As a rule, each party pays their own attorney fees, litigation costs, and expenses. The landowner pays for their attorney and the solar company pays for their attorneys regardless of the outcome of the case. However, many solar leases attempt to shift attorney fees by requiring the landowner to pay the solar company’s attorney fees should their attorneys prevail in any litigation. Accordingly, if a landowner brings a claim and is unsuccessful then the landowner is required to pay all the landowner’s legal fees, costs, and expenses as well as all the solar company’s legal fees, costs, and expenses. This type of fee-shifting must be avoided at all costs. The solar companies will hire some of the most expensive lawyers in Pennsylvania and the landowner must not undertake the risk of paying the company’s attorney fees and expenses when engaging in any dispute with the company. The mere threat of fee shifting can and often will preclude a landowner from bringing a legitimate claim out of fear of the incredible cost involved in an unsuccessful claim.
The landowner should negotiate to eliminate any fee-shifting language that would require the landowner to pay the solar company’s legal fees under any circumstances. To the contrary, the landowner should negotiate for a fee-shifting position to require the solar company to pay the landowner’s attorney fees, costs, and expenses if the landowner prevails in litigation. Just as a fee-shifting provision can preclude a landowner from bringing a viable claim, a fee-shifting provision in favor of the landowner may incentivize the solar company to recognize legitimate claims to avoid losing the case and paying all attorney fees.
The landowner should seek a fee-shifting provision to their benefit, but in no circumstances should a landowner agree to pay a solar company’s legal fees, costs, and expenses.
