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I would be hard pressed to believe that any judge is going to allow a LL to save up and charge late fees months and months down the road without acknowledging it within a month after it happens. "Oh hey, SURPRISE!"
Nah, I doubt that will fly anywhere.
What makes you think there is a time limit on collecting late fees?
Is there a law that states a LL has to notify a tenant and actively pursue collection of said fees incurred while tenant is still residing, under contract, in a property? If the fees are already stated in the lease & the tenant signed the lease?
What makes you think there is a time limit on collecting late fees?
Is there a law that states a LL has to notify a tenant and actively pursue collection of said fees incurred while tenant is still residing, under contract, in a property? If the fees are already stated in the lease & the tenant signed the lease?
The problem is that the behavior of accepting late rent, becomes a waiver of late fees. The tenants could argue that the terms of the agreement were changed by the landlord, by not enforcing the late fees.
The trial court said he waived his rights to the late fees by not collecting them. He appealed and lost on appeal. Here's a quote:
It follows that, if the parties can change the deadline for payment by their conduct, the penalty for making a late payment is not enforceable. That comports with the conclusion of the Ellerbe court, which held that longstanding acceptance of late rent payments resulted in the waiver of “the right to enforce any penalty * * *.” 141 Misc.2d at 703, 534 N.Y.S.2d at 103.
They said that if a landlord wants to start enforcing the late fee again, he has to give them proper written notice that he's going to start doing it.
What makes you think there is a time limit on collecting late fees?
Is there a law that states a LL has to notify a tenant and actively pursue collection of said fees incurred while tenant is still residing, under contract, in a property? If the fees are already stated in the lease & the tenant signed the lease?
I would think that any judge would at the very least, expect the LL to have notified the tenant within a reasonable amount of time in writing that there were late fees due instead of just letting them accumulate. And the OP gave the impression that they never did notify the tenant they were late when it happened. So, nothing happens, tenant doesn't receive anything and no action is taken so a tenant could easily assume that the LL let it slide, forgot about it or perhaps they weren't late after all. In other words, judges don't particularly like surprises. Things need to be invoiced or in writing to create a paper trail.
For instance, if you had a credit card, cable or phone bill, etc and you knew you were late each month or frankly, you weren't even sure if you were late and the company never billed you for being late, how would you feel if you suddenly received an 'oops, we forgot' SURPRISE bill charging you for all of the late fees a year (or years) later for all of the months you were late? I don't believe you would take that lightly and not fight it. And that vendor would have a very difficult time collecting back that far if nothing was ever sent to you or no action was taken throughout that whole period of time.
There are some states that even allow LLs to deduct the late fees from the next month's rent which results in their next month's rent being late, fees assessed and so forth. But the tenant has to be notified in writing of this being done and procedures need to be followed in case any action needs to be taken down the road or if it ends up in court. Again, it is so there are no surprises and everything is backed up with clear documentation.
And I never said that it has to be done specifically while the tenant is still residing there. I said the tenant needs to be notified in writing within a reasonable time after it occurs, not saved up for months and months without any action be taken and then SURPRISE! And this has nothing to do with whether late fees are stated in the lease. Even if it is stated in the lease, which the OP stated it was, it still doesn't mean that the tenant doesn't need to be notified in writing if fees, rent or whatever wasn't paid.
The problem is that the behavior of accepting late rent, becomes a waiver of late fees. The tenants could argue that the terms of the agreement were changed by the landlord, by not enforcing the late fees.
LOL Reminds me of a 'funny' story and that story happens to involve moi.
I have lived in my current apt for 15 or so years now. Our rent has to be mailed and postmarked on or before the 1st of the month or a 5% late fee is charged. 10 years into living here I get a spreadsheet in the mail from my LL that is 2 or more pages long. It had every rent payment for 10 years and when each was paid and it also indicated which months (allegedly) that I was late and a total amount due literally in the $1000s No proof of post marked envelopes, no note, no nothing included with it. Even if they had provided the post marked envelopes good luck with collecting it.
I did nothing but LMAO when I received and I still laugh to this day about it. Never have heard a word about it since nor have I received anything else since and that was 5 or so years ago.
I can't wait to see what happens if I ever move.
The really sad part is I know for a fact that numerous tenants who have lived here and since moved, had their sec deps gouged for numerous late fees, they never received a thing prior to moving about the so-called late fees and to my knowledge none of them ever fought the LLs on it because I stayed in contact with many of them after they left. How sad is that? Talk about Ca-ching!
LOL Reminds me of a 'funny' story and that story happens to involve moi.
I have lived in my current apt for 15 or so years now. Our rent has to be mailed and postmarked on or before the 1st of the month or a 5% late fee is charged. 10 years into living here I get a spreadsheet in the mail from my LL that is 2 or more pages long. It had every rent payment for 10 years and when each was paid and it also indicated which months (allegedly) that I was late and a total amount due literally in the $1000s No proof of post marked envelopes, no note, no nothing included with it. Even if they had provided the post marked envelopes good luck with collecting it.
I did nothing but LMAO when I received and I still laugh to this day about it. Never have heard a word about it since nor have I received anything else since and that was 5 or so years ago.
I can't wait to see what happens if I ever move.
The really sad part is I know for a fact that numerous tenants who have lived here and since moved, had their sec deps gouged for numerous late fees, they never received a thing prior to moving about the so-called late fees and to my knowledge none of them ever fought the LLs on it because I stayed in contact with many of them after they left. How sad is that? Talk about Ca-ching!
OMG. It is funny that they haven't said another word about it. What a jerk! Well, you know you'll kick his butt in court if you ever do move out.
The problem is that the behavior of accepting late rent, becomes a waiver of late fees. The tenants could argue that the terms of the agreement were changed by the landlord, by not enforcing the late fees.
I would think that any judge would at the very least, expect the LL to have notified the tenant within a reasonable amount of time in writing that there were late fees due instead of just letting them accumulate. And the OP gave the impression that they never did notify the tenant they were late when it happened. So, nothing happens, tenant doesn't receive anything and no action is taken so a tenant could easily assume that the LL let it slide, forgot about it or perhaps they weren't late after all. In other words, judges don't particularly like surprises. Things need to be invoiced or in writing to create a paper trail.
Well that's where it went left. I notify, but I'm not going to actively pursue (to the point of eviction or not cashing the next month's rent check) the issue in order to collect a fee. You don't pay me? It comes out of your security.
Same with any fine my tenants incur from the city. I pay the fine, it's in my name. I send them notification (with copy of bill). I ask to be paid ASAP. If they don't pay up? I deduct from security.
Quote:
For instance, if you had a credit card, cable or phone bill, etc and you knew you were late each month or frankly, you weren't even sure if you were late and the company never billed you for being late, how would you feel if you suddenly received an 'oops, we forgot' SURPRISE bill charging you for all of the late fees a year (or years) later for all of the months you were late? I don't believe you would take that lightly and not fight it. And that vendor would have a very difficult time collecting back that far if nothing was ever sent to you or no action was taken throughout that whole period of time.
Ever dealt with the IRS?
Quote:
And I never said that it has to be done specifically while the tenant is still residing there. I said the tenant needs to be notified in writing within a reasonable time after it occurs, not saved up for months and months without any action be taken and then SURPRISE! And this has nothing to do with whether late fees are stated in the lease. Even if it is stated in the lease, which the OP stated it was, it still doesn't mean that the tenant doesn't need to be notified in writing if fees, rent or whatever wasn't paid.
I didn't say you said that.
I got the rest from sites like nolo and avvo....which said nothing about notification, etc., just that you can deduct fees incurred by a tenant during the term of the lease (if fees were stated in the lease) from their security deposit.
Well that's where it went left. I notify, but I'm not going to actively pursue (to the point of eviction or not cashing the next month's rent check) the issue in order to collect a fee. You don't pay me? It comes out of your security.
Same with any fine my tenants incur from the city. I pay the fine, it's in my name. I send them notification (with copy of bill). I ask to be paid ASAP. If they don't pay up? I deduct from security.
And the whole point of the OP's situation, and the only thing I was clarifying to you that you were questioning/disagreeing with, was that the OP never once notified the tenant of anything due and that is where the problem occurs on whether it can be deducted from sec dep or not. Again, you don't save things up that you have not made the tenant aware of and then deduct them from the sec dep. That won't fly with many (or any) judges that I am aware of.
Quote:
Originally Posted by Informed Info
Ever dealt with the IRS?
Oh come on, seriously? You know as well as I do that the IRS is apples and oranges, an exception to the rule, compared to most every other situation. Not even a close comparison.
Quote:
Originally Posted by Corn-fused
And I never said that it has to be done specifically while the tenant is still residing there. I said the tenant needs to be notified in writing within a reasonable time after it occurs, not saved up for months and months without any action be taken and then SURPRISE! And this has nothing to do with whether late fees are stated in the lease. Even if it is stated in the lease, which the OP stated it was, it still doesn't mean that the tenant doesn't need to be notified in writing if fees, rent or whatever wasn't paid.
^^^^
Quote:
Originally Posted by Informed Info
I didn't say you said that.
I beg to differ. What is this?:
Quote:
Originally Posted by Informed Info
Is there a law that states a LL has to notify a tenant and actively pursue collection of said fees incurred while tenant is still residing, under contract, in a property? If the fees are already stated in the lease & the tenant signed the lease?
Quote:
Originally Posted by Informed Info
I notify my tenants immediately.
Which is the correct way.
This whole back and forth is beginning to sound like Abbott and Costello
Last edited by Corn-fused; 04-04-2016 at 10:45 PM..
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Talk about Ca-ching!
