Posted by Kent Cheatham on September 28, 2001 at 09:16:51:
In have spoken with people here who say they have won in court with $25-$35 on the 5th and $5/day therafter. I just dont know how long thereafter. I am willing to bet it is just for that month or until court. And the new month would be treated anew with no penalties allowed to acrue from prev month into new month. I need to make a few calls.
My only experience in eviction was recently. I treated ea month as continuing accrual…till I got paid. But my gut told me to be conservative. So After spelling out my total in arbitraion, I made the grand gesture of cutting this large sum down to monthly rents plus damages and something like $35/mo late fees. The other side jumped to sign this and the judge was happy I found middle ground. I never pushed it to see if it would have been allowed.
Actually, I am not a stickler on late fees. I do not plan to make money with late fee’s. My goal is to make my penalty higher than the tenants other creditor late fees, so if there is a choice, I get paid. I rarely charge them. When someone CALLS and gives a late paying date, and then keeps their word, i never charge late fees. If they lie, I’ll go after them like the seven winds of the North.
late fee’s concurrent or parallel? - Posted by Kent Cheatham
Posted by Kent Cheatham on September 27, 2001 at 21:19:26:
This discussion is a about whether rental late fee’s are accrued as if each month is a continuing contract or whether you stop acruing late fee’s for a given month, at months end and any further ones are from the NEXT months late fee.
I know I didnt say that clearly. Let me show an example. My contracts state the following:
You have a one year lease, rent due on the 1st, late after the 4th. On the 5th,I assess, $35, and here is the crux…“with $5 accruing per day thereafter.”
I am wondering what will hold up in court. I treat each month as a separate accrual, with fines running parallel and overlapping.
I.E. If I sue to evict on day 45 (due date of the 1st being day one)(and I know what yall are gonna say bout waiting…grin) and I get to court on day 59, I would show (2 months rent due) plus (a pair of $35’s) plus (54 days x $5 for month one late fees) plus (24 days x $5 for month 2 late fees). For a total of $465 in late fees to date.
As a side kicker question this guy is gonna be evicted 48 hrs later (assumes you win eviction). If he is evicted on the 1st I am sure a judge would allow inclusion of the next months rent in the “future” suit for garnishment(ahem, excuse me, Small Claims). What if his 48 hrs is up on the 29th or 30th? Would it seem inhuman to ask for the next months rent in said future suit. (You KNOW its gonna take a few days cleanup and a couple weeks to rent!)
Re: late fee’s concurrent or parallel? - Posted by JohnBoy
Posted by JohnBoy on September 28, 2001 at 08:52:23:
I think it will all depend on your state laws pertaining to late fees. You may only be allowed to get a flat perecentage of the pass due amount per month. Like 5% instead of being able to collect the $5 per day.
The laws will also usually require you to minimize your losses meaning you can’t just let late fees accrue every month until you decide you won’t wait around any longer. You would be required to take steps to minimize your losses by following through with filing eviction once the grace period has lapsed.
For example:
Rent is due on the 1st. Late on the 5th. On the 5th you serve the 3 day notice to pay or quit. After the 3 days has lapsed you file for eviction. It takes 20 days to get to court. That would be the extent of the days late you would be allowed by the court to collect lates fees on. Any time lapse beyond that that you just sat on and allowed to accrue would be your loss because you didn’t take action to minimize your losses. Therefore you couldn’t collect for lates fees beyond that point. At least that’s the way I’ve seen judges rule in the past in small claims court. They don’t usually allow the $5 per day to accrue. They find that excessive. Some states my only allow 5% per month and you can only get the 5% for that month the money was due. You can’t get 5% for the same month the rent remains past due on future months.
Example:
Rent for August is past due and you charge 5% late fee. August’s rent remains past due through Sept. You can’t charge another 5% for August’s rent being another month late. Only one 5% late fee for the month in which the rent was due.
You need to check with your state laws pertaining to this as I’m sure they differ from state to state regarding what you can get away with charging.