Why will the Court refuse to award attorney's fees when I evict a tenant for non-payment of rent? Print E-mail
Written by Kerry S. Doolittle   
Friday, 26 July 2013

Courts will refuse to award attorney's fees in dispossessory cases for one or more of four reasons, each of which is easily corrected.

First, the lease contract does not contain a provision requiring the tenant to pay the landlord's attorney's fees.  Generally, in the United States of America, the common law system worked on the principal that each party pays their own attorney unless there is a specific statutory or contractual basis for making one party pay the other's attorney's fees.  We did not follow the “loser pays” system commonly used in England.  The principal argument for a loser pays system is to discourage frivolous lawsuits and harassment.  The principal argument for our system is that a loser pays system may discourage people from bringing legitimate lawsuits out of fear of losing, particularly in areas where the law has not yet caught up to modern society and technology.  Therefore, if your contract does not provide for recovery of attorney's fees and no particular statute containing such a provision applies, you are simply out of luck. 

Second, even when a lease contains a provision requiring the tenant to pay attorney's fees, such provision is not legally enforceable unless it goes both ways.  O.C.G.A. § 44-7-2(c) states, “A provision for the payment by the tenant of the attorney's fees of the landlord upon the breach of a rental agreement by the tenant, which provision is contained in a contract, lease, license agreement, or similar agreement, oral or written, for the use or rental of real property as a dwelling place shall be void unless the provision also provides for the payment by the landlord of the attorney's fees of the tenant upon the breach of the rental agreement by the landlord.  Unfortunately, the great majority of lease contracts only state that the tenant must pay the landlord's attorney's fees.  I suspect this is because leases are usually prepared by or for landlords, who instinctively leave out any obligation on their own part to pay the tenant's attorney's fees.  Few seem to be aware of the two-way requirement.

The way to fix each of the first two errors is to simply add a valid attorney fee provision as a special stipulation at the end of the lease form (a section for added terms is usually found there), or updating the form itself if you have it in a word processor format.

Third, to obtain an award of attorney's fees, you must actually incur attorney's fees.  If a landlord handles the dispossessory action himself, without the assistance of an attorney, then he has no attorney's fees to be reimbursed.  I know this seems obvious when pointed out, but I have observed landlords asking for attorney's fees in such situations.  The judge will usually ask, “Are you an attorney?” 

Fourth, and perhaps most often overlooked, is that in order for the attorney's fees provision to be enforceable O.C.G.A. § 13-1-11 requires the landlord to notify the tenant in writing that the provisions relative to payment of attorney's fees in addition to the principal and interest shall be enforced and that the tenant has ten days from the receipt of such notice to pay the principal and interest without the attorney's fees.  The tenant cannot avoid liability by refusing to accept the notice.  The written notice reads as follows: “As provided by Official Code of Georgia Annotated (O.C.G.A.) § 13-1-11, you are hereby notified and advised that the terms of the lease agreement regarding the payment of attorney's fees will be enforced.  If the outstanding amount owed for rent, late fees and other sums in the total amount of $_____ are not paid in full within ten (10) days after your receipt of this notice you will become obligated to pay in addition thereto reasonable attorney fees equivalent to 15% of the principal and interest balance.”

Thus to summarize, under Georgia law, any creditor suing to collect has valid contractual right to attorney fees as long as (1) contract terms include an obligation to pay attorney fees (both ways); (2) debt owed under the contract has matured; (3) notice was given to debtor informing him that if he pays the debt within ten days of receipt of notice, he may avoid attorney fees; (4) ten day period has expired without payment of the principal and interest in full; and (5) debt is collected by or through attorney.  Simple really.

Having thus corrected the first three reasons for failure, correct the fourth by sending the following letter to the tenant whenever a default occurs:

    Sample Notice Required to Collect Attorney Fees


Dear _____:

    You are in default under the terms of your Residential Lease Agreement.  The following amounts are past due:

    Rent for the month(s) of __________________________ in the amount of $__________.
    Late Fees at the rate of $__________ per month in the amount of $__________.
    NSF’s charges in the amount of $__________.
    Collections Costs in the amount of $__________.
    Interest in the amount of $___________.

    TOTAL DUE $__________.

    As provided by Official Code of Georgia Annotated (O.C.G.A.) § 13-1-11, you are hereby notified and advised that the terms of the Residential Lease Agreement regarding the payment of attorney's fees will be enforced.  If the total due is not paid in full within ten (10) days after your receipt of this notice you will become obligated to pay in addition thereto reasonable attorney fees equivalent to 15% of the principal and interest balance.  You can avoid paying attorney's fees by paying in full within ten days.

    This notice of default is not intended to give you a grace period for payment of past due amounts, and we may elect to file a dispossessory action against you at any time.

                            Sincerely,


Be sure to include this notice at the end:

    Fair Debt Collection Practices Act Disclosures

    This letter may be considered an attempt to collect a debt and any information obtained will be used for that purpose.  The amount of the debt and the creditor’s name are shown above.  If the obligation is in any way subject to dispute, advise immediately (within thirty days), in writing only, or we will consider your failure to respond to this letter an admission of the validity of the debt and default. If you notify this office in writing within thirty days of your receipt of this letter that the debt or any portion thereof is disputed, we will obtain and provide to you by mail a copy of the verification of the debt or judgment sought to be collected.  Upon your written request made within thirty days of your receipt of this letter, this office will provide you with the name and address of the original creditor, if different from the current creditor.


Of course, if your intent is to evict the tenant, then change the last paragraph to the following:

    This notice of default is not intended to give you a grace period for payment of past due amounts.  Because you are in default we demand that you immediately surrender possession and vacate the premises.  We may elect to file a dispossessory action against you at any time.

    A common misconception among landlords is that once they send this notice letter they must wait ten days before proceeding with the dispossessory.  I suspect that is the reason many choose to skip this step in order to proceed immediately with the eviction.  The truth is that you can send this letter with the demand for immediate possession, and immediately proceed with the dispossessory case.  By the time you reach the dispossessory hearing, the ten days will have elapsed. 

Good Luck

 

 
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