Law Offices of Heist, Weisse, and Wolk, P.A.
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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 resident sues you, because he feels that you took too much of his security deposit. The resident has an attorney. The resident’s attorney convinces the judge that you are the evil manager and that you cannot justify the charges you made on the poor resident’s security deposit. The judge awards the resident $300.00 that the judge feels you took unfairly, but now for the zinger. The judge awards the resident $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 manager 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 manager 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 resident 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 resident getting an award against the manager, 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 resident, you can ask the court to award you fees and costs. Let’s say you lose the eviction. You may have to pay the resident’s fees and costs if the resident retained an attorney. Now what if you simply filed an eviction in error against a resident, thinking that she owed you the rent but the resident 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 resident retained an attorney and filed and answer or Motion to Dismiss. Here you would possibly be on the hook for the resident’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 resident 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 resident.

ATTORNEY’S FEES AND SECURITY DEPOSIT DISPUTES-- Few managers have not experienced a security deposit dispute at one time or another. Routinely, residents feel that the manager unfairly took too much of a security deposit from them for damages that the resident vehemently denies. While most of these disputes should be and are settled prior to any litigation, in the event they end up in court, managers are often surprised to see how the judge acts quite kindly to the resident, and looks upon the resident as the victim and the manager as the evil person who is trying to rip off the resident. The manager must prove that the resident damaged the premises, there is the uncertainty of whether something is over and above ordinary wear and tear, the manager often does not have a detailed move-in and move-out inspection sheet, and often the manager 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 manager to return some of the security deposit to the resident. Now suppose the manager claimed $500.00 of a $750.00 security deposit, and in court the judge feels the manager was only entitled to $450.00 of the security deposit. Who is the prevailing party? Most of the case law unfortunately says that the resident is the prevailing party because he or she sued and got something back from the manager. This does not seem fair, but most judges will consider the resident in a case such as this the prevailing party. If the resident had retained an attorney to represent him in court, the manager will most likely have to pay a significant amount of attorney’s fees to the resident. The amount of the dispute or the amount the resident 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 manager could end up having to pay the resident’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 resident 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 resident 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 residents for the sole purpose of extracting attorney’s fees out of the manager. These attorneys are advertising and direct mail marketing to residents 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 managers in court are completely avoidable.

  • The Curable Noncompliance Examined PART 1