LEASE BREAK RAMIFICATIONS

Your resident skipped out in the middle of the night 3 months into a 12 month lease. No notice given, not even the keys left behind. The only thing the resident left you with was a mess and a vacant apartment. Your owner or management company wants you to sue the resident for the money owed and collect this money. Can you sue? Should you sue? Is it worth it? Are there risks?

Residents break their leases on a regular basis. Sometimes they give you notice, but often they just get up and leave. While in some cases you are quite happy to be rid of a problem resident, in other cases the skip was unexpected, and the manager is upset at the loss of rental income and the prospect of a vacancy or having to retain a new resident.

The usual reaction by the manager is to want to sue the resident to recover the lost rent. Unfortunately, most managers are unsuccessful at collecting the rent in this fashion, and in our opinion, it is just not recommended.

For how much can you sue the resident? You can only sue the resident for the rent that you lost as it becomes due plus the damages to the property that exceed ordinary wear and tear, and these damages must be proven.

When can you sue the resident? You can sue at any time after the skip, but you will not know what is owed until you have the unit re-rented. You cannot calculate the rent owed for the remainder of the lease and sue for this amount, as acceleration is not allowed.

Where is the resident? In order to sue someone, you need to find them. If you cannot find them, you cannot sue them. It is that simple.

So you find the resident and sue the resident. Now what? The owner or the property manager will have to attend a pre-trial which could take hours of waiting. At the pre-trial the resident may not show up, and you will receive a default judgment. If the resident shows, the case might be settled, or if it is not settled, the case will be set for trial at a later date. This will require another trip to court where a full fledged trial will be held and all witnesses must attend.

Can an attorney sue the resident for you? Sure, and you will be throwing good money after bad. A typical small claims suit handled properly will cost between $500.00 to $2500.00 on average in attorney’s fees. You still will need the owner, the property manager and/or witnesses in court at the pre-trial and definitely at the trial.

Doesn’t the resident have to pay your attorney’s fees? If you win in court, the judge may award you attorney’s fee and costs based on the lease or Florida statute. Collecting them from the resident is a whole different story.

Can the resident win in court? A resident who breaks a lease will come up with all kinds of reasons why the lease was broken, most of these reasons pertaining to the condition of the property, repairs that they claim were not completed, safety issues, noise issues or just about anything under the sun. These can all be LIES, but you will have to defend yourself against these lies. Many residents can lie more convincingly than you can tell the truth. If the resident wins, YOU will have to pay the resident’s attorney’s fees. Many judges feel a lot of sympathy for a resident who breaks a lease, if the resident comes up with a good sob story.

The Counterclaim Risk Any time you file a lawsuit, you run the risk of the resident, with or without an attorney, filing a counterclaim against you. This means that the tables are turned, and now you are not only a plaintiff, but you are a defendant and must defend yourself against the resident’s alleged claims. This often will require you to hire an attorney and subject you to not only your attorney’s fees, but the resident’s attorney’s fees in the event he retains an attorney and prevails in court. A simple lawsuit you file against a resident for rent that he owes you can result in a complex counterclaim filed against you for damages the resident allegedly suffered due to your actions or inactions. The accusations the resident may make could be totally false and outrageous, but you will still be required to defend yourself.

ARE YOU CONVINCED YET? Our office does not recommend lawsuits against a resident unless it is an eviction. If the manager wishes to pursue a resident, we recommend that they do this on their own and recommend that the property manager does not file suit for the manager. Do some managers win and collect their money? Absolutely. Most do not. We recommend that you take the money you would have spent filing a lawsuit, pay for an extra ad in the newspaper, and re-rent the property as soon as possible.