In any type of legal action, a settlement agreement is normally an option for the parties to resolve the case. In a settlement agreement, the parties can take control of the outcome, rather than go through litigation, with its inherent risks and, at a minimum, time delays. The question arises for landlords, should I be open to settling the case with the tenant? The answer is, yes.
First, I want to address the misconceptions that many have about settling an eviction case (or any case for that matter). To many landlords, the idea of settling a case with a tenant may feel “unjust” because, after all, the tenant has not lived up to their end of the lease agreement, whether by failing to pay rent or violating the lease in some other way. So, some landlords do not feel they should settle the case.
Here’s the problem: focusing on what the tenant did wrong is not the correct way to look at an eviction case, because it’s based in emotion and not looking out for the landlord’s best interests. That can lead the landlord to make a decision that is not in their best interest.
The Correct Focus
Landlords should always consider what is in their best interest when it comes to a potential settlement. The focus should be:
- How quickly can I get the property back in my possession?
- How much money in legal fees can I save by entering into a settlement agreement?
- What factual or legal issues am I avoiding or resolving to reach a place of certainty in less time and with less cost?
These questions focus on saving the landlord time, money and energy and serve to mitigate further losses. There are several guiding principles that an experienced landlord-tenant attorney uses when determining whether a settlement agreement is in the landlord’s best interest.
Saving The Landlord Legal Fees
In an eviction case, the goal is simply to get the tenant out of the property. This can happen by 1) the tenant voluntarily vacating, or 2) if the court ordered their removal. Given the inherent procedures that must take place in an eviction case, the landlord will incur legal fees for having to prosecute an eviction through the entire process.
In most cases, the landlord will never recoup their legal fees, because most tenants do not have enough assets or income on which to seek collection. In the case of a judgment for attorney’s fees and costs, the landlord will have to pursue collections through legal processes, which will cost the landlord even more legal fees. As they say, don’t use good money to chase bad money.
As such, if the landlord can obtain the same result of removing the tenant from the property by an agreement instead of litigating, the landlord will save hundreds of dollars, if not thousands, by simply entering into a settlement agreement. Again, the court can only grant the eviction to remove the tenant. To pursue damages against the tenant, the landlord must file a separate cause of action for back rent.
Time Delays in the Eviction Process
In Florida, the statutes and rules of procedure impose certain hurdles that must be overcome to obtain a final judgment and writ of possession. These procedures necessarily delay the time it takes to get a final judgment to remove the tenant. Below is a basic synopsis of the time delays in Florida (which vary from judge to judge and county to county):
- Once an eviction is filed, the clerk must issue the summons. This can take several days.
- Once the clerk issues the summons, the service processor must serve the tenants. Depending on the server, this normally takes between one and three days.
- If the process server serves the tenant in person, the tenant has five days (excluding the date of service, weekends, and legal holidays) to file an answer. If the summons is posted on the door, the clerk of court must mail the summons and complaint to the tenant’s address, which delays the service date until the clerk mails the summons and complaint.
- If the tenant files an answer, some courts wait for one of the parties to move the court for some kind of judicial action. Some courts automatically set the matter for a final hearing or rent determination hearing. Courts vary in their procedure in Florida, and even the more efficient courts will not set a hearing on the matter for at least five court days from the date the tenant files an answer, and slower courts may set a hearing much later. Thus, once the tenant files an answer, getting a final judgment may take anywhere from seven days to several weeks (depending on the judge).
- Assuming the landlord prevails at a final hearing or upon motion for a final judgment (e.g., the tenant failed to post rent within five days of being served), the court may not issue the final judgment for a number of days after the hearing or after the plaintiff’s prevailing motion for final judgment has been filed.
- Once the final judgment is ordered by the judge, the clerk of court must issue the writ of possession. This could also take several days, depending on the county.
- Once the clerk issues the writ of possession, the writ must be delivered to the sheriff’s office, and the sheriff assigns a deputy to post the writ of possession on the door of the rental property, giving the tenant notice that they will return to the property 24 hours later to remove the tenant if they have not already vacated. This also may take several days to effect.
When you put the process of time together, it is clear to see that if the landlord can reach an agreement with the tenant to vacate the premises by a specific date —considering the timeframe of the entire eviction process — the landlord is accomplishing the goal of removing the tenant within the same timeframe as if they were to litigate the action to the end of the process and prevail with the court, and they do this without having to spend as much on legal fees. It’s a sure thing with fewer expenses incurred.
Opportunity to Recoup Back Rent
There are some situations where the landlord may be interested in offering a settlement whereby the tenant has to pay back rent (or pay in advance future rent for months that the tenant is permitted to stay) in exchange for an extended period of time for the tenant to vacate the premises — whether that be a specific date in the future or until the natural expiration of the lease term, so long as the tenant pays all future rent payments on time. Then, if the tenant fails to pay the monies owed in a timely manner, that would constitute a default and entitle the landlord to an automatic final judgment to remove the tenant.
This kind of agreement serves the goal of reaching certainty in the eviction, gets the landlord paid, and ensures that if the tenant violates the settlement agreement in the future (e.g., fails to pay future rent on time), the landlord will get an automatic eviction without further need of a hearing or notice to the tenant.
Keep in mind, this kind of agreement is not always available, because not all tenants will be willing to pay any money for such a settlement — they would rather use their money to find a new place to rent. For those tenants, the normal agreement is simply, “you must be out by ‘x’ date, and if not, the landlord gets an automatic eviction order.” But for the tenants who are willing to pay back rent, this agreement can serve the landlord’s interest of getting paid some amount of money, and the tenants get the benefit of not having to vacate the premises in a very short period of time.
Weaknesses in Your Case
The settlement principles above apply even when the landlord has a solid case of eviction, but the reasons to settle increase even more when the landlord has a weakness in their eviction case. An experienced landlord-tenant attorney can spot these weaknesses and advise the landlord accordingly.
If there are weaknesses in the eviction action, the landlord should look to settle with the tenant, even if the landlord doesn’t get everything they may want in the situation, as it is always best to reach a settlement that has beneficial outcomes for the landlord. Remember, the focus is not to “punish” the tenant, but to put the landlord in as good a position as possible given all the circumstances and issues.
In conclusion, entering into a settlement can serve the landlord’s interest of getting the tenants out of the property, and in some cases, getting the landlord some money. Each case is different, of course, and must be judged accordingly. But, in general, there is typically a way to reach a settlement agreement that allows the landlord to reach certainty quickly, reduce time delays, mitigate losses, and reduce legal fees.
When you need to file an eviction, hire a landlord-tenant attorney who specializes in that area of law, has handled many evictions, and knows how the property management business works. An experienced attorney’s advice will help you to reach a beneficial and advantageous settlement.