Landlords and their attorney’s should be careful when they withdraw actions against tenants.
In Figueroa v. FAH Redstone Ltd. Partnership, 2007 WL 4633547 (2007) (Peck, J.), the Court awarded attorney’s fees to tenants when a landlord withdrew an eviction action against the defendant tenants. The lease between the landlord and tenants provided for attorney’s fees and costs if the landlord prevailed in a summary process action against the tenants. By statute, if a lease provides that a landlord can collect attorney’s fees if a landlord prevails in an eviction, a tenant can recover against a landlord if a tenant prevails in a summary process action.
Judge Peck in Figueroa found that the withdrawl of the action by the plaintiff landlord made the defendant tenants prevailing parties and thus awarded the tenants attorney’s fees.
I think this is ruling will discourage plaintiff landlords from withdrawing actions against tenants for fear of tenants being awarded attorney’s fees. Often, it is important for a tenant not to have a judgment against them in a summary process proceeding because it may impair their ability to rent another apartment. Sometimes, as part of an agreement to vacate, a landlord will agree to withdrawing the action to avoid judgment against the tenant which is generally a win-win situation for both the landlord and tenant.
I know that I’ll think twice the next time I advise a landlord to withdraw an action against a tenant.