Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
‘I am a landlord. I offered a tenant a partial refund (33%) of their security deposit, due to numerous violations. He refused it and said either a full refund or he would take me to court. I sent him the partial payment check for $200 anyway and he returned it. Now he is suing me in small claims court. What if he is awarded $200 by the judge? I could then be made to pay the $200, plus court costs and his attorney fees, which is ridiculous when I wanted to pay him $200 in the first place. Or, would the judge take into consideration that he refused my offer? I have proof he refused my check and I can substantiate the deductions. What if the judge awarded him more than $200?’Unfortunately, it depends. In many jurisdictions, settlement offers are specifically excluded from being entered as evidence at trial (this rule is an effort to promote settlement by letting people know they won’t be punished later if they make an offer to settle). So technically, the judge may not take any evidence of your offer to pay.
Question: However, technicalities like that are often overlooked in small claims court. Further, if you make it clear that you have attempted to return the $200-even so far as having it available in your hand at the time of trial-it should be clear that only the remainder of the security deposit is what is in dispute. In theory, at least, your ex-tenant should not be the “prevailing party” entitled to attorney fees unless he recovers more than that.
Answer:
As a practical matter, your best defense against this risk (short of coming to a settlement with the ex-tenant before trial) is to make your position clear to the judge.
