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Tenant is not obligated to pay attorney's fee

July 05, 2009|Martin Eichner

Question: I was recently laid off and found myself late on my rent. My property manager served me with a three-day notice to pay rent or quit. I obtained a loan from a friend and paid the rent and the late fee, which I know was proper.

However, now I have received an invoice from the owner's attorney for the time the attorney spent to draft and send the three-day notice.

Do I have to pay the attorney's fee?

Answer: The first step in answering this question is to look at your rental agreement. Most rental agreements have an attorney's fees clause that states that if a lawsuit is filed, the prevailing party can recover its attorney's fees. If your agreement doesn't have an attorney's fees clause, you clearly don't have to pay the invoice.

Even if your agreement does have such a clause, it applies only when there has been a formal lawsuit, such as an unlawful-detainer eviction case.

If a lawsuit is filed, the duty to pay the attorney's fee of the other party applies only if a judge issues an attorney-fee award as part of the judgment or settlement.

Because the only action taken was to prepare and serve a notice to pay rent, and because you brought the rent current without a legal action being filed, there is no basis to demand you pay an attorney's fee.

-- Martin Eichner, Project Sentinel

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Eichner is director of Housing Counseling Programs for the Sunnyvale, Calif.-based mediation service. To submit a question, go to www.housing.org.

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