Attorney Fees and Unlawful Detainer / Eviction Actions

Updated on 5/24/24

Landlords are always asking questions regarding who pays legal fees for eviction after successfully evicting a tenant. The quick answer? It depends.

In California eviction cases, the responsibility for attorney fees can depend on several factors, primarily the lease agreement and the outcome of the case. We’ll go over a few key components about how to determine who pays legal fees for evictions.

Lease Agreement Provisions

Many residential and commercial leases include a clause stating that the prevailing party in a legal dispute, such as an eviction case, is entitled to recover attorney fees. This means that if the lease includes such a provision, the losing party (either the landlord or the tenant) would typically be responsible for the prevailing party’s attorney fees.

First, the court 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 meaning it can be awarded to either party, then the court will not enforce it.

That brings us to the question as to what happens in a situation where the rental agreement does not limit the amount of legal costs in an action based on the rental agreement such as an eviction case.

Related: Pros and Cons of Hiring Professional Landlord Eviction Services to Deal with Your Tenant

What If My Rental Agreement Doesn’t Have Legal Fees Clause?

An unlimited attorney fee provision in a rental agreement exposes both parties to an award of reasonable legal costs that is left to the court to decide. Many tenant defense attorneys love unlimited attorney fee provisions because they can push the case to a jury trial believing that the landlord has deep pockets to pay for an attorney fee award while realizing that the tenant(s) will probably not have the funds to pay for any attorney fee awarded to the landlord.

For defendants, it is a win-win situation for the likes of BASTA, Eviction Defense Network and the other Eviction Defense Attorneys.

That is why it is always recommended that that the rental agreement limits the amount of legal expenses to a fairly low amount like $500 to $1,000.

If your current rental agreement contains an attorney fee provision that is unlimited it is suggested that the provision be modified by serving a 30 to 60 Day Notice of Change of Terms of Tenancy limiting the legal costs provision to $500.00 to $1,000.00.

However, that is not the last word in attorney fees in Unlawful Detainer litigation.

Legal Fees for Eviction Statutory Provisions

As stated above, legal costs in an Unlawful Detainer action can be awarded pursuant to the terms of the rental agreement or by statute – such as Civil Code Section 1942 commonly referred to the breach of the warranty of habitability.

If a tenant files an answer that raises the breach of warranty of habitability defense and prevails on that defense the court can award attorney fees to the tenant pursuant to the statute.

This can be very troublesome in the City of Los Angeles where the judges are very tenant friendly and routinely issue a conditional judgment in favor of the tenant because the rental property was uninhabitable.

The eviction defense industry uses the statutory provisions that awards attorney fees to the prevailing party – where the court finds the breach of the warranty of habitability – as a sword and will request thousands of dollars in attorney fees in a motion for the award of attorney fees in these types of situations

Related: Is Your Rental Property Considered Uninhabitable?

In other cases, California statutes may dictate the award of legal fees for eviction. For example, California Code of Civil Procedure Section 1174.2 allows for the recovery of attorney fees in certain circumstances involving habitability defenses raised by tenants in eviction cases.

Court Discretion

In some situations, the court has discretion to award attorney fees even if they are not explicitly provided for in the lease or statute. This can occur in cases involving bad faith or other equitable considerations.

All landlords should take preventative measures, such as serving a 24 Hour Notice of Entry to the rental unit at least every six months, to inspect the rental unit for needed repairs and should also have a history showing timely responses to any work orders, to prevent claims such as the breach of the warranty of habitability.

Related: Why are Routine Landlord Rental Property Inspections Necessary

It’s equally as important for landlords to review their lease agreements once a year with a specialized attorney to make sure the rental agreement covers situations where you have to consider who pays for legal fees after an eviction.