Clients often ask me if they will be able to recover attorney fees from a tenant who lost the eviction case. My answer is almost always the same: we can request costs and attorney fees in an eviction unlawful detainer case, and the landlord may even receive a judgment that includes the costs and attorney fees, but collecting this money form the tenant is another issue entirely.
The landlord and tenant often include language in the rental agreement that says the prevailing party will be entitled to costs and attorney fees. Some rental agreements are one-sided and only says that the landlord is entitled to recover costs and attorney fees. These one-sided provisions are normally interpreted by the court to award attorney fees to the prevailing party.
When the rental agreement does not include a provision discussing the recovery of attorney fees in the eviction case, there is no law that says attorney fees will be awarded, except in narrow circumstances. The tenant may receive attorney fees if the landlord initiated the unlawful detainer eviction case based on non-payment of rent, and it is determined that the landlord violated the warranty of habitability. The tenant may also receive attorney fees if the tenant prevails on a retaliatory eviction defense, or if the landlord unlawfully terminated the utilities, and in other select circumstances.
For purposes of awarding attorney fees in an unlawful detainer eviction, the prevailing party is usually the party that recovers the most out of the case. The court may in fact determine that neither party is the prevailing party for purposes of awarding attorney fees.
If the landlord dismisses a case voluntarily, there is generally no prevailing party.
Read Attorney Piotrowski’s “Landlord Best Practices and Eviction Overview” book.
The Law Office of David Piotrowski represents landlords throughout southern California and can assist with a tenant eviction.
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