Fairchild

Tenants leased a single-family residence. The lease had an attorney's fees and costs provision. The landlord failed to provide a habitable dwelling. A fire resulted, destroying the tenants' personal property. At the time, the tenants were behind in their rent. This lawsuit ensued, and the tenants recovered damages for the loss of their property, and the landlord recovered the back rent.

The issue before us is whether the tenants can recover attorney's fees and expert witness fees and other litigation costs under Civil Code section 1717, notwithstanding their being in breach of the lease. We conclude that they can recover attorney's fees because the implied covenant of habitability contained in the lease is independent of the covenant to pay rent. But they are not entitled to expert witness fees and other litigation costs because the reciprocity provisions of Civil Code section 1717 do not permit a contractually broadened definition of costs.

In a prior appeal, we affirmed the judgment for the tenants on their claim against the landlord for breach of the implied warranty of habitability. ( Fairchild v. Park (Apr. 17, 2000, B131806) [nonpub. opn.].)

In the present…

Tenants leased a single-family residence. The lease had an attorney’s fees and costs provision. The landlord failed to provide a habitable dwelling. A fire resulted, destroying the tenants’ personal property. At the time, the tenants were behind in their rent. This lawsuit ensued, and the tenants recovered damages for the loss of their property, and the landlord recovered the back rent.

The issue before us is whether the tenants can recover attorney’s fees and expert witness fees and other litigation costs under Civil Code section 1717, *922 notwithstanding their being in breach of the lease. We conclude that they can recover attorney’s fees because the implied covenant of habitability contained in the lease is independent of the covenant to pay rent. But they are not entitled to expert witness fees and other litigation costs because the reciprocity provisions of Civil Code section 1717 do not permit a contractually broadened definition of costs.

Background

In a prior appeal, we affirmed the judgment for the tenants on their claim against the landlord for breach of the implied warranty of habitability. (Fairchild v. Park (Apr. 17, 2000, B131806) [nonpub. opn.].)

In…

I concur in part and dissent in part. I agree with the reversal of the order denying defendant’s motion to strike $9,147 in costs. I disagree, however, with the reversal of the order denying plaintiffs’ motion for attorney fees. In my view, the breaching tenants who, without justification, had withheld rent for a year, may not enforce a contractual attorney fee clause against a landlord whose breach of *932 the implied warranty of habitability caused the tenants to suffer property damage in an electrical fire. The landlord’s breach did not, in this specific case, extinguish the tenants’ duty to pay the back rent accrued during the year before the fire.

The majority cite an unlawful detainer case, Green v. Superior Court, supra, 10 Cal.3d at page 619, for the proposition that there is “a common law implied warranty of habitability in residential leases in California . . . .’’In general, I agree that a residential tenant who defeats an unlawful detainer action by asserting the landlord’s breach of the implied covenant of habitability may, in addition to remaining in possession of the premises, recover attorney fees under the lease agreement, provided the landlord’s breach has…