Our federal Fair Housing Act (FHA), like many civil rights laws, contains a fee-shifting provision. What that means is the “prevailing party” (legalese for the winner in a case) can petition the court for an award of attorney’s fees and costs expended in obtaining the result from the other (losing) side.  Most of the law involving the recovery of legal fees concerns requests by plaintiffs who believed they were the victims of unlawful discrimination.  But, what about the defendant – the apartment owner or management company who is wrongfully sued for discrimination, but who is ultimately vindicated?  Can management also petition the court to send the unsuccessful plaintiff a bill for its legal fees and costs?

Yes, but the burden is high. As interpreted by the federal courts across the country, a prevailing defendant (in our case an apartment owner and/or management company) can be awarded fees if the plaintiff’s case was frivolous, unreasonable, groundless or if the plaintiff continued to litigate after it clearly became so.  A fee award to a prevailing defendant is also appropriate if the plaintiff brought the claim in subjective bad faith.

This means that while fees awarded to defendants are certainly not common, it is an arrow in the defense quiver — and one that can be used particularly when the plaintiff’s case is exceptionally weak and lacks any merit whatsoever.  In my experience, it is not something to raise in each and every case, but one which can help when the facts are right.

Just A Thought.