On appeal from the Essex County District Court.
Conford, Pressler and King.
This is an appeal from a judgment of possession entered by the Essex County District Court in a summary dispossess action. The narrow question here raised is whether, under the terms of this residential lease as written, plaintiff landlord may demand as part of the rent due and owing a reasonable counsel fee for the bringing of the dispossess action.
Plaintiff landlord and defendant tenant entered into a written lease for the rental of an apartment, commencing June 17, 1977, at a monthly rental of $190. Plaintiff, a governmentally subsidized housing corporation, filed this summary dispossess action the following October after defendant had defaulted in her rent obligation for two months. At trial defendant tendered the full two-month rent payment of $380 as well as $8.10 as court costs. The only dispute was whether, in order to cure her default, defendant was also required to pay plaintiff the attorney's fee it demanded of $35, an amount stipulated as reasonable. The judge concluded that the fee was in the nature of "added" rent, and he required its payment as rent due and owing. Defendant appealed and the judgment was stayed following her payment to the clerk of the full amount of the demand, including the attorney's fee. We reverse.
We are satisfied that where a written lease expressly so provides a reasonable attorney's fee incurred by the landlord in bringing a summary dispossess action for nonpayment
of rent may properly be treated by the county district court as part of the rent due and owing by the tenant. That, indeed, was our holding in Trenton Housing Auth. v. Green , 118 N.J. Super. 544, 545 (App. Div. 1972), certif. den. 61 N.J. 159 (1972), where we said that such a fee "could lawfully be contracted to be considered additional rent, for purposes of the summary dispossess act." As we there reasoned
It is entirely consistent with those [low-rent housing] policies that landlord housing authorities recoup from dilatory tenants the reasonable legal costs attendant upon necessary dispossess actions. Nor is there anything unconscionable or otherwise contrary to public policy in doing so by a lease stipulation that the reasonable attorney's fees become additional rent due and owing by the tenant. [118 N.J. Super. at 545-546]
Although neither Trenton Housing Auth. nor Mury v. Tublitz expressly so state, the underlying predicate of both cases derives from N.J.S.A. 2A:18-55, which mandates the discontinuance of the dispossess action upon payment by the tenant to the clerk of the court of the amount of the rent due plus "costs of the proceedings." Such payment before entry of final judgment in a dispossess action based on nonpayment of rent ends the court's jurisdiction over the matter. Vineland Shopping Center, Inc. v. De Marco , 35 N.J. 459, 465 (1961); Academy Spires, Inc. v. Jones , 108 N.J. Super. 395, 400 (Law Div. 1970). The county district court does not, consequently, have the jurisdiction to require the tenant in a dispossess action to make any payment other than or in addition to that specified by the statute in order to effect a dismissal of the action and the continuation of his tenancy. Since the term "costs" used by the statute clearly refers to costs authorized by Title 22A of the Revised Statutes , and since Title 22A does not authorize an allowance of counsel fees as part of the statutory
costs in a dispossess action,*fn1 payment of a counsel fee can be required by the court as a condition of dismissal of the dispossess action only to the extent that such a fee can be considered as part of the rent due and owing. And it can be so considered only if the lease so provides.
The specific leases under consideration in both Trenton Housing Auth. and Mury v. Tublitz, supra , were unequivocal in their characterization of the counsel fee incurred in bringing the dispossess action as part of the rent due and owing. Were the lease provision here reasonably construable as having the same import, the same result there reached would obtain here. This landlord's problem, however, in ...