You have successfully evicted a recalcitrant tenant. Can you now hold the tenant responsible for attorneys’ fees incurred in prosecuting the eviction lawsuit?

The path to answering this question always begins with a review of your lease or rental agreement with the tenant. Many agreements provide for an award of attorneys’ fees to the prevailing party in the lawsuit. If there is such a provision, its terms and conditions will control the analysis.

Before enforcing a contractual provision addressing attorneys’ fees, courts typically will look to the rental contract to determine if the attorney fee provision is a two-way street giving either the landlord or the tenant the right to collect legal expenses if they are the prevailing party in an Unlawful Detainer case. If the provision is not reciprocal, then the court normally will not enforce it.

Attorneys’ fees can also be awarded pursuant to a statute authorizing such an award. For example, Civil Code Section 1942 permits an award of attorneys’ fees in favor of a tenant where he raises breach of the warranty of habitability in his answer and prevails on that issue at trial.

If there is no contractual or statutory basis for an attorney fee award, the “American Rule” would normally apply, which states that each party to a lawsuit must ordinarily pay his own lawyer.

Lynx Legal Service is here to answer any questions regarding the above issues, or any other questions you may have on evictions. Please feel free to contact us at 888-441-2355 or [email protected] with any questions or if you would like to start a case.