Clause in Lease Requiring Payment of Attorney's Fees for Landlord's Court Actions

[WarrantSeeker]

What is the name of your state? Virginia

What's up? Remember me? I have a new question. There is not one, but two clauses in my lease requiring payment of attorneys' fees should an issue go to court. It seems unusual there are two. One is in the original lease language, one is in an amendment. Both say that I must pay the attorneys' fees of either the Landlord (original language) or the property manager (amendment) should I be taken to court. The language does not state that I only have to pay fees if the judge rules for the other party. It seems to state that I have to pay attorneys fees regardless of whether I am successful or not.

Presumably under these terms, I could be taken to court, win my case, and still have to pay the attorneys fees of the others side. In a hypothetical admittedly absurd scenario, the property manager could continuously take me to court every month, lose their case, and still charge me the attorney fees for their losing cases. Is such a term enforceable under Virginia law? I have read that in other states, it is certainly not.

Original Lease
"25. COSTS OF ENFORCEMENT, WAIVER OF EXEMPTIONS, SEVERABILITY, AND
STATUTORY REQUIREMENTS.
A. Tenant shall pay all costs, expenses, fees, and charges incurred by Landlord in enforcing, by legal action
or otherwise, any of the provisions of Lease, including the payment of reasonable attorneys' fees, and
Tenant hereby waives the benefit of any homestead or similar exemption laws with respect to the
obligations of Lease."

Amendment
"22. COURT FEES. In the event that xxxxxx (property manager) must take the tenant to court for unpaid rent, damages or other reason, the tenant
will be responsible for all fees associated with the same. This includes, but is not limited to, attorney fees, any and all filing fees, a $200 fee
for each court appearance, and a $50 trip fee for all appearances and filings. All charges will be added to the tenants account and will be
due and payable immediately."

 

[Taxing Matters]

In general those clauses are going to be interpreted by a court as requiring you to pay those fees if the landlord's enforcement actions are successful.

 

[Zigner]

Agreed - think about it this way, if you win, then there was no "enforcing" of any provision of the lease, and, if you win, then it can be argued that they had no reason to take you to court in the first place.

 

[adjusterjack]

Tenant shall pay all costs, expenses, fees, and charges incurred by Landlord in enforcing, by legal action
or otherwise, any of the provisions of Lease, including the payment of reasonable attorneys' fees,

A Virginia court found a similar clause unconscionable in a "contract of adhesion" (which the lease certainly is) and voided it. Alessia McIntosh v. Flint Hill School (2018).

E:\Users\Lee\Documents\Dropbox (BerlikLaw)\Blog\Opinion.xps (virginiabusinesslitigationlawyer.com)

The Virginia Supreme Court affirmed the decision.

181678.pdf (state.va.us)

Tenant hereby waives the benefit of any homestead or similar exemption laws with respect to the
obligations of Lease."

I believe that provision would also be shot down by a court for similar reasoning.

 

[Zigner]

Nobody wants to use an attorney who can't even comprehend the most basic terms and conditions of a forum.

 

[Bng808]

We won our case and, paid our attorney a retainer and won our case and attorneys fees. However, we now need to collect our judgment and attorneys fees so we are still out of pocket until we are able to collect.

 

[quincy]

We won our case and, paid our attorney a retainer and won our case and attorneys fees. However, we now need to collect our judgment and attorneys fees so we are still out of pocket until we are able to collect.

I believe you have posted to the wrong thread, Bng808. This thread belongs to WarrantSeeker.