Wednesday, June 19, 2019

Are attorneys' fees still available to a residential landlord in an eviction proceeding?

On June 14, 2019, rental laws throughout the state were changed forever. We will be updating our network in the weeks ahead of those changes. In the interim, we pose the question - Are attorneys' fees still available to a residential landlord in an eviction proceeding?

Sometimes when lots of laws get changed all at once there emerge errors in draftsmanship, which create litigation events to clarify the meaning of the laws. When it comes to attorneys' fees for a landlord, a conflict has emerged in the language of the new laws.

On the one hand, new RPL §702 states: Rent in a residential dwelling. In a proceeding relating to a residential dwelling or housing accommodation, the term "rent" shall mean the monthly or weekly amount charged in consideration for the use and occupation of a dwelling pursuant to a written or oral rental agreement. No fees, charges or penalties other than rent may be sought in a summary proceeding pursuant to this article, notwithstanding any language to the contrary in any lease or rental agreement.

On the other hand, amended RPL §234 states, in new language, that "[a] landlord may not recover attorneys' fees upon a default judgment." 

As such, RPL §234 implicitly recognizes the availability of attorneys' fee for a litigated summary proceeding. However, RPL §702 provides that no fees may be sought except for rent. Attorneys' fees are by their very nature a fee and hence the conflict. 

Ironically, the limitation on landlords' ability to recover attorneys' fees in a default judgment may be the basis that there ability to recover attorneys' fee in a litigated matter remains after the amended laws. However, only a Judge can decide this one and we will watch to see how the courts resolve the issue.




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