Landlord is billing legal fees without any court proceeding

[Radically_Furrowed]

I'm a renter in Clackamas County, Oregon and I'm looking for some advice regarding the billing of legal costs and attorney's fees by my landlord and what I am legally obligated to pay. My rental agreement also has a Guarantee signed by a relative, and I'm hoping for some clarity regarding their obligations as well.

Context:
My landlord has been threatening to evict me for 11 weeks now and it appears that they have not filed any complaint as I have not been served with any court summons and there does not appear to be any pending litigation under my name in this state. They say that I/my guarantor owe them for all legal fees currently being incurred and they told my Guarantor they filed an eviction on February 1st.

What the lease says:
There is a prevailing party clause in my agreement that says “ In the event Owner/Agent has to bring an action to enforce any provisions of this Rental Agreement or the Oregon Residential Landlord and Tenant Act, the prevailing party shall be entitled to, in addition to costs, reasonable attorney's fees at trial and upon any appeal”.

What the Guarantee Agreement says:
Their “legal fee” clause is remarkably different from the clause in the tenant agreement and states, “Guarantor agrees to pay all costs and attorney's fees incurred by Owner/Agent in enforcing the Rental Agreement and/or this Agreement, at trial and on any appeal.”


What I'm trying to figure out is what is the enforceability of these clauses for both myself and my guarantor, and what is the scope or limitation, if any, to what the landlord is entitled to in regards to any legal action (including any pre-trial legal work). Primarily, what constitutes “all costs and attorney's fees” and under what circumstances are they actually owed? Must they necessarily be awarded by a court as the result of some legal action, or can the landlord legally assess the costs of merely consulting an attorney? In the event that a complaint is ever actually filed, is the landlord entitled to these costs and fees even if we settle prior to trial? Can the landlord be awarded these costs in a FED that’s uncontested?

And finally, what’s with the differences in the clauses between tenant and guarantor, specifically, why does the guarantor’s clause exclude the usage of the words “prevailing party” and how are the consequences different for the guarantor than for the tenant in the agreement? The implication here, from my rudimentary interpretation, is that the guarantor is responsible for all legal expenses regardless of the outcome of any legal trial– so in the event that I am the prevailing party or we settle, or maybe one of us prevails by default– it doesn’t matter, and landlord gets costs reimbursed from guarantor in all cases. If I am correct– is this really legally enforceable under current Oregon state law? Am I reading way too far into this?

Thanks, I appreciate you all taking the time to assist me on this and I apologize for the number of questions… If you can believe it, this version has actually been edited for brevity.

 

[Zigner]

You need an attorney to review and advise you on the contract(s). Such review goes beyond the scope of an internet forum.

 

[adjusterjack]

I have no problem with providing general information about contract law subject to the recipient's verification by an attorney.

But let's start with this:

My landlord has been threatening to evict me for 11 weeks now

Why?

Some background please.

The reason I ask is to determine whether there is a statute that allows for attorney fees in a particular cause of action.

 

[Zigner]

I have no problem with providing general information about contract law subject to the recipient's verification by an attorney.

But let's start with this:

Fair enough.
The OP was asking specific questions about specific terms of the contract(s), and that is why I responded the way I did. I agree that providing general info is a good thing

 

[Radically_Furrowed]

I have no problem with providing general information about contract law subject to the recipient's verification by an attorney.
But let's start with this:
Why?
Some background please.
The reason I ask is to determine whether there is a statute that allows for attorney fees in a particular cause of action.

Thank you for your response. I'd be happy to provide further details.


The reason for the dispute:

The cause of the potential eviction would be for nonpayment of rent. I suddenly developed a serious illness last year and lost my source of income as a result. I haven't been able to pay rent since November 2023, the last month paid in full. I received a notice to cure the lease violation on December 8th, with a termination of the rental agreement dated for January 12th, 2024. My landlord notified my guarantor on February 1st that they would be filing for eviction that day, and that legal fees would now be owed moving forward. And that's the last I heard of it. I have not received any posted or mailed summons, calls or emails. I've been checking my state's court calendar system almost daily and have checked with my county court clerk just in case they've forgotten to serve me, but there is no pending civil case with myself as the named defendant.


My intended response to a potential FED:

I have no intention of contesting the FED-- I know I owe the rent, and I want to attempt to work out a payment plan with my landlord at the first hearing. The reason for this is that I have already attempted to communicate with the property manager and it didn't go well– I was given the run around and told that her superior would get back to me, and subsequent follow-ups were ignored. I’m hoping that the ambiance provided by the eviction court environment might allow for better mediation between myself and the landlord.

At this point I am trying to mitigate my damages as best as possible while also balancing the fact that I currently don’t have anywhere to live and it’s the middle of winter. I don’t intend to foolishly fight my landlord in court and end up with an eviction on my record. I want to try to come to an agreement with them to spare my guarantor from being burdened with this debt. I also want to spare us both from paying court costs and attorneys fees unnecessarily—I just want to be fully informed of the consequences to the decisions I make in these coming days, and this is why I’m attempting to navigate this complicated legal landscape.


What I’m hoping to accomplish in this forum:

I’m hoping to at least get a grasp on what Oregon State Law may allow or prohibit in terms of attorney’s fees and court costs when a lease is breached, since I understand that rental agreements can often contain illegal or misleading clauses in them that aren’t always enforceable. According to my guarantor, my landlord is using language that indicates that my rental debt is incurring these legal costs as we speak, despite no court action having been filed. I cannot explain my landlord’s hesitation to evict me, nor can I understand what is meant by the incurring of legal costs in my case, as I have always presumed that legal fees were awarded by a court as a result of a verdict in favor of a prevailing party.

I can’t tell if what I should be gathering is that I owe my landlord for all legal costs the moment they solicit any kind of legal services whatsoever (as a result of my breach of contract) regardless of their decision to move forward with eviction or not, and regardless of whether they prevail in court or not (or any of the other varying outcomes of a FED or civil lawsuit for damages). OR if what I should be gathering is that my landlord is being presumptuous (and rightly so) and assuming that they will prevail at trial and I will in fact owe them legal costs as they will be awarded when I lose my case.. But I’m still left with questions regarding who picks up the “court costs bill” in the event that we reach a stipulated agreement, settle prior to trial, or a default judgment is entered. And I’m left with a dozen other questions when I assess my guarantor's obligation since it appears they may be even worse off without the terms “prevailing party” included in their clause… but I always understood guarantee agreements to be co-extensive, and assumed that the rights, responsibilities, and consequences for us both would be the same (excepting any guarantor’s right to possession).

I’ve been told that I tend to over explain things, so I hope that this has actually provided you with enough detail to allow you to assist me and that you do not find yourself drooling over your keyboard on account of my redundancy!

Thank you all again, for taking the time to read this. I look forward to your response.

 

[Zigner]

So, what you want us to do is to assist you in squatting. Some here may do that for you, but I won't.

 

[Taxing Matters]

What I'm trying to figure out is what is the enforceability of these clauses for both myself and my guarantor, and what is the scope or limitation, if any, to what the landlord is entitled to in regards to any legal action (including any pre-trial legal work).

Attorney fee provisions in leases are very common. While the two clauses are written differently, at their core appears to be the same requirement: the tenant pays all attorney's fees and costs incurred in connection with an eviction proceeding. In my state that would include the costs to the landlord in sending the notices that are required by state law before the eviction action may be filed in court. As I've not read your entire lease, don't know all the details of your dealings with the landlord, and am not familiar with Oregon's landlord tenant laws, I can't tell you if those paragraphs will be interpreted the same way by the Oregon courts.

But if Oregon is like my state and a number of others, those kinds of clauses allow the landlord to recover costs for anything that the landlord spends in connection with evicting the tenant, including some of the things required before the formal eviction action is filed in court. So as you know the landlord is setting up to evict you, it is likely the longer you stay the more you'll end up owing the landlord in back rent, attorney's fees and other costs, and any costs for the eviction (e.g. hiring a crew to enter the place and remove any belongings inside, paying the sheriff or other law enforcement officer to be on hand for any trouble that may interfere with the eviction, etc). The west coast states of CA, OR, and WA are more liberal than most of the country, so there may be more protection for you than what other states have.

Note that once the landlord files the action in court to evict you from the premises that is a public record and information services regularly get court records to put in their databases. Databases that serve leasing businesses typically will pick up those filings, not just the judgment information. That means even if you settle with the landlord after the eviction court proceeding starts but before the actual eviction order is entered you may have already have made finding a new place to rent even harder than it already is as landlords are wary of accepting tenants that have any history of eviction proceedings, even if the matter was subsequently settled. Some may persuaded to rent to you with a sizeable rent deposit and/or a guarantor who will actually pay when demand is made to collect. Others just flat out won't rent to people who have that kind of history. I suggest you seek out help from organizations that advocate for and help tenants in this kind of situation or an attorney who helps tenants in eviction actions, and do it sooner rather than later to make sure that your plan of action won't end up being more damaging than it needs to be. A letter from an attorney or the tenant aid organization may get a response from the landlord that would allow you to try settling it before any court filing is made.

 

[adjusterjack]

I want to try to come to an agreement with them to spare my guarantor from being burdened with this debt.

Your guarantor was already "burdened" with this debt the moment he/she signed the lease as guarantor. The guarantor, presumably, has the money with which to pay your rent and, frankly, should have picked up the slack in December when you couldn't pay.

I’m hoping to at least get a grasp on what Oregon State Law may allow or prohibit in terms of attorney’s fees and court costs

Good news. Oregon has a statute devoted to attorney fees that you can read at:

ORS Chapter 20 – Attorney Fees (public.law)

Study it carefully and you will find the sections that apply to you.

As for costs, in a landlord tenant dispute, they generally involve filing and process service fees, maybe a couple of hundred bucks, though there may be other compensable costs (cannot predict) that a plaintiff (or a defendant) may incur during litigation.

I cannot explain my landlord’s hesitation to evict me

Neither can I. Were I your landlord (I was one for 20 years) I would have filed for eviction on January 13, the day after the termination deadline. I don't know, maybe your landlord wants to build up a few months unpaid rent to make the litigation worthwhile. Not something I would do but, then, I don't know the rental market up there in the frozen north where it might be impossible to find new tenants during the winter. Just speculating.

I always understood guarantee agreements to be co-extensive, and assumed that the rights, responsibilities, and consequences for us both would be the same (excepting any guarantor’s right to possession).

Not true. First the landlord gets a judgment against you and your guarantor. Then, if you don't pay the judgment immediately (which is usually the end of the appeal period) he can choose to ignore you and go directly after your guarantor who (again, presumably) has more to lose than you do by way of credit score, income and assets that can be attached to pay the judgment. The whole idea behind requiring a guarantor on a lease is that the guarantor has deeper pockets than the tenant and is more vulnerable to the consequences of litigation than you are.

I want to attempt to work out a payment plan with my landlord

Forgive my bluntness here but you are being naive. You have no leverage. You already had a payment plan. It was to pay your rent every month. You reneged. Doesn't matter why. You have a guarantor who agreed to pay the rent for you if you couldn't. He/she also apparently reneged or he/she would have just paid the rent for you which is what he/she signed up for.

Why would I (imaginary landlord) trust you to make payments on a new agreement that would likely get me considerably less money every month when I could be renting the property to somebody else who can pay the full rent. Here I am, three months without getting paid. Maybe I have mortgage payments that nobody is cutting me any slack on, maybe I rely on the rental income to meet my family's expenses, maybe I just toss the money into my retirement fund. Doesn't matter. It's money I'm entitled to that I am not getting while you are comfortably ensconced in my house with my roof over your head that isn't costing you a dime.

When the landlord files for eviction, you are almost guaranteed to be evicted and put out of the dwelling. That's going to happen whether you risk a judgment for 3 months rent with attorney fees or a judgment for 3 months rent without attorney fees. It's very bad either way, as TM alludes to.

My advice to you is to get your guarantor to pony up the cash to bring the rent arrears current and keep on paying the rent until you become able to.

Otherwise your situation will not end well for you or your guarantor.

 

[Taxing Matters]

As for costs, in a landlord tenant dispute, they generally involve filing and process service fees, maybe a couple of hundred bucks, though there may be other compensable costs (cannot predict) that a plaintiff (or a defendant) may incur during litigation.

The term "costs" in the statute is not the same thing as the costs defined by the contract. As the contract provides attorney's and other costs related to eviction, I can anticipate the OP will end up owing a lot more than that.

Not something I would do but, then, I don't know the rental market up there in the frozen north where it might be impossible to find new tenants during the winter.

Hardly the "frozen north". I used to live in Oregon, and Clackamas county adjacent to the south side of Multnomah county, which is where Portand is located. I would characterize it as the "wet and chilly northwest coast".

 

[adjusterjack]

Hardly the "frozen north". I used to live in Oregon, and Clackamas county adjacent to the south side of Multnomah county, which is where Portand is located. I would characterize it as the "wet and chilly northwest coast".

Phoenix was in the mid 70s today. Comparatively speaking, Oregon is glaciated. LOL.

 

[Taxing Matters]

Phoenix was in the mid 70s today. Comparatively speaking, Oregon is glaciated. LOL.

I once had go to Phoenix in August for a conference (the hotel rates were much lower than in winter) and that's the closest I've ever been to what the heat of hell must be like. Apparently the extensive use of A/C in Phoenix has caused temperatures there to rise. I was glad for it, though. We ran from one air conditioned place to another, staying outside as little as possible, until after the sun went down.