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Kim Courtney
Kim Courtney,
Category: Legal
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Experience:  Founder/Member at Food Business Association
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What is the likelihood I would be successful in winning a ...

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What is the likelihood I would be successful in winning a claim against my Tenant for eviction proceedings fees. I lost the eviction proceeding and she just moved out. I cannot hold back her security, but my out of pocket totaled $2,554 and I would like to file a claim against her.

Hello, I am happy to answer your question.

Generally speaking attorney's fees and costs are only to be recovered for the winning party in a lawsuit.

The exception would be if the terms of your lease specify that you will recover this money no matter who filed the claim, and no matter who wins.

Please take a close look at this clause in your lease. If there is no clause, then you lose. If it is there but is vague, you probably won't be successful either. I know it's tough to swallow but it really is just a cost of doing business.

I hope this was helpful and good luck.

Kimberly

Kim Courtney and 4 other Legal Specialists are ready to help you
Customer: replied 8 years ago.
Reply to Courtney's Post: There is no provision in the Lease that I would be entitled to attorneys fees. I incurred fees for the eviction proceeding along with attorneys fees for enforcement of gaining access to the property which was clearly covered by the Lease. What I want to know is what are my chances of being successful in a small claims forum.

Ok, regarding your attorneys fees, I don't think your chances are great.

Regarding the other fees to gain access to the property, it depends upon what your basis was, and what the lease gives you the right to do. If you lost the eviction proceeding, the question I have is why? If you entered the property, did you have the right to do it "under those circumstances"? Did the judge in the eviction proceeding determine that you had the right, or did he mention it?

You aren't giving me a lot of details, but it doesn't sound to me like you have much of a chance.

However, in the end, small claims court is not too costly, so you don't lose much giving it a shot. That's what I would suggest if you think the terms of the lease support your actions and expenditures under the circumstances.

Thanks,

Kimberly

Customer: replied 8 years ago.
Reply to Courtney's Post: The Tenants viewed the property on December 1 and took possession on December 2. It was agreed that because we had nearly 1/3 of our belongings in the home and it was not rented as "semi-furnished" we would have access to take our stuff out as we could. After "pleading" with us b/c she had no money to assist with utilities, as her roommate never moved in, we paid $306 toward heat. After having to go in on an emergency basis, costing me $650 out of pocket when she failed to fill the propane tanks and the heat went off (utilities were not included in the lease) I had enough and attempted to evict. She had not paid her rent and we filed a nonpayment of rent eviction. She showed up in court with a wad of cash and I lost the proceeding. It was downhill from then. She would not let us return to the property to take any more of our belongings. My Lease states: Tenant agrees to allow Landlord reasonable access to the residence for inspection and repair. Landlord agrees to enter the residence only after notifying the Tenant in advance, except for an emergency.

I hired an attorney to enforce this provision so that I could remove my belonging starting May 15 in anticipation of the end of her lease. My attorney wrote letters, had conversations with her, she would not comply. It did not state that it was mutually agreeable time, just advance notice, which we did. Each time, she resisted and stated she would file a trespassing claim against me. My attorney advised this was a baseless claim, but nonetheless, we did not access the property whatsoever. Part of the attorneys fees were that the management company was repeatedly denied access to show the property from Memorial Day weekend through June 15 to prospective tenants.

I would like to file a small claims court to recover: eviction proceeding fees, attorney fees for enforcement of the lease and the propane that she duped us into paying for. She claimed the "single mom" card and I was nice until I learned at the eviction proceeding that she sends her 3 year old to a private nursery school that costs $8K per year. Until the eviction proceeding she was living in our house paying $700 rent for a 4br/2.5bath house that she was to share with another "single mom" who decided 3 days after signing the lease that this person was "twisted". Even though the 2nd person didn't move in, she continue to pay her 1/2 of the rent, so as to live up to her part of the contract, but she refused to help the "other one" pay the utilities.

I may not be able to recover the eviction proceedings, but at the very least I want to be able to recover the attorneys fees for enforcement of the contract. If I file small claims court, I want to list everything. I have monthly reports from my management report documenting everything as well as my invoice for my attorneys fees.

Now what do you think?

Ok, under these circumstances you should be able to recover these amounts, but what I don't understand is why you didn't file for these amounts during the eviction proceeding? This is what the small claims judge is going to ask, and it might be the reason why you can't recover. You should have demanded that she pay what was owed, PLUS those fees. I assume she only paid you the rent due and owing.

I think it's worth a shot, since it won't cost you much. Just make sure you have all your paperwork documenting everything you claim.

Best of luck,

Kimberly

Customer: replied 8 years ago.
I didn't file with the eviction proceedings because my management company, who handled the eviction proceeding (not an attorney) only filed for unpaid rent, not for breach of contract. I could think about deducting the $306 from her security, but I don't think I'll be able to do that. She did reimburse for the $650.

The attorneys fees ($972) I incurred were 2 mos after the eviction proceeding was complete. She did reimburse us for the $650 for propane.

Let me know your thoughts and I think I'll be ready to "accept".

Ok, you should be fine then. As long as you weren't expected to adjudicate it at that time then you shouldn't be barred from doing so now.

Good luck!

Kimberly

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