Legal Question in Real Estate Law in California

I do not advise you to draft your own lease, and even this particular issue will depend. However, I in L/T leases representing landlord I generally lean towards each party paying their own attorneys fees and legal costs, because too many people tend to feel they are right and that they will win every legal case, and therefore want to test the legal system (who have not been in court too often) especially if they think they will get attorneys' fees paid for, so it may result in more litigation, which I dont think is what you want as a landlord.

Let me know if you need help.

Best,

Daniel Bakondi, Esq.

[email protected]

415-450-0424

The Law Office of Daniel Bakondi, APLC

870 Market Street, Suite 1161

San Francisco CA 94102

http://www.danielbakondi.com

IMPORTANT NOTICE: This communication may contain confidential information, privileged information, or attorney work product. If you are not the intended recipient or received this message in error, any use or distribution of this message is strictly prohibited and unlawful. Please notify the sender immediately, and delete this message. No attorney-client nor confidential relationship is created through this communication. Nothing communicated or provided constitutes legal advice nor a legal opinion unless it so specifies and written agreement for attorney services has been entered into. Attorney licensed in California only. Your issue may be time sensitive and may result in loss of rights if you do not act in time. Thank you.

Pay an attorney to draft your lease. If there's no attorney fee clause then each party would pay their own fees and costs.

I disagree with Mr. Stone on one point. If there is no provision for attorneys fees, then the court isn't going to award attorneys fees. It has to be in the contract (lease) to be awarded. The prevailing party, however, in litigation, is always entitled to recovery of court costs set forth in Code of Civil Procedure section 1033.5.

With a few not relevant exceptions, attorney fees are not awardable unless the underlying contract provides for them. The judge does not have the discretion to award them without the contract allowing for the award. But if the contract gives fees upon being the prevailing party [several legal questions as to what prevailing means], both sides are entitled to fees if they prevail.

Attorneys differ as to whether putting the provision in is a good idea or not. It might scare a tenant, but most tenants are basically judgment proof so the landlord will not collect anything. If the landlord has made a slight mistake [withheld $50 more form the security deposit than should have, the landlord pays the $50 plus a few thousand the tenant's attorney will claim]. Talk to other landlords or property management companies to see what their experiences have been.

Both as an attorney and a former landlord, I recommend against including an attorneys fees clause. As Mr. Roach correctly points out, the prevailing party gets their costs no matter what the contract says, and each side pays their own attorneys fees unless the contract says otherwise. So if the contract is silent, each side pays their own fees and the winner gets their out of pocket costs. I recommend leaving the contract silent. Even if you win you won't likely collect from the tenant, but if the tenant wins they can take your building.

Wow! An abundance of advice. I'll go with Mr. Roach. Another optional clause sometimes appearing in real-estate agreements is an arbitration clause, or a mediation and arbitration clause. The argument against is "Why pay for a judge when the county will provide one for (almost) free?" The counrt-argument is that arbitration is quicker and may avoid related costs for discovery and various motions. I'd say leave it out.