I own a house with relatives who won't sell willingly, despite several good offers. Their reasons are personal, not business. I must sue for partition, but first I need to hire an attorney. If successful, I know I can recover the retainer cost at closing - after the lawsuit and sale is completed. But... if my family decides to sell/settle without a formal hearing, can I recover the attorney's retainer I fronted? How?
Not to sound glib, but this would be a good question to ask an attorney in a consultation before you put down the retainer. According to your facts, it will take a partition suit before there is even talk of a sale or settlement.
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Real Estate Attorney
Your attorney is entitled to be paid for the work that he or she does. Who pays for the attorney's fees and whether you should be reimbursed for money that you spend is something that should be included in any settlement agreement. If your relative retain their own lawyer, it is unlikely that they will want to pay your attorney fees in a settlement of the partition action.
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As a general rule, there is no fee shifting in cases - that means you must pay your own unless a statute or court rule provides that the loser must pay. Fee shifting typically occurs in consumer protection and intentional tort cases. I am not a FL attorney, but I would be very surprised if your statute or rules pertaining to partition actions permitted fee shifting.
Whether or not you get all or part of your retainer back will depend on the terms of the contract that you agree to with your attorney. It is unlikely that an attorney would take a partition action on a contingency (and it may not be permitted) - so you would likely be an hourly billing basis. As a general rule, you would get the return of any unearned portion of the retainer if the matter settles early.
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