Awarding Attorney Fees in Housing and Landlord Cases

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Housing and landlord-tenant disputes often revolve around the nonpayment of rent or a rent increase.  However, housing lawsuits can also allege discrimination based on race, gender, national origin, color, age, religion, sex, or disability.  For example, in a recent case, a tenant brought an action against her landlord over a pet chihuahua remaining in her apartment to treat her mental illness (a disability). 

There are federal and state statutes in place to protect the rights of tenants, including the Fair Housing Act (FHA), the Fair Housing Amendments Act of 1988 (FHAA), the Housing for Older Persons Act, and others.  The Department of Urban Development (HUD) and the Office of Fair Housing and Equal Opportunity (FHEO) are in charge of administering the FHA.  This housing legislation includes “fee shifting” provisions, allowing the recovery of reasonable attorneys’ fees by the winner. 

Under U.S. law, the losing party is generally not required to pay the winning party’s legal fees.  This is because the law tries to allow most people to sue without fear of huge legal payments if they lose.  However, the law allows recovery of legal fees when the other side has been vexatious, malicious, willful, reckless, or has otherwise acted reprehensibly and without excuse. 

Landlords have a duty to adhere to FHAA requirements and those of other statutes.  If they do not, then their acts are a wrong against the public.  Such acts are punishable with extra “punitive” damages and with the payment of the other side’s attorneys’ fees.  The amount of fees depends on: the work, time, and reputation of the attorney, the difficulty of the case, and typical fees for housing discrimination cases. 

A tenant must be careful, however.  Attorneys’ fees will only be awarded to the “prevailing party,” i.e., where there has been a final judgment.  Also, the landlord may recover legal fees if it wins.  In the chihuahua case above, the mentally-disabled tenant had to pay the landlord’s legal fees, because the tenant failed to prove that the loveable pooch, named Biker, was necessary for the treatment of her disability. 

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Last Modified: 06-28-2013 03:15 PM PDT

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