In the world of landlord-tenant law, issues surrounding an award of attorney fees are often found to be a “proceeding within a proceeding” and the ability of either party engaged in such litigation to recoup its attorney fees often looms large in the context of the more substantial and complex landlord-tenant summary proceedings. In some cases, the attorney fees expended by both sides often times equals, if not dwarfs, the amount in dispute. Thus, the ability to recover, or in some instances the necessity to reimburse, attorney fees is, and must always remain, front and center in the minds of the parties embroiled in the fray of costly litigation.
Courts’ Discretionary Power
First, the preliminaries. Most practitioners are fully familiar with the “American Rule” which precludes a prevailing party from recouping its legal fees from the losing party except where authorized by a statute, agreement or court rule.1 In the landlord-tenant arena, attorney fees are frequently in play because the great majority of such cases involve leases between the parties which typically include some type of clause generally allowing the landlord to recover attorney fees in the event of default by the tenant.
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