Attorney William asked:




Most “standard” real estate contracts and leases contain provisions that state something to the effect, “If there is any dispute as to the agreement, the winning party is entitled to attorney’s fees.” Is this a good idea?

Well, yes and no. First, understand that attorney’s fees are generally not awarded by the court to the winning party in a lawsuit. There must be either a specific statutory provision or a clause in the disputed agreement that calls for attorney’s fees. In addition, a court may award attorney’s fees where there is “bad faith” on the part of one of the litigants, but judges rarely enforce this rule.

If you have to sue another party to a lease or contract for $100, it hardly seems worth the effort if you have to pay your attorney $2,500 to file the lawsuit. In such cases, the opposing party may thumb his nose at you and say, “so sue me”. The court system is very unfair to the poor in this regard. However, if you are the potential defendant, it works in your favor if someone is thinking of suing you for some bogus reason and you know that they can’t afford an attorney.

So, should you always insert an attorney’s fee clause in every contract or lease that you sign? Well, that depends on whether such a clause inures to your benefit. For example, if you are a landlord, chances are you will be suing your tenant for non-performance of the lease, not vice-versa. So, having the ability to get attorney’s fees if you win is to your benefit. Of course, this may be futile, since any judgment may be uncollectible, whether for $100 or $10,000. But, if you think you can collect a judgment, go ahead and put the clause in your lease.

Another example might be a purchase contract with a seller in foreclosure. Suppose you have an agreement to buy a property from a seller who is near insolvency. If he breaches the agreement, you can sue, but what will you get? On the other hand, if he can convince a court that YOU are in breach, you could lose and end up paying HIS attorney’s fees. Thus, you can see how an attorney’s fee clause may work against you. If you get into a dispute with a seller or buyer and they cannot afford an attorney, you reduce your risk if something goes bad. Remember, whether you are right or wrong in your actions involving a real estate deal, it’s what is proven in court that matters. Having plenty of trial experience, I can tell you that going to court is a gamble – sometimes you win, sometimes you lose, and truth and justice have little to do with it.

Finally, some agreements will state that if one party must enforce the agreement in court (e.g., the landlord in a lease), the landlord is entitled to lawyer fees. Many courts will apply the rules in reverse, even if the agreement doesn’t explicitly state. So, you cannot necessarily limit attorney’s fee if one party wins but not the other.

As with any transaction, you could consult with an attorney before drafting any agreement you are uncertain of.

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Hector Lesende asked:




The Miami real estate rental market is booming. Finding a qualified tenant that will maintain the property in good condition and pay the rent on time is a challenge. Miami-Dade County Housing Authority – Section 8 is an excellent way of finding tenants with most of the rent guaranteed by the US government and timely inspections done yearly. The benefits of renting to Section 8 tenants far outweigh the detriments. The landlord must follow all the procedures, rules and guidelines of the Section 8 process in order to comply with all the requirements.

The Section 8 rental process is as follows:

1. Finding the tenant. Miami-Dade Housing Authority produces a list of available homes for rent in the Miami real estate area. The landlords can be added to the list so that all potential tenants can find available properties for rent. Be advised that Section 8 tenants do not have two months deposit plus the current month rent so you must be flexible.

2. Fill out the voucher. Each tenant has a voucher that must be filled out thoroughly and notarized. Any mistakes in the voucher will delay the process. The application will be rejected and all mistakes must be corrected. The Section 8 rental process begins once the voucher is delivered to the field office.

3. Survey. A property survey is conducted to insure that the rent requested is comparable to the rent charged in the Miami real estate area. The survey is a crucial step in the process. The landlord will receive a call from Miami-Dade Housing in the event the property does not pass the survey. The landlord will get the opportunity to lower the requested rent amount or cancel the contract.

4. Initial Inspection. According to the new guidelines the landlord gets only one chance to pass the initial Section 8 inspection. If the property does not pass the inspection the tenant must get another voucher and start the process again. The inspection consists of the following: no dead bolt locks, no exposed wiring, covered fixtures, weather tight doors, no dead bolt locks, no exposed wiring, covered fixtures, air conditioner must have heater, smoke alarms, electrical panel box, water heater, windows, bedroom must have a closet, windows must have screens, kitchen must have range hood over the stove, bathroom must have ventilator fan, all window bars must have openings, no scaling paint, no trash or junk vehicles in yard, among others.

5. Rent Increase. There is usually a yearly rent increase. The landlord must request the rent increase in writing two months before the lease is due and the re-certification is done. The maximum amount of rent increase is 8% unless a freeze is in effect for that year in the Miami real estate market. The landlord will not receive a rent increase if there are errors filling out the forms, or the forms are filled incorrectly or not turned in on time.

6. Yearly inspections. The property is inspected once a year by Section 8. You will receive a list of items that must be repaired, if any. It is specified if the tenant or the landlord is responsible to do the repairs in the list. You have 30 days to do all repairs and if you fail the second inspection the rent payments are stopped. The payments will resume after all repairs are completed. The payments are not retroactive. The rent will stop permanently if no repairs are made.

7. First Rent Check. The landlord must be prepared to wait for the first check to arrive in the mail. The first check can take up to five months to arrive. Section 8 has tried to speed up the process but has not corrected it yet. After the first check is received and the tenant is in the system all consequent checks are received every third day of the month in a timely manner.

The Miami real estate Section 8 rental process takes about a month to complete and the landlord must be diligent in following up and keeping track of the inspection and the survey process. It is in the landlord’s best interest to follow all the procedures so that the property can be rented quickly in the Miami real estate market. The best thing to do is to go in person to the Section 8 office and find out the status of your property and potential tenant. Don’t assume that everything is fine. Miami Section 8 has an overwhelming number of tenants.

The process of renting to a Section 8 tenant is difficult and time consuming but definitely worth the effort. The tenant is not allowed to move into the property until the survey and inspection are done. Miami Housing Authority will not pay the rent if the tenant is allowed to move in prior to approval and no initial inspections are conducted while the tenant is occupying the property. Section 8 tenants are highly regulated and must confirm to very strict rules and regulations. Renting to Section 8 tenants is a viable alternative in today’s Miami real estate market.