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ATTORNEY's FEE CLAUSE s.sdcpm.com/legalfees

1: SDCPM sets a cap of $1,300 attorney's fee clause in our rental agreements. This means that if landlord or tenant sue the other they cannot demand as part of the lawsuit more than $1,300 of their attorney fees to be paid by the other party .

More information about this is below from our attorney's


2: You cannot charge the tenant for these attorneys' fees.  The only time you can charge a tenant for attorneys' fees is if we actually file a lawsuit, the landlord is the prevailing party, and the judge awards attorneys fees to the landlord.


Jamie Sternberg, Esq. 

April, 2013 

The general rule in California is that each party bears its own attorney’s fees. 

There are exceptions to this general rule. One exception exists when a contract contains an 
attorney’s fee clause. If a contract provides that the prevailing party will recover its attorney’s 
fees and costs, generally that provision is enforceable, assuming that the matter is litigated to 
judgment. 

Landlords who want to recover attorney’s fees from defaulting tenants should ensure that their 
rental agreement or lease contains an attorney’s fee clause. Below is an example of a simple 
attorney’s fee clause. 

In any legal action brought by either party to enforce the terms of this agreement or 
relating to the Premises, whether based in contract or in tort, the prevailing party will be 
entitled to reasonable attorney’s fees, costs, and expenses incurred in connection with 
that action. 

Terminology should be made consistent with the rental agreement or lease. 

California Civil Code §1717(a) makes attorney fee provisions reciprocal. Attorney’s fees will be 
provided to the prevailing party regardless of language limiting the right to one party. This 
means that if the lease contains an attorney’s fee clause, a prevailing tenant will be awarded 
attorney's fees even if the lease only discusses an award of attorney’s fees to the landlord. 

While in theory the rights of the tenant and landlord to recover attorney’s fees are reciprocal and 
balanced, in reality landlords typically have more assets than tenants; an award against a 
landlord is usually far more collectable than an award against a tenant. An attorney’s fee award 
against a landlord is probably fully recoverable, while a large attorney’s fee award against a 
tenant will probably not be fully collectable. Keeping this in mind, some landlords choose not to 
have an attorney provision in their leases. Others impose attorney fee caps designed to prevent 
a tenant’s attorney from recovering large amounts under Civil Code §1717 if a tenant prevails in 
a lawsuit. Determining whether an attorney’s fees cap should be imposed is a risk 
management/business decision that will require an analysis of the types of litigation in which a 
landlord is involved, the likely amount of attorney’s fees awarded in each kind of case, and the 
finances of the parties involved. For example, if a landlord’s tenants are primarily low income, 
and would be unable to pay large attorney fee awards, and 95% of the landlord’s litigation 
matters are unlawful detainer actions, and the attorney’s fees awarded in those range from 0 to 
$2500, but only a very small fraction are more than $700, the landlord may want to cap the fees 
at $700 (or even increase the cap to $1000 to cover increasing attorney fee awards.) 

While an attorney’s fee cap should be considered in all cases, it is particularly important in areas 
where there are defense attorneys available to tenants at no charge to the tenant (such as the
 

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Eviction Defense Center in Oakland, BASTA, Inc. in Los Angeles, and Legal Aid attorneys in 
San Diego funded by the Sargent Shriver Civil Counsel Act, AB 590). 

A landlord that would like to impose a maximum amount of recoverable attorney’s fees can 
change the attorney’s fee provision to read: 

In any legal action brought by either party to enforce the terms of this agreement or 
relating to the Premises, whether based in contract or in tort, the prevailing party will be 
entitled to reasonable attorney’s fees (not to exceed $_____), costs, and expenses 
incurred in connection with that action. 

An attorney’s fee cap will not limit an attorney’s fee award in all cases. It will only limit an 
attorney’s fee award based on the contract awarded under Civil Code §1717. There are several 
other state and federal laws that allow a tenant to recover attorney’s fees against landlords. The 
attorney’s fee cap would not limit an award of attorney’s fees granted under the other statutes. 

Kimball, Tirey & St. John LLP is a full service real estate law firm representing residential and commercial 
property owners and managers. This article is for general information purposes only. Laws may have 
changed since this article was published. Before acting, be sure to receive legal advice from our office. If 
you have questions, please contact your local KTS office. For contact information, please visit our 
website: www.kts-law.com. For past Legal Alerts, Questions & Answers, and Legal Articles, please 
consult the Resource Library section of our website.