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DRAFT FOR ATTORNEY REVIEW — NOT FINAL

Fairchild v. Park, 109 Cal. Rptr. 2d 442 (2001)

Citation
Fairchild v. Park, 109 Cal. Rptr. 2d 442 (2001)
Parent Document
Fairchild v. Park, 109 Cal. Rptr. 2d 442 (2001)
Jurisdiction
California (state)
Effective Date
2001-07-19

Other Sections in This Document (144)

Full Text

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If the landlord's breach is total, such that the tenant's nonpayment of rent is excused, I believe the tenant may enforce the attorney fee clause because the tenant has not breached the lease agreement. (See Greenwald & Asimow, Cal. Practice Guide: Cal. Real Property Transactions (The Rutter Group 2000) ¶ 11:55 ["A party's legally excused or justified failure to perform a material covenant of a contract is not a breach of contract and thus does not give the other party any affirmative cause of action." (Italics omitted.)].) That is not the case here, however. In this case, the trial court found the tenants owed $12,000 in back rent, a finding that is undisputed on appeal. Accordingly, the tenants were conclusively found to be in breach of a material term of the lease agreement.