If we had to take a tenant to court for nonpayment of rent and the litigation was needed to secure the rent and we had a provision in lease about attorney fees which did not include the term as "additional rent", is there anyway we could get the legal fees paid for if we were the prevailing party in court?
2 Answers from Attorneys
Yes. The additional rent provision affects only the L/T action. You can sue in the Special Civil Part and recover a money judgment for attorney's fees and what everelse the tenant might known.
In an eviction proceeding, the tenant can avoid eviction by paying the unpaid rent up until the end of the day on the day of court. If attorney's fees were not stated to be "additional rent," then the tenant would not have to pay that in order to avoid eviction. However, that does not mean that the funds are not owed to you. It simply means that nonpayment cannot be used as grounds for eviction. At the end of the lease, you can deduct funds owed under the lease from the security deposit (unpaid rent, damages to the property, attorneys fees, etc.) Similarly, if the security deposit is insufficient and you need to sue the tenant for amounts owed under the lease, you can include the attorneys fees which were incurred during the lease. In summary, you would not be able to force payment of the attorneys fees in an eviction proceeding, but you would be able to include them in a separate lawsuit for funds owed under the lease. Next time you have occasion to enter into a written lease, with this or any future tenant, I suggest that you utilize a better form of lease, and take care to state that late fees, attorneys fees, unpaid utilities, and all other tenant responsibilities shall be deemed as "additional rent."
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