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Kelly v. Jackson

A-4030-95T2 (N.J. Super. App. Div. 1997) (Unpublished)

LEASES; ATTORNEYS FEES—Must attorney fee provisions in leases be mutual? Here, the Court says—no.

A residential lease required tenant to pay landlord’s attorney’s fees if the tenant violated the lease, but contained no comparable provision for payment of tenant’s attorney’s fees. The trial judge granted tenant’s application for counsel fees anyway. The sole issue on appeal is the award of $6,375 in counsel fees to tenant. The Superior Court found the lease to be unambiguous and not so unconscionable that it should be rewritten by the Court merely because it may be more desirable to draft it a different way. The Court stated that even though there is much case law supporting the notion of correcting unequal bargaining power, such cases have never included an award of counsel fees. The Court reversed and remanded for further proceedings and allowed the trial judge to grant counsel fees to the tenant, but only if the judge found that landlord met the criteria for such an award under the Frivolous Law Suit Statute, even though tenant never made such a claim in its pleadings.


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