Eviction Backfire: Attorneys’ Fee Awards to Tenants When Landlords Blunder Eviction Suits
Lately, we have been inundated with calls from Landlords who have unsuccessfully sought to evict their tenants. Rather than receiving judgments for possession and recovering their properties, Landlords report entry of dismissals and Take Nothing Judgments.
These unfavorable results often arise from technical deficiencies in the Landlord’s handling of the eviction process.
HOW DID THE TENANT FIND / AFFORD AN ATTORNEY?
Many times, the Tenant who claims lack of money has prevented timely rent payment, somehow appears at court with an attorney.
What happens next is somewhat predictable: The tenant’s attorney points out a procedural defect — most often lack of service of a Notice to Vacate — and ends up obtaining a Judgment against the Landlord. Sometimes, the Judgment is awarded in the attorney’s own name, thereby making the Tenant’s Attorney a “Judgment Creditor” of the Landlord.
There are savvy “Tenant Rights” attorneys who recognize that Landlords frequently make mistakes when representing themselves. These mistakes translate nicely into attorneys’ fee awards against Landlords. Not surprisingly, a handful of attorneys have created a “cottage industry” of representing tenants “on the come” (in the hope that fees will be awarded against a landlord).
Many of these attorneys don’t charge tenants a dime. Instead, they collect their monies from hapless Landlords, or not at all.
ATTORNEYS’ FEES JUDGMENTS ARE ENFORCEABLE THROUGH COLLECTIONS
No matter the perceived injustice, awards of attorneys’ fees against non-prevailing landlords have become common in eviction lawsuits. These Judgments are valid, and unless satisfied or appealed, can result in serious problems for Landlords who try and fail to evict tenants.
Awards of attorneys’ fees in eviction suits find their legal basis in Section 24.006(c) of the Texas Property Code, which provides:
Sec. 24.006. ATTORNEY’S FEES AND COSTS OF SUIT. (a) Except as provided by Subsection (b), to be eligible to recover attorney’s fees in an eviction suit, a landlord must give a tenant who is unlawfully retaining possession of the landlord’s premises a written demand to vacate the premises. The demand must state that if the tenant does not vacate the premises before the 11th day after the date of receipt of the notice and if the landlord files suit, the landlord may recover attorney’s fees. The demand must be sent by registered mail or by certified mail, return receipt requested, at least 10 days before the date the suit is filed.
(b) If the landlord provides the tenant notice under Subsection (a) or if a written lease entitles the landlord to recover attorney’s fees, a prevailing landlord is entitled to recover reasonable attorney’s fees from the tenant.
(c) If the landlord provides the tenant notice under Subsection (a) or if a written lease entitles the landlord or the tenant to recover attorney’s fees, the prevailing tenant is entitled to recover reasonable attorney’s fees from the landlord. A prevailing tenant is not required to give notice in order to recover attorney’s fees under this subsection.
(d) The prevailing party is entitled to recover all costs of court.
ACT PROMPTLY IF YOU ARE A LANDLORD AGAINST WHOM THE TENANT’S ATTORNEYS’ FEES HAVE BEEN ADJUDGED
Frequently, the best remedy for a Landlord who has been adjudged liable for the tenant’s attorneys’ fees is to appeal the Judgment (whether Take Nothing or Dismissal) to the County Court. However, eviction appeals require strict compliance with the Texas Rules of Civil Procedure. These Rules set the deadline and procedure for filing the appeal.
Additionally, an appealing Landlord must post a bond in order to perfect the appeal. Bonds can be tricky, and if rejected, will result in dismissal of an appeal.
Landlords who find themselves on the bad end of eviction judgments should consider contacting an experienced eviction lawyer for assistance.