A well-drafted and negotiated commercial lease typically includes a provision entitling the prevailing party in litigation to an award of attorney fees. In many complex lease interpretation cases, the issue of prevailing-party attorney fees is a driving force in the settlement of disputes, or an important issue to be determined by the court after the trial.
New Jersey case law currently provides the analytical framework for a court to determine if a party has prevailed on its claims and is therefore entitled to attorney fees. The courts, however, have not addressed which party, if any, is entitled to attorney fees where there is a mutual prevailing-party provision and each party has prevailed on some of their claims. A mutual prevailing-party provision is one which states that the prevailing party is entitled to an award of attorney fees, as opposed to a one-sided provision usually favoring the party with an attorney or in the stronger position when the lease was negotiated.
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