Tenant has left but is defending Eviction Complaint. How do I negotiate agreement?

[Rich Thomas]

Hi Everyone

Thank you in advance to anyone who reads my post and provides a response to my questions. 

The property ( condo apartment ) is in Broward County , Florida. 

The tenant has now left the property ( He has handed keys to my agent ) after being served with the Complaint for Tenant Eviction.  There is  obviously no need to proceed with the eviction hearing. However,he has employed an aggressive real estate attorney and is accusing me of not maintaining the property ( his statements are blatantly false ) and denying that he owes me rent .

He owes $5000 rent arrears ( less $1350 deposit ) and has caused damage to the property via wilful negligence. It has now become clear that there was a leak from the upstairs bathroom which has been going on for months and which he failed to disclose. Part of the bathroom ceiling fell in and at that point he just stopped paying his rent and only informed me after I commenced eviction proceedings. If there is mold in the property it is because of his negligence. He has also actually admitted in his defence ( Affirmative Defense no 3 ) installing a washer and dryer at the property. He was not given permission to do that. Permits and HOA approval would have had to be obtained. They were not.

Please see Complaint and Tenant's Defence below

However, my attorneys who served the eviction notice are now saying:

"Since the tenant has hired an attorney, if you dismiss the case without an agreement, the tenant's attorney can come after you for attorney fees and prevail. At this point, it's best to negotiate a dismissal to minimize your losses . xxx will contact the tenant's attorney to try to settle the case. Pursuant to the Retainer agreement, when the case is contested, you are billed hourly but it will be a flat fee of $250 if the parties can settle without further litigation. As part of the negotiations, xxx will TRY to keep the security deposit out ".

My attorneys are implying that because the tenant has left  and has employed an attorney to defend himself and make accusations, that I cannot do anything about my losses, the arrears or the damage to the property because I have to " negotiate"  an agreement by agreeing to allow him to walk away without paying his rent arrears. They are even implying that I may have to repay him his security deposit to get  an " agreement ".  Otherwise the judge will dismiss everything about the case because the tenant has left! 

I am concerned at these comments and not happy with their expectation that I pay them just to get nothing in return ! I am apparently now the defendant in this case as much as the tenant. I did not realize that could occur in an eviction case. 

MY QUESTIONS ARE AS FOLLOWS :

1 .Can I merely cancel the eviction case and then deal separately with the matters of rent arrears and damage ?

2. If I offer to give up the eviction case and offer to pay my own legal fees will a judge consider that reasonable and find in my favor if the defendants attorney does not accept that offer ?

3. Or do I have to forget the rent arrears as well and possibly even repay him his deposit to secure an agreement which a judge will find acceptable ?

I have included the  Complaint for Tenant Eviction and Defendant's answers and affirmative answers below.

COMPLAINT FOR TENANT EVICTION
1. This is an action to evict a tenant from real property in Broward County, Florida.
2. Plaintiff is the landlord and Defendant is the tenant of the following described real property in the said county, xxxxxx
3. Defendant has possession of the property under a month to month agreement to pay rent at $1,750.00 per month.
4. Defendant failed to pay rent for October and November 2022.
5. Plaintiff served Defendant with a written notice on December 27, 2022 to pay the outstanding rent of $3,500.00 or deliver
possession, but Defendant refuses to do either. A copy of the notice is attached to this complaint.
6. Plaintiff has not received payment since notice was delivered to Defendant.
7. Plaintiff has retained the law firm of xxxxx., and is obligated to pay said firm reasonable legal fees to enforce
said rights. Plaintiff is entitled to an award of costs and reasonable attorney’s fees pursuant to Florida Statutes § 83.48



DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES
Defendant, xxx by and through counsel, hereby files its Answer and
Affirmative Defenses to Plaintiff, xxx’ Complaint, and states as follows:
1. Defendant denies paragraph 1 and demands strict proof thereof.
2. Defendant admits he was the tenant and denies the remainder of paragraph 2 and demands
strict proof thereof.
3. Defendant denies paragraph 3 and demands strict proof thereof.
4. Defendant denies paragraph 4 and demands strict proof thereof.
5. Defendant denies paragraph 5 and demands strict proof thereof.
6. Defendant denies paragraph 6 and demands strict proof thereof.
7. Defendant denies paragraph 7 and demands strict proof thereof.

AFFIRMATIVE DEFENSES
1. Plaintiff failed to maintain the property in a clean, sanitary, safe, and habitable condition.
To wit, there were termites, water damage to the ceiling/walls, and dangerous mold
levels. See Florida Statute § 83.201.
2. Plaintiff failed to maintain the property in a habitable condition by failing to have the air
conditioning system repaired within a reasonable time. To wit, this occurred in the
summer months when the temperatures were more than 90 degrees Fahrenheit. Plaintiff
breached the warranty of habitability.
3. Plaintiff failed to install the washer and dryer as promised and Defendant had to pay for
and purchase his own washer and dryer units that are his property which would entitle
Defendant to a set-off as money is owed to Defendant.
4. Plaintiff is in possession of Defendant’s security deposit and Defendant had to use his
own money to make repairs on the property. Since no rent or costs are owed, Defendant
owes Plaintiff nothing. Alternatively, Defendant pleads a Set-Off.
5. Defendant vacated the property in a timely manner and owes Plaintiff nothing.
6. Defendant is entitled to attorney’s fees and costs pursuant to Florida Statute § 83.48.
Defendant, xxxx reserves the right to amend and/or add additional defenses
and affirmative defenses as discovery and investigation continues.

My responses would be as follows:

As regards the specifics of the defendants answers and affirmative defenses
Defendants answers:
As he has now left I accept Statements 1 to 3 and 5 . I do not accept statement 4 or 6. 7 is negotiable
Affirmative defenses:
I do not accept any of Statements 1 to 6

[Nathan Gesner]

Quote from @Rich Thomas:

I love our "justice" system! And I love attorneys even more.

Florida Statutes Sections 83.56 and 83.60

A Tenant cannot withhold rent from the Landlord without sending notice and allowing the Landlord time to cure the non-compliance, violation, or default of its obligations. Failure to send the required notice to the Landlord has significant impact on a Tenant's rights under the rental agreement and Florida Statutes.

I'm just a layman in Wyoming and it took me about five seconds to find that answer. If your Tenant did not give you written notice and the opportunity to repair, then he had no right to withhold rent and is in violation of the lease.

I would stop the eviction action and proceed with small claims for a judgment. If your attorney is unwilling to stand up for you, then I recommend getting a second opinion. If both of them agree that you should walk away from this, then it's probably the right thing to do.

The Tenant is going to spend money fighting this with an attorney. If you find an attorney willing to play hardball back, I recommend giving them the choice of settling for 50% - 75% of what is owed or going to court and possibly paying the entire amount, including court costs and attorney fees.

But it all depends on evidence and how strong your case is.