Recent Change to Lease Forms

To start 2024, we made some updates to our lease and some of the standard lease attachments. Effective with the January 30 version, we have updated the attorneys’ fees provision in all four version of the lease to reflect industry best practices and the latest litigation. In particular, Section 16 of the leases provides that “as provided by law and except as otherwise prohibited,” the prevailing party in any litigation shall receive attorney’s fees as part of the judgment. We have included this restrictive language for many years because Washington law prohibits attorneys’ fees in certain circumstances. Several class action lawsuits are currently pending against groups of landlords who have more ambiguous language in their contracts. At this time, we are not aware of any RHAWA member using our leases who has been made a party to any of these cases.

We have also removed any reference to an award of attorneys’ fees from the various lease addenda. In its place, all four leases now have added language that makes clear that the Section 16 attorneys’ fees language also applies to any addenda included with the lease or added later. This was always the case, but we strengthened that language to avoid confusion.

When managing your relationship with your residents, remember two things about this clause.

• First, this is a two-way street. If you violate your resident’s rights in such a away that they are compelled to sue you and win, you will most likely be liable for their attorneys’ fees in any judgment against you. This is referred to as a bilateral clause; by law, all attorneys’ fee contract provisions are bilateral in Washington.
•  Second, this is limited to prevailing in a lawsuit. You should not demand legal fees from your resident as a result of issuing a notice to pay rent or vacate, consulting with an attorney about a maintenance request or deposit-accounting dispute, or anything else. Neither you nor your resident are entitled to attorneys’ fees except if you prevail in a lawsuit against the other party. When reinstating a tenancy during a non-payment eviction, a landlord may only recover attorneys’ fees as part of reinstatement if they are awarded by the court.

While you cannot demand or collect attorneys’ fees without winning a lawsuit, you may be able to collect a fee for issuing certain notices under section 2 of the lease. The final paragraph of this section provides a place for you add a fee for preparing and serving a notice of lease violation on your resident. This is enforceable without a lawsuit if that fee is a reasonable estimate of your costs for preparing and serving that notice and this practice is not restricted by local ordinance. (See Section 2 of the Lease Requirements by Local Jurisdiction for local law information).

Remember, you should always use the most recent version of all RHAWA forms by downloading it from our website when needed. We update forms year-round to reflect state and local law changes, best practices, and in response to litigation.