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
Original Source: https://www.courtlistener.com/opinion/2256171/fairchild-v-park/ ↗

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The fact that a landlord must maintain the premises in a habitable condition during the holdover period does not mean, however, that the attorney fee clause is suddenly resurrected if the landlord later breaches the implied warranty of habitability. The contractual obligation to pay attorney fees is not the same as the implied obligation to maintain a habitable dwelling. I know of no legal authority to support the proposition that a tenant's unjustified nonpayment of rent will be eradicated by the landlord's subsequent failure to maintain *454 the premises during the holdover period, such that the tenant may enforce the attorney fee clause against the landlord as though the tenant had not materially breached the contract. In my view, when a tenant's nonpayment of rent is unjustified, his remedies for the landlord's failure to maintain the premises should be no greater than the remedies available under a lease that does not contain an attorney fee clause. A non-breaching tenant with no such clause in the lease is on his own in retaining counsel to sue for breach of the habitability covenant.[3] Under the majority view, a breaching tenant who is lucky enough to have such a clause gets to have the landlord fund the tenant's lawsuit.

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