Can a landlord evict a tenant for not paying late fee?

Question

Hi everybody,

I have a tenant who did not pay her rent on time.  She was aware of the late fee and she agreed to pay it.  However, when she sent her payment, she only paid the rent, not the late fee.  She said she will follow the late fee, but did not pay yet.

When she was late for the rent more than 7 days, I sent a demand letter to her for the delinquent rent payment + late fee.  When she did not pay until day the 11th day, I was about to file an eviction.  She paid at the day 15th.  But she only paid the rent not late fee.  She direct-deposited the money to my account.   I asked for the late fee payment too, but she did not answer.

Should I just refund her payment and continue the eviction ?  Can I evict a tenant for not paying late fee? Also, do I make a precedence of accepting a partial payment if I don't take any action for her not paying late fee?

I really appreciate your sharing an experience and advice.

John Underwood · Answer

What does your lease say?

Mine says late fees are treated as rent so the rent is not fully paid if a late fee is not included when the rent is late.

Tell her late fees are taken out first and that her rent is not fully paid. She if that convinces her to pay. You could also send her a statement showing that she is past due on the rent sin e her late fee is deducted.

If that doesn't work consult your local Magistrate and see what they say.

Patricia Steiner · Answer

I don't think your clause on late payments would standup in eviction court.  I have a coupe of recommendations for you:

1.  Send the tenant a Notice To Quit for Non-Payment of Rent on the first day it is late - like the 2nd - for the total amount outstanding which includes unpaid late fees.  Most states allow this action when the rent is late by one day.  It will give your state's term for repayment (mine is 3 days, some are 5) to pay or eviction will begin.

2.  Do not accept rent after that repayment date.  I am concerned that the court will see her chronic delinquency as being "acceptable" to you since it has been the "norm."

3.  Manage to your lease.  Don't let this tenant get by with anything.  Schedule an inspection of the property with her.  I have a hunch that you'll find a whole host of maintenance/lease violations when you do so.  I'm not taking about harassing her - but definitely protecting your investment and property from someone who really needs to find more affordable housing.

4.  The other thing you might want to consider is this (keeping in mind that she's not worth all the time she is consuming): Empathically ask her if she needs to find more affordable housing.  Ask her if she has sought rental assistance/grants from the local Housing office that could ease her financial crisis.  Ask her if she needs to break her lease rather than to certainly face eviction if the delinquency continues.  Bottom line: she needs to be happy elsewhere.  You certainly will be.

On a personal note: I don't want late fees...I want/expect to be paid on the 1st.  No exceptions.  It's amazing how many tenants pay their car payments on time because they don't like to walk (repo man doesn't have to go to court before driving away with their car) but they'll pay their rent late.

I'm sorry you're going through this.  Hope this helps.

Nathan Gesner · Answer

Your clause could be improved. I apply all payments to utilities, late fees, and other charges before applying it to rent. That leaves the rent short and justifies eviction.

James Mc Ree · Answer

The OP doesn't say this is a problem tenant apart from the non-payment of this late fee. The reaction seems extreme unless this is a tenant the OP wants to get rid of for other reasons. The vacancy cost will far exceed the late fee revenue, for which you have no cost anyway.

JD Martin · Answer

This is what we do as well and our reasonable compromise is that we give tenants a one year when they first sign (less it it's November -January), and at the end they go month to month. On rare occasion we will renew a lease for a one year term for an excellent tenant who has a reason - for example, a couple of years ago one of our great tenants in medical school needed to show a signed one year lease to qualify for their residency - but for the most part I want the option to be done with them whenever I want, and I want them to be free to move whenever they decide they'd rather live somewhere else or under someone else's rules.

Tenants will move whenever they really have to, lease or not. Reputable ones, like those we rent to, will ask us to negotiate something fair and we do - we have an early termination form which essentially collects one more month plus the deposit and they walk away scot free. If they are good tenants and near the end, we usually just let them walk anyway since they were likely under market rates. If they've reached the point of month to month, then they just give us their one month notice and I wish them a life well lived.

Wesley W. · Answer

This is reason #42 I only offer month-to-month leases.  In many places, if you file for eviction for non-payment, the tenant can "cure" the breach at the court hearing by paying the arrears at that time.  They get to stay, and now you are out your attorney's and filing fees - which you will now have to try and collect from this tenant (if your lease permits this).  Then, next month, they can start these same shenanigans all over again, you'll have to once again file for eviction - rinse repeat - until their term lease is concluded and you give notice of non-renewal.

As I've stated on these forums many times before, in cases other than class A properties a term lease benefits the tenant more than the landlord.  Some landlords will say it gives them a (false, I would argue) sense of stability by predicting when I turnover will occur.  But if a tenant wants to leave, they are going to leave regardless of when the lease is up, and unless they have a fantastic credit history they are trying to preserve, you can sue them for damages but have a hard time collecting (especially if they skip out and now you have to try and locate them to even serve them and get your day in court).

Back to your situation:  I think you can file for eviction, but if the tenant shows up with the $25 late fee (or whatever it is), she cures the breach and she gets to stay until her lease ends.  This is an unenviable situation I would prefer not to find myself in.

Chalk this one up to a learning experience, and any money you are out as "tuition" and tighten up your lease and try and avoid making the same mistake a second time.

Good luck to you!

Eric James · Answer

Don't try to create your own lease. Get a lease that that been vetted.over years by the legal team of a large association.

Wesley W. · Answer

So that's your justification for not enforcing your lease?

Can a landlord evict a tenant for not paying late fee?

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