Under New York law, attorney’s fees cannot be collected by a prevailing party unless they are authorized by an agreement between the parties or by statute. Residential leases—invariably drafted by the landlord—frequently contain a provision for the tenant to pay the landlord’s attorney’s fees. Of course, a corollary provision allowing the tenant to collect attorney’s fees from the landlord is not a part of most residential leases.

Real Property Law (RPL) §234 was enacted to address that imbalance resulting from an inequality of bargaining power and to achieve parity between residential tenants and landlords. It provides in relevant part that:

Whenever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorneys’ fees and/or expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease, or that amounts paid by the landlord therefor shall be paid by the tenant as additional rent, there shall be implied in such a lease a covenant by the landlord to pay to the tenant the reasonable attorneys’ fees and/or expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease. (Emphasis added).

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