REIMBURSEMENT OF ATTORNEY FEES IN COURT PROCEEDINGS by Peter M. Heintzelman, Esquire (Copyrights 1999 - all rights reserved) How often have you wanted to have an attorney represent you in Housing Court, or in some other forum, in actions involving your tenants, but found it too expensive? Unfortunately, for most landlords, legal fees incurred in pursuing an eviction action, small claims action, or some other form of relief, are most often not recoverable against the offending tenant. For that reason, many landlords take the system on themselves; many do just fine; many regret their decision, find their cases dismissed, and the time delays add to losses, which may have been mitigated had they hired a good lawyer to begin with. Have you taken a look at the body of landlord-tenant laws recently. The laws are repleat with awards to tenants for their attorney fees (meaning the landlord must pay the tenants' legal fees) should a tenant prevail on one or more claims. Examples where the law awards a tenant attorney fees include: security deposit/last month rent law violations, interference with quiet enjoyment claims, consumer protection claims, cross-metering of utility claims, retaliation/reprisal laws, and discrimination laws, just to mention a few. Now look for the laws that award attorney fees to a prevailing landlord - - - it's a short look, because there are basically no statutory right to recover your attorney fees. I presume the historical back-drop to the statutory awards of attorney fees to tenants but not landlords, dates back to the perceived inequities between landlords and tenants, where landlords were seen as having "deep pockets" and tenants were seen as being unable to even afford a lawyer's retainer, and therefore the legislation sought to entice attorneys to represent tenants with little or no money down, in the hopes of being awarded attorney fees to be paid by the landlord, should the tenant, through the efforts of their attorney, prevail on their claims. Quite frankly, its a rare day that a good tenant lawyer can't find some legal technicality to sue a landlord and recover not only the tenants' "damages", but also reimbursement of attorney fees. So, what's a landlord to do? Actually, there IS an answer: Make sure you use a written tenancy agreement that basically provides: "In the event the tenants fail to comply with the terms of this agreement, and the landlord incurs attorney fees to enforce the terms of this agreement, by eviction or otherwise, that the tenant shall be liable to the landlord for reimbursement of the landlord's reasonable attorney's fees." By incorporating such language, or its equivalent, in a tenancy agreement, then indeed should you prevail in an eviction, or most other enforcement actions, you can recover a judgment which will include legal fees. I would note, however, that Massachusetts General Laws, Chapter 186, section 20, provides: "Whenever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorneys' fees and expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease, or that amounts paid by the landlord therefor shall be paid by the tenant as additional rent, there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorneys' fees and expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease, and an agreement that such fees and expenses may be recovered as provided by law in an action commenced against the landlord or by way of counterclaim in any action or summary proceeding commenced by the landlord against the tenant. Any waiver of this section shall be void as against public policy." Guess who wrote that statute: bet is wasn't a property owner's association! So, as much as this statute, then, may subject a landlord to having to pay legal fees should you not prevail in court, more likely than not, a landlord not prevailing in court will be as a result of the landlord's violation of one or more of the laws referenced above that already award a tenant reimbursement of legal fees anyway! So, my thought is, might as well add to your tenancy agreement the right to recover legal fees anyway. Of course, your ability to have an offending tenant actually reimburse you for your incurred legal fees is as likely as getting a tenant to reimburse you for lost rents or property damages; many of you have experienced the difficulties of collecting monies from court-perceived "judgment proof" tenants. However, recovery of attorney fees are, if nothing more, another landlord bargaining chip at the mediation table, which can assist in getting "better deals" in mediation. And finally, I think a number of your fellow landlords would agree that, whether you obtain reimbursement from the tenant for your legal fees or not, there are many instances where its wise for a landlord to hire an attorney, and incur those expenses, in order to increase the likelihood of success and minimize exposure to tenant's claims, and in the long run, minimize your total losses. |
