concurring in part, specially concurring in part.
I concur with the majority’s well-written and lucidly reasoned disposition of the affirmative defense.
I differ in approach regarding attorney fees. I understand the law as derived from cases cited by the majority to be that attorney fees are allowable if authorized by statute or contract. I agree with that portion of the majority opinion which clearly explains why fees are not authorized by statute. I cannot join in that portion of the opinion which disposes of plaintiffs’ contractual claim for attorney fees. My primary reason, in all candor, is that I cannot follow the explanatory reasoning in the last two long paragraphs. I fear that the lack of clarity might mislead.
My approach to the question of whether the award of attorney fees was authorized by a contract is otherwise. Plaintiffs rely on the following provision in the parties’ lease agreement:
"In any court proceeding brought by landlord or tenant to enforce rights under this lease, the prevailing party therein shall be entitled to receive from the other party such sum as the court may adjudge reasonable towards its attorneys’ fees including a sum towards attorneys’ fees for any appellate proceedings.” (Emphasis supplied.)
Plaintiffs did not commence this FED action to enforce any contractual rights in the lease or to enforce any *789right in the lease to terminate the tenancy. Cf. Wash. Sq. v. First Lady Beauty Salons, 43 Or App 269, 602 P2d 1083 (1979). Rather, plaintiffs were enforcing their right to possession of the premises after the termination of the lease which followed defendant’s failure to make a timely payment of the rent. Thus, the provision for attorney fees in the lease agreement does not authorize the award of attorney fees in this action. Cf. Hughes v. Bembry, 256 Or at 172, 470 P2d 151 (1970).
It is argued that the recovery of premises by the landlord for nonpayment of rent as required by the lease is an enforcement of rights necessarily implied or foreseen by the lease. Under the narrow view of contract authorization of attorney fees taken by the Supreme Court, I feel constrained to deny them in this case.