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Finder’s Fees, Pet Fees and Damage Fees: A Landlord’s ‘Right’ to Collect Fees as Rent

Many New Jersey landlords require that tenants pay extra money for certain “extra” rights. For example, a landlord may require a pet fee in exchange for the right to keep a pet on the property. Some landlords charge tenants “finder’s fees” for the right to rent an apartment (even though no real estate brokers are involved). Tenants often bristle at paying these extra fees, especially when a lease is renewed. This raises the question: Can a tenant be evicted for failure to pay additional fees?

To begin with, a tenant protected by the NJ Anti-Eviction Act can be evicted for failure to pay rent pursuant to NJSA 2A:18-61.1a. This section allows for a residential tenant to be evicted if the tenant “fails to pay rent due and owing under the lease…” So, in order to evict a tenant for failing to pay a fee, the fee must be “rent.” The difficulty lies in the landlord’s ability to characterize fees as “rent” for the purpose of eviction.
Leases (landlord-tenant contracts) are considered contracts of adhesion. A contract of adhesion is one in which the parties are not on equal footing (or have equal bargaining power) to the point where one must accept the other’s terms without negotiation. In McNeil v. Estate of Lachmann, 285 N.J. Super. 212, 218 (App. Div. 1995) the Court noted that in a landlord-tenant context a “contract where one party…must accept or reject the contract and [it] does not result from the consent of the party…is a contract of adhesion.” Since the lease between the landlord and tenant is a contract of adhesion, any terms unfavorable to the tenant will be interpreted against the landlord.
Additionally, the Appellate Division stated that they’re hesitant to allow landlords to play games with the word “rent” for the purpose of eviction. Ivy Hill Park Apartments v. Sidisin, 258 N.J. Super. 19 (App. Div. 1992), the Court added:

“We are reluctant to permit plaintiff to establish jurisdiction under N.J.S.A. 2A:18-61.1a by characterizing certain damages as rent and in the same proceeding to deny that the charge sought to be enforced is rent under the rent control ordinance.”

Although Sidisin involved the interplay between a landlord’s definition of “rent” and a local rent control ordinance, the point is no less important. In the context of a contract of adhesion, a landlord’s self-serving definition of rent may not form the basis to evict a tenant for nonpayment of “rent.” Landlords should take extra care to carefully define lease terms and ensure that those definitions are compliant with local law. Failing to do so could prevent a landlord from evicting a tenant for nonpayment of additional fees.
Offit Kurman practices landlord tenant law throughout New Jersey assisting landlords and tenants in avoiding unnecessary and costly delays. The firm’s geographic practice area includes: New Jersey (Jersey City, Hoboken, Bayonne, Hudson County, Newark, Essex County, Woodbridge, Middlesex County, Paterson, Passaic County, Bergen County). The Firm invites you to visit the “Promises” page for our new way of doing business