Eviction with Damages – Count II

Most landlords have heard of a Count II eviction, but many are not sure what it means or why they would want to file such an eviction. The standard eviction typically only sets forth one count in the eviction complaint filed with the Clerk of the Courts, which is basically asking the courts to award possession of the rented property, back to the landlord. This essentially evicts the tenant while only allowing for the courts to award a small amount of money to the landlord for costs associated with the eviction filing. If a landlord wants to obtain a judgment against a tenant for money that is owed along with possession of their property, the law requires that the landlord must file not only the request for eviction, but also a second count (or Count II), which requests an award of money damages against the tenant. Most of the time such a judgment of money by the courts consists of late fees and back rent.

Now while it might sound like a Count II eviction is the way to go because the landlord wants possession of their property and they want to recover back rent owed to them, there are few things that must be considered. The first thing is timing. If a landlord owns a property in Daytona or Ormond Beach (Volusia County) a tenant has 5 days to respond to a standard complaint for eviction that is filed. If the landlord desires to include the second count in their filing, and seek a judgment for back rent, the tenant is allowed another 15 days to respond, totaling a 20 day waiting period, compared to the 5 days if no money damages are sought through the Count II filing. So if a standard eviction filing for possession takes around 30 days, seeking back rent through a Count II can bring the time to 45 days. That is an extra two weeks that the landlord will be out rent from a new rent-paying tenant.

The second thing to consider when deciding if a Count II eviction should be filed is if the tenant being evicted has any assets which the landlord can collect on a judgment the court awards. A landlord can obtain a judgment for 3 months of back rent totaling $3,000.00, but if the tenant has no assets, the landlord only has judgment that cannot be collected on. Most attorneys also charge a higher rate for a Count II eviction, and together with the extra 15 days that no rent would be received, a Count II can wind up costing more money than it is worth. The amount of damages sought in the Count II claim should play a factor in the decision to file a Count II (several thousands of dollars versus a thousand or less) as well as the amount of time that the tenant stays in the leased property, allowing the property to not only continue to not generate revenue, but also possibly allowing the tenant more time to inflict damages on the property. There is also the amount of stress involved, and many times, a landlord would rather get the tenant out sooner than have to deal with them for another 15 days.

At the end of the day, the a landlord must consider several issues as to whether or not to pursue a money judgment against their current tenant, or just to file a standard eviction and obtain possession of their property as soon as possible. Most decisions are on a case by case basis, but a landlord should always weight the positives and negatives and make a decision that is in their best interest, legally, financially and mentally.

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