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Landlord-tenant — Eviction — Attorney’s fees — Lease provision allowing for recovery of attorney’s fees without need for rendition of judgment or decree  is void.  Further,  tenant is not successful litigant where landlord voluntarily dismissed eviction action after tenant vacated premises


Landlord, as Plaintiff, filed a Tenant Eviction Complaint on June 8, 2011 based on nonpayment of rent. On or about June 15, 2011, Tenant, through counsel, filed a Motion to Dismiss, and in the Alternative, Affirmative Defenses, Motion to Determine Rent and Demand for Attorney Fees. On June 15, 2011 Tenant deposited the rent alleged to be due into the Registry of the Court. On July 5, 2011 Defendant/Tenant turned over the keys of the rental unit to Plaintiff/Landlord and Plaintiff/Landlord dismissed this action by the filing of a Notice of Voluntary Dismissal.  On July 28, 2011 Defendant filed its Motion for Release and Return of Monies Paid Into Registry of the Court and for Award of Attorney Fees

Lease Provision as Basis to Recover Attorney Fees

The “Legal Fees” provision of the lease agreement states, in sum, the successful party “may, to the extent legally available, recover reasonable legal fees and costs from the unsuccessful party.” This Court rules Defendant is not entitled to recover attorney fees pursuant to paragraph 15 of the lease for the following reasons, to wit: the “legal fees” provision of the lease is void and unenforceable pursuant to Florida Statute 83.47; the lease language is not a clear and unambiguous mandate to award attorney fees to the “successful” party; and Defendant is not the “successful” party in this action.

The “Legal Fees” provision of the lease is void and unenforceable as being violative of Florida Statute 83.47. As worded, the lease provision expands the basis by which a party can recover attorney’s fees beyond the parameters of Florida Statute 83.48.

Florida Statute 83.47 provides:

83.47 Prohibited provisions in rental agreements

(1) A provision in a rental agreement is void and unenforceable to the extent that it:

(a) Purports to waive or preclude the rights, remedies, or requirements set forth in this part.

(b) Purports to limit or preclude any liability of the landlord to the tenant or of the tenant to the landlord, arising under law.

(2) If such a void and unenforceable provision is included in a rental agreement entered into, extended, or renewed after the effective date of this part and either party suffers actual damages as a result of the inclusion, the aggrieved party may recover those damages sustained after the effective date of this part.

Florida Statute 83.48 provides:

83.48 Attorney’s Fees. — 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 entered may recover reasonable court costs, including attorney’s fees, from the nonprevailing party. (emphasis added.)

Clearly, by statute, to recover attorney’s fees in a landlord/tenant matter a party must receive a favorable judgment or decree; thus to recover attorney’s fees the rendition of a judgment or decree is required. Accordingly a lease provision which allows for the recovery of attorney’s fees without the rendition of a judgment or decree is void and unenforceable pursuant to Florida Statutes 83.47

Finally, even if the language of paragraph 15 of the contract were to be construed as a directive to award attorney’s fees, only the “successful” party is entitled to recover. Given the facts of this case it would be rather credulous of this Court to determine Defendant the “successful” litigant when Plaintiff/Landlord filed a voluntary dismissal simultaneous with Defendant/Tenant vacating the premises. Giving due consideration to the facts of this case this Court determines Defendant is not the “successful” party.

Rent Deposit

Florida Statute 83.60(2) requires a Tenant to pay rent into the registry of the Court “if the tenant interposes any defense other than payment”. Clearly the purpose of rents being deposited into the registry of the Court is to protect the parties in their respective positions: inter alia; the Landlord is protected by rent deposits in the event of extended litigation; the Tenant is protected in the preservation of rents paid in the event adjustments are necessary upon a rent determination. In landlord/tenant cases, the rent deposit serves much like a bond subject to claims as limited by the purpose of the rent paid. Based on the facts of this case the Landlord is entitled to the rent in the registry of the Court to compensate for a portion of time rent was not paid directly to the Landlord by Tenant. First Hanover v. Vazquez, 848 So.2d 1188 (3rd DCA; 2003) [28 Fla. L. Weekly D1319b]

ROBERT VOIGHT D/B/A EMERALD RUN APTS.,  v. ALISHA MCCLAIN.  County Court, 10th Judicial Circuit in and for Polk County. Case No. 2011CC-2611. August 29, 2011. Robert G. Fegers, Judge. Bottom of Form

19 Fla. L. Weekly Supp. 737a .