waiver or a modification of the terms of your lease.

THE TENANT OFFERS TO PAY THE RENT, NOW WHAT? If the tenant attempts to pay the full rent as properly demanded prior to the expiration of the Three Day Notice, the landlord must accept the rent. Often the landlord is fed up with the tenant not paying on time, tired of giving Three Day Notices or really wants the tenant out for some other non-rent related reason. The landlord must accept the rent. Failure to accept the rent and then attempting to file an eviction action will result in an unsuccessful eviction if the tenant fights the case, and especially if the tenant deposits the rent into the court registry and receives a trial in court. Occasionally the tenant will attempt to pay partial rent to the landlord. The landlord is permitted to take the rent that the tenant offers, but should then immediately serve the tenant a new Three Day notice with the balance owed. Continually accepting partial rent can establish a pattern and a potential waiver which could make it more difficult to evict the tenant at a future time. If the tenant attempts to pay the rent without the late charges, and your lease permits you to apply payments made to outstanding balances such as late charges first, a rent balance will remain for which you can serve a Three Day Notice. It is imperative that the tenant knows exactly how you applied the payment so there is no confusion, with the tenant thinking that the rent has been completely paid, rather than some of the payment having been allocated to late charges. If the tenant attempts to pay the rent shortly after the Three Day Notice has expired but before you have filed an eviction, should you accept the rent? We say “YES” emphatically. The name of the game is rent collecting. Judges will question your motives as to why you did not accept the rent, and if the reason was non-rent related, you stand a higher chance of losing the eviction action.

SUPPOSE YOU ARE HOLDING A LAST MONTH’S RENT AND IT IS THE LAST MONTH OF THE LEASE? -- If you are holding a last month’s rent, you have no intention of renewing the tenancy, and it is the beginning of the last month of the lease, you would not want to prepare a Three Day Notice. If the tenant paid, this would imply that you are extending the lease for another month and/or creating a month-to-month tenancy. If it is the last month of the lease, and you are not intending to renew or allow the tenant to remain as a month-to-month tenant, send the tenant a Notice of Non-Renewal with a note stating that you are applying the last month’s rent at that time.

REFUSING AND/OR RETURNING THE RENT -- If the Three Day Notice has expired, and after careful consideration of the potential consequences, preferably after discussing this with your attorney, you decide that you are going to refuse the rent, we recommend that you have a witness with you. If the tenant has paid the rent after the Three Day Notice has expired by giving it to a staff member or leaving it in a drop box, you must return the rent immediately to the tenant, or it will be deemed accepted by you by the court. We recommend that you personally deliver the rent back to the tenant, or in the tenant’s absence, place a note on the door to the tenant stating that the rent will not be accepted and notifying the tenant that the rent is immediately being mailed back to him or her. Do your mailing by certified mail. While you can write “void” on a check, never take a money order and write “void” across the front, as this can create a serious problem for the tenant attempting to cash this money order. Never place a money order or check in an envelope and tape it to the tenant’s door. If you have accidentally deposited a tenant’s funds, it is better to consider that you have accepted the rent money. You never want to deposit a tenant’s check and then write a check from your account back to the tenant, as the tenant can stop payment on the check he gave you, and now you just paid the tenant for giving you a bad check. THE THREE DAY NOTICE EXPIRED AND THE TENANT IS ASKING FOR A FEW DAYS TO MOVE-- If this occurs, we recommend that you get the tenant to sign an AGREEMENT TO VACATE. This will memorialize the date that the tenant is leaving, and if you end up having to file an eviction, the tenant will be less apt to succeed in defending on a money issue, as the tenant has signed an AGREEMENT TO VACATE for a date certain and has failed to vacate.

 

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Terminating the Lease Due to Damage

 

THE PROBLEM

Most leases have a clause as follows: “In the event the premises are condemned by a governmental authority of destroyed due to fire, flood or other acts of god, this lease shall terminate as of the date of the condemnation or destruction”. Many leases go on to say that in the event of destruction or condemnation, the tenant’s rent will be abated until such time as the premises are ready for the tenant to reoccupy. These clauses look good on the surface and definitely serve an important purpose, but there is a serious flaw. What happens if the premises are “damaged” rather than destroyed? Do you have to house the tenant? Do you have to make a repair while the tenant is living in the unit? Can you make the tenant leave permanently? Should you put the tenant in another unit? All these questions can be answered and the problems solved easily, if and only if the lease has proper wording. Fires, hurricanes and floods will happen. It is not a matter of if they will happen but when. Are you ready?

FLORIDA LAW AND DAMAGE OR DESTRUCTION OF THE PREMISES

Florida law somewhat addresses the issue of damage or destruction as follows: FS 83.63 Casualty damage: ”If the premises are damaged or destroyed other than by the wrongful or negligent acts of the tenant so that the enjoyment of the premises is substantially impaired, the tenant may terminate the rental agreement and immediately vacate the premises. The tenant may vacate the part of the premises rendered unusable by the casualty, in which case his liability for rent shall be reduced by the fair rental value of that part of the premises damaged or destroyed. If the rental agreement is terminated, the landlord shall comply with s. 83.49(3). Unfortunately, that does not do the landlord much good. As you can see, this addresses the tenant’s rights in the event of damage or destruction, rather than the landlord’s rights.

THE PROPERTY IS SUBSTANTIALLY DAMAGED – CAN WE TERMINATE THE LEASE? -- Unfortunately, Florida law is not clear on this, so we must look to the lease. If we do not have a clause in the lease which allows for the termination of the lease at the landlord’s option in the event of damage to the premises, the landlord may be stuck having to make a repair while the tenant is in the unit, and this may be unpractical or downright dangerous to the tenant or other persons, creating a high liability for landlord. For example, the tenant has a fire and of course blames it on the proverbial “defective stove”. Since the premises may not be actually “destroyed”, the landlord may be under a legal obligation to repair the kitchen while the tenant is in place or be prohibited for removing the tenant due to the fire. The same thing can happen in the event of a flood, or worse yet, in the event of a serious mold situation. If we have a proper lease clause, this problem can be solved. Examine the lease clause that follows:

If for any reason the premises are condemned by any governmental authority, or damaged through fire, flood, mold, act of God, nature or accident, this lease shall cease and shall terminate at LANDLORD'S option as of the date of such condemnation or destruction, and TENANT hereby waives all claims against LANDLORD for any damages suffered by such condemnation or destruction

. As you can see, this clause enables the landlord to have the option to terminate the tenancy and force the tenant to vacate the premises

THE PROPERTY IS DESTROYED – CAN WE TERMINATE THE LEASE?- It is fairly clear that this clause will enable the landlord to terminate the lease in the event the premises are destroyed. Will the part of the clause attempting to relieve the landlord of liability hold up in court? That is a big unknown, but what we do know is most likely we will be able to deal with the immediate problem of removing the tenant from the unit.

WHERE DOES THE TENANT GO?- Based on experience and horror stories, we urge the landlord never to put the tenant into another unit, the corporate unit or the model unit if one is available. We have seen situations where the tenant fails to vacate the original unit and the model or corporate unit, fails to pay rent, holds both units hostage or tries to make you pay for damaged personal belongings, and will not vacate until you do so. If you ever have the need to put up the tenant, our first recommendation is to place them in a hotel for one or two days, making it clear to them and the hotel that this is only for a fixed short period of time. If you decide to put the tenant in another unit on-site, we strongly recommend that you use a TEMPORARY HOUSING ADDENDUM which clearly states that the housing is temporary, lays out all the terms, and has a fixed date when the tenant must vacate. Never should you put a tenant in another unit without a TEMPORARY HOUSING ADDENDUM.

HOW DO WE TERMINATE THE LEASE?- The tenant will need to be given a lease termination notice and most likely a Seven Day Notice of Termination. We urge you to immediately contact your attorney when dealing with these types of situations, and get the attorney involved early on.

 

TEMPORARY HOUSING AGREEMENT AND ADDENDUM

Tenant(s) and Management or Owner hereby agree that Tenant(s) shall occupy the below referenced premises hereinafter “TEMPORARY APARTMENT” on a temporary basis only due to problems with the current apartment occupied by Tenants(s), hereinafter “CURRENT APARTMENT“

TENANT(S) NAME:__________________________________________

OCCUPANTS:______________________________________________

TEMPORARY APARTMENT ADDRESS:_________________________

CURRENT APARTMENT ADDRESS: ____________________________

MOVE IN DATE FOR TEMPORARY APARTMENT:________________

MOVE OUT DATE FOR TEMPORARY APARTMENT:__________________

TERMINATION OF TENANCY: Tenant(s) agree that this agreement and the tenancy created herein shall be terminated by Management or Owner giving Tenant(s) written notice to vacate by hand delivery or posting on the premises. Tenant(s) shall completely vacate the unit and shall not remove any furniture, rental furniture or personal property which may have been present in the TEMPORARY APARTMENT when Tenant(s) took possession. Tenant(s) vacating the unit shall not be dependent upon whether the CURRENT APARTMENT has or has not become habitable.

ENTRY INTO CURRENT APARTMENT: Tenant shall not be permitted to enter into CURRENT APARTMENT during the term of this agreement.

OCCUPANTS: Only those designated in this agreement as Tenant(s) shall occupy the apartment unless written consent of Management or Owner is obtained. Tenant(s) agree to abide by all occupancy rules of Management or Owner.

PETS: Pets are not permitted in the TEMPORARY APARTMENT unless prior written permission is given by Management or Owner.

ASSIGNMENT: Tenant(s) shall not assign this agreement or sublet the premises or any part thereof. Any unauthorized transfer of interest by the Tenant(s) shall be a material breach of this agreement.

RISK OF LOSS: Personal property of Tenant(s) and Tenant(s) invitees shall be in the unit at the sole risk of Tenant(s). Owner or management shall not be liable for any damage caused to said personal property arising from fire, accident, acts of God, criminal acts, acts of negligence or bursting or leaking water pipes.

ATTORNEYS FEES: Should it become necessary for Owner or Management to employ an attorney to enforce the terms and conditions of this agreement, Tenant(s) shall be responsible for all costs and Attorneys fees whether or not suit is filed.

LOSSES AND DAMAGES TO CURRENT APARTMENT: Tenant(s) agree that Management’s or Owner’s providing this TEMPORARY APARTMENT to Tenant(s) is not required by law and is being done as a courtesy to Tenant(s). Tenant(s) agree that the use of or vacating the TEMPORARY APARTMENT is not related to or dependent upon Management or Owner compensating Tenant(s), repairing the CURRENT APARTMENT, or paying for any damages suffered by Tenant(s), and Management or Owner providing the TEMPORARY UNIT shall in no way imply that Management or Owner has any obligation to repair the CURRENT APARTMENT or compensate the Tenant(s) in any way.

RADON GAS: Radon Gas is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. Broker makes no representations about the existence of radon gas on the subject Premises.

TIME IS OF THE ESSENCE:Time is of the essence with respect to all time periods contained in this agreement.

OTHER TERMS: ALL OTHER TERMS OF THE LEASE AGREEMENT OF THE CURRENT APARTMENT SHALL APPLY AND ARE INCORPORATED HEREIN UNLESS IN CONFLICT WITH THIS AGREEMENT WHEREBY THE TERMS OF THIS AGREEMENT SHALL APPLY.

ABANDONED PROPERTY: BY SIGNING THIS RENTAL AGREEMENT THE TENANT AGREES THAT UPON SURRENDER OR ABANDONMENT, AS DEFINED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT'S PERSONAL PROPERTY

 

______________________________________ TENANT

 

______________________________________ TENANT

 

______________________________________ MANAGEMENT/OWNER

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Attorney’s Fees and the Landlord/Tenant Relationship

 

ATTORNEY’S FEES AND THE LANDLORD/TENANT RELATIONSHIP

In most legal disputes, each party, the plaintiff and the defendant, the winner and the loser, each have to hire an attorney and pay their own attorney’s fees to that attorney. An example would be a car crash where I smashed into your car and did $500.00 worth of damages to your fender. If we could not come to an agreement, you might hire an attorney and take me to court. A lawyer who represents himself has a fool for a client, so I go out and hire an attorney to represent me. We go to court, and you can prove that the accident was due to my carelessness. The judge awards you $500.00, which presumably I will go ahead and pay you. Let’s assume that each of us paid our attorney the bargain price of $750.00 to represent each of us in court. The end result would be that you would have to pay for your attorney, I would have to pay mine, and we probably should have just settled this out of court, because the attorneys made more money on this than all of us. The reason that I, as the losing party to the lawsuit, did not have to pay you for the attorney’s fee that you expended is that under Florida law, the losing party in an automobile accident case does not have to pay the attorney’s fees of the winner. Each of us had to bear our own fees and costs, because that is what the law says. Now, let’s step into landlord/tenant court. A tenant sues you, because he feels that you took too much of his security deposit. The tenant has an attorney. The tenant’s attorney convinces the judge that you are the evil landlord and that you cannot justify the charges you made on the poor tenant’s security deposit. The judge awards the tenant $300.00 that the judge feels you took unfairly, but now for the zinger. The judge awards the tenant $900.00 in attorney’s fees, meaning that you get a judgment against you for not just the $300.00 but also $900.00. You walk out of the courtroom with your head spinning, holding a $1200.00 judgment against you!!! How did that happen?

THE ATTORNEY’S FEE CONUNDRUM IN FS 83.48 ---- Florida Statutes 83.48 Attorney's Fees states as follows “In any civil action brought to enforce the provisions of the rental agreement or this part, the party in whose favor a judgment or decree has been rendered may recover reasonable court costs, including attorney's fees, from the nonprevailing party”. This statute has major ramifications to the landlord and can make a simple couple hundred dollar dispute into a $1000.00 plus nightmare very quickly. The prevailing party, meaning the winning party, in any landlord/tenant dispute can and will get an award of attorney’s fees in the event a court case is filed. In most cases the landlord wins, as we see so often in eviction actions, but what good is it if you get an award of attorney’s fee against a tenant who can’t even pay you the rent? Getting an award of fees certainly does not mean you will ever see the fees. The problem lies in the tenant getting an award against the landlord, as this judgment will attach to the property and become a judgment lien against the property.

EVICTIONS AND ATTORNEYS FEES-- The prevailing party in an eviction action is entitled to an award of attorney’s fees and costs. This is authorized by statute and is pled for in the eviction lawsuit. Thus, if you are successful in evicting the tenant, you can ask the court to award you fees and costs. Let’s say you lose the eviction. You may have to pay the tenant’s fees and costs if the tenant retained an attorney. Now what if you simply filed an eviction in error against a tenant, thinking that she owed you the rent but the tenant had in fact paid the rent and you either misplaced or incorrectly posted the payment. You would of course immediately dismiss the case. No harm done, right? Not if the tenant retained an attorney and filed and answer or Motion to Dismiss. Here you would possibly be on the hook for the tenant’s attorney’s fees, even though you dropped the case quickly and never pursued it further. You may wonder how you can lose an eviction. There are a number of ways: your Three Day Notice could be wrong, you prepared the notice incorrectly, you served the notice incorrectly, the tenant had a valid defense of payment, you failed to make a repair, you accepted late rent on a regular basis, or you are an apartment community and failed to get your fictitious name registered. There are many other ways you can lose a case. The last thing you want is to be on the hook for attorney’s fees of the tenant.

ATTORNEY’S FEES AND SECURITY DEPOSIT DISPUTES-- Few landlords have not experienced a security deposit dispute at one time or another. Routinely, tenants feel that the landlord unfairly took too much of a security deposit from them for damages that the tenant vehemently denies. While most of these disputes should be and are settled prior to any litigation, in the event they end up in court, landlords are often surprised to see how the judge acts quite kindly to the tenant, and looks upon the tenant as the victim and the landlord as the evil person who is trying to rip off the tenant. The landlord must prove that the tenant damaged the premises, there is the uncertainty of whether something is over and above ordinary wear and tear, the landlord often does not have a detailed move-in and move-out inspection sheet, and often the landlord does not have photos to document the property condition before move-in and after move-out. More often than not, the judge ends up ordering the landlord to return some of the security deposit to the tenant. Now suppose the landlord claimed $500.00 of a $750.00 security deposit, and in court the judge feels the landlord was only entitled to $450.00 of the security deposit. Who is the prevailing party? Most of the case law unfortunately says that the tenant is the prevailing party because he or she sued and got something back from the landlord. This does not seem fair, but most judges will consider the tenant in a case such as this the prevailing party. If the tenant had retained an attorney to represent him in court, the landlord will most likely have to pay a significant amount of attorney’s fees to the tenant. The amount of the dispute or the amount the tenant wins has no relation to what the attorney can ask the judge for in attorney’s fees. If the attorney can convince a judge that 10 hours were spent on the case at $250.00 hour, the landlord could end up having to pay the tenant’s attorney $2500.00, when the dispute was only about a $500.00 claim that was made on the security deposit. A word to the wise: if the tenant gets an attorney and is threatening a lawsuit, make darn sure you are going to win before you take a stance that you are not going to budge and settle the case.

WHY WORRY ABOUT ATTORNEY’S FEES-- Up until around 10 years ago, it was rare that a tenant would retain an attorney to defend them in an eviction action or to pursue a security deposit dispute. With close to 100,000 lawyers now in Florida, things have changed. We now have lawyers who are specializing in representing tenants for the sole purpose of extracting attorney’s fees out of the landlord. These attorneys are advertising and direct mail marketing to tenants who are under eviction, offering free consultations. The attorney then examines the case, looks for a weakness and next thing you know, you are up against an attorney in court who has filed an Answer, Counterclaim and three Motions to Dismiss. Take your time when preparing your notices, evict cautiously, and when making a claim on the security deposit, document absolutely everything you can. Most losses by landlords in court are completely avoidable.

For further information of the above topic or any other topics contained in this site, feel free to call 1 800 253 8428 or email us atInfo@Evict.com

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Law Offices of Heist, Weisse & Wolk, P.A.
Phone: 1-800-253-8428 Fax: 1-800-367-9038

Serving Florida's Property Managers with main office in Fort Myers Beach. Available by appointment in Orlando and Clearwater


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