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Warren A. Estis and Michael E. FeinsteinWarren A. Estis and Michael E. Feinstein ()

Real Property Law (RPL) Section 234 provides in pertinent part that “[w]henever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorneys’ fees and/or expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease…, there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorneys’ fees and/or expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease….”

Thus, under RPL §234, when a residential lease contains a provision entitling the landlord in a summary proceeding to recover attorney fees and/or expenses based on the tenant’s breach of the lease, there is implied in the lease a reciprocal covenant for the landlord to pay the tenant’s attorney fees and/or expenses based on the landlord’s default or when the tenant is successful in defending a summary proceeding.

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