The unfair late fee

Longtime tenant fights policy absent from lease

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Mar. 12, 2010

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Longtime tenant fights policy absent from lease

Robert Griswold
Inman News

Q: I have been a tenant in the same apartment for nearly 12 years. Last month was the first time I couldn't pay my rent on time because I was out of town longer than expected. I sent in my check as soon as I returned home, on the fifth, but my landlord now wants to charge me a $40 late fee.

I was surprised and I checked my lease. It says the rent is due in advance by the first of the month and there is no grace period. But there is also no mention of a late fee. I also noticed that the landlord didn't even cash my check for more than three weeks after she received it.

This doesn't seem fair and I am thinking that she can't arbitrarily demand a late fee without disclosing it to me in my lease. What is your opinion?

A: You sound like an ideal tenant and have a valid point. If there is no late charge stated in the lease, then the landlord would have trouble collecting one if she were to pursue the matter in small claims court or a limited jurisdiction court.

I am also surprised that any landlord in today's economy would immediately charge a late fee to a 12-year tenant who had an impeccable payment history. Most landlords would be thrilled to just have a tenant who pays on time.

Now I certainly understand that in this economy landlords need to be firm to avoid tenants taking advantage or making excuses. But with your track record you certainly don't seem to be likely to suddenly slip into a bad habit of paying chronically late each month.

A landlord who is more interested in collecting late charges than getting the rent on time is very misguided. The purpose of a late charge is to cover the additional costs that the landlord might incur in collecting the rent -- including time spent contacting you as well as the loss of the use of funds -- and it certainly serves as a deterrent for most tenants.

But, as you pointed out, your landlord didn't really incur any additional costs, as she didn't serve you any legal notices and apparently didn't suffer any hardship by not having your rent on or before the first of the month -- based on her failure to immediately deposit your check.

A more appropriate reaction would have been for your landlord to call you or send you a simple note or letter reminding you that the rent is due on or before the first. She could also modify the lease when it expires and include a late-fee clause if she is concerned about the potential of future late payments.

But since there is no late fee specified in your lease at this time I would suggest that you contact your landlord and politely bring this to her attention. Hopefully, she will realize just how very lucky she is to have such a great tenant who has paid on time for so many years.

Q: I am a renter and have been with the same landlord for several years. In that time I have planted many nice plants around my cottage, such as Australian tree ferns, daisies, special ground covers and exotic miniature palms. I have no plans to leave soon, but once I decide to move I would like to take these plants with me, as they will be very valuable. Is there any law that says I cannot remove what I put into the ground on property that is not mine?

A: Additions to the structure can be an issue, but I am not aware of any laws that specifically talk about plants. Clearly, the wholesale removal of these plants will leave the property bare and desolate and the landlord could be expected to be very upset if you did not have an agreement in advance about the required condition of the grounds for when you move out.

Generally, any landscaping improvements that you make will need to remain so if you would like to take the plants with you when you leave. It would be essential that you communicate this to your landlord and reach an agreement that is reasonable.

There is no requirement that you make the landscaping improvements, but there is also no protection that the landlord will not consider the removal of these plants as damage to the property. I am sure that there was some plant material there when you moved in, and it is reasonable for the landlord to expect that you will leave the property with at least that level of landscaping.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of "Property Management for Dummies" and "Property Management Kit for Dummies" and co-author of "Real Estate Investing for Dummies."

E-mail your questions to Rental Q&A at rgriswold.inman@retodayradio.com.

Questions should be brief and cannot be answered individually.

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