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By Gary Rhoades

Naomi sends out a group text message asking if friends are free to help her and her wife Emily to move this coming weekend. 

“Bonus friend points for babysitting Erin,” chimes in Emily. Erin is their newly adopted three-month-old daughter.

“Giving up your sweet Santa Monica pad??!” texts back their friend Brad. Naomi and Emily have lived happily in their large, one-bedroom near downtown Santa Monica and the beach for five years. 

“Not our choice,” replies Naomi. “Our landlord just gave us notice that he doesn’t allow kids in one-bedrooms. : ( “

“Hold on there,” texts Beth, an attorney. “That’s a civil rights violation.”

“You oughta sue the jerk,” adds Peter.

“He’s a smart jerk though,” responds Emily. “He already sent us an official “change-of-lease-terms” notice 2 months ago that says we have to pay our own attorney fees for ANY legal dispute.”

“So staying here is a civil right we just can’t afford to fight for.”

A flood of sympathy texts are exchanged among the friends, and their moving plans are put on hold until Beth can double-check the legality of the owner’s actions with the Santa Monica City Attorney’s Office.

Can a landlord in Santa Monica unilaterally change a rental lease to avoid paying attorney fees when they lose a civil rights case?

The short answer is no. Normally, parties must bear their own attorney fees. But in a civil rights case, attorney fees are paid by the losing defendant. This exception applies in many federal and state anti-discrimination laws as well as Santa Monica’s own ordinances that prohibit housing discrimination and tenant harassment.

The public policy behind these laws is to encourage cases that are in the public interest, especially for those who cannot afford to hire attorneys. Returning to the hypothetical, if Naomi and Emily sue their landlord and win the right to keep the apartment — which they should since their landlord’s occupancy limit violates the fair housing laws — the court should void the owner’s attempt to change the lease and then order him to pay the tenants’ reasonable attorney fees for the entire case.

Landlords should also be aware that they can be sued for attempting to include what they know are illegal or voidable provisions in their leases. Attempting to dupe a tenant into thinking he no longer has right to pursue fees undermines the public policy goal and is likely an illegal business practice.

For tenants, there are three key steps to take if your landlord attempts a change to lease terms regarding attorney fees:

  1. Respond in writing that you do not accept a term that prohibits fees in any case, especially in civil rights cases such as fair housing or tenant harassment.
  2. Contact a private tenants-rights attorney or the Legal Aid Foundation of Los Angeles if you are an eligible, low-income tenant.
  3. Contact the Consumer Protection Division of the Santa Monica City Attorney’s Office at 310-458-8336 or through our website at smconsumer.org.

Gary Rhoades is a Deputy City Attorney with the Consumer Protection Division (CPD) of the Santa Monica City Attorney’s Office. In addition to taking complaints about housing discrimination and illegal attorney fees terms, the CPD also takes complaints about tenant harassment and unlawful business practices.

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1 Comment

  1. In California, people should also be aware that any contract provision that states a right for the landlord to collect attorneys fees automatically gives the tenants an reciprocal right to attorney fees, even if the contract is written to say that only the landlord has that right. California Civil Code section 1717.

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