Dear Sam: My landlord is threatening to evict me from my apartment and says that if he does take me to court, I will also be responsible for his legal fees. Is this true? How much might they be? And what happens if I win?
Your landlord's not just being greedy here, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations. "Most leases have a clause that says that if a landlord has to bring a court case about you and they win, you'll have to pay their legal fees," he tells us. "This is in almost every residential lease."
But this doesn't mean vindictive landlords will just drag you to court willy nilly, confident in the knowledge that you'll be stuck with the bill. "New York has a wonderful law that says that any time a lease allows for a landlord to collect fees, the court has to award it bilaterally," he says. "This means that if the tenant wins, then the landlord has to pay their legal fees. This gives tenants a very powerful weapon in defending cases brought by landlords."
While this is a big boon for tenants, in practice, things can get complicated. "To be awarded the fees, you have to be the prevailing party," says Himmelstein, "and it isn't always easy to figure out who wins." While something like an eviction case is straightforward—either you get to stay in the apartment or you don't—things aren't always so simple. "What happens in a non-payment case where you owe six months worth of rent, but your defense is that the apartment is in horrible condition," he asks. "The judge awards you a 50 percent abatement of your rent. Who won? The landlord, because they collect half the rent, or the tenant, because they didn't have to pay half?"
In most cases, awards are based on what each party was seeking, what they achieved, and if the amount of fees incurred were reasonable given the result, he notes. Bottom line: expect the legal fees to become their own point of contention if you and your landlord wind up in court. "In settlements, the issue of attorney's fees is often a question of negotiation," he adds.
If you do end up winning back the cost of your legal representation, the court will rule that you'll be awarded "reasonable" fees. "They have the right to cut it down if they feel yours were excessive, or to increase them if they feel the attorney could have charged you more," says Himmelstein. Even if you're represented for free by legal services or legal aid, your attorney will be reimbursed for their work—but you won't personally get a cut of that cash.
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Sam Himmelstein, Esq., represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts and many other issues. He is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.