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Re: Collecting late fees, repairs etc by MrDan (Georgia) on August 5, 2012 @19:20

                              
Florida Statutes does not address late fees. Nowhere in the Landlord/Tenant Act are late fees mentioned. You can place late charges on your Three Day Notice in most counties if they are considered additional rent, you can evict a tenant for failure to pay rent and late charges, and you most likely can deduct unpaid late charges from the security deposit if they are owed when a tenant vacates. The key is to be sure that your lease address's late fees as additional rent, and any other damages due as additional rent also.

If you use the payment to cover late fee and repair expenses first ($360). This leaves tenant short $360 for Feb rent... If your lease defines late fees and damages are due as additional rent, you should return the $1000 (partial rent) and the 3 day notice would be for the entire amount due ($1360). Some judges have been known to invalidate a notice because it contained additional fees. Call around and ask some local landlords or attorneys what they have encountered with the local judges.

The question becomes did you send the tenant an invoice for the amount of $300, due as additional rent, before the next rental period is due and it's also in the lease. If so, In that case, yes maybe you do return the $1000, because it would be a partial payment and issue a 3 day notice for the full amount due($1360).

Perhaps it's best to accept rent and bill the $360 damage to window as a seperate invoice due on demand if your lease is silent on additional rent. You can always deduct it from the security deposit. But never renew the lease without making sure that any money owed by tenant has been paid beforehand.

What should have happened in January, if rent was late, and lease stated late fees are additional rent, then the acceptance of the $1000 without the late fee would be partial rent. You would return the $1000 and issue a 3 day notice for the amount due of $1060.
Accepting Febuary rent without the late fee for January would waive your right to evict for the non payment of Januarys late fee.

In Febuary, the 3 day notice would be for the window ($300) and Januarys Late fee ($60). The payment of $1000 would be a partial payment and you would return it back to tenant for the full payment of $1360. This amount would be listed on the 3 day notice.

Hope this makes sense? Jet Lag has set in...
[ Reply ] [ Return to forum ]

Re: Collecting late fees, repairs etc by OK-LL on August 6, 2012 @00:05 [ Reply ]
Does any state statute actually say that accepting partial rent followed by a demand for the remaining rent due invalidates the LL's opportunity to evict for non-payment of rent? I've been reading this forum for a few years and I do not recall any statute cited which does this for any state. Is this an old wive's tale or based on law?
    Re: Collecting late fees, repairs etc by MrDan (Georgia) on August 6, 2012 @11:57 [ Reply ]
    The legal concept of 'waiver' may apply if the landlord accepts partial payment of the amount listed on the 'Pay or Quit Notice'. The acceptance of partial payment towards the notice amount may render the 'Notice' null and void in the view of many judges. The landlord has no obligation to accept the partial payment.

    In some States, the acceptance of partial payment is a defense to eviction for that month. Others, the landlord can accept and still evict.

    In other situations, if the tenant is in non compliance with the terms of the lease, and a 'Cure' notice has been issued, the acceptance of rent may void the notice.

    It's good advise that landlords spend some time in court, learning how judges handle eviction cases so they know what to expect.

    Re: Collecting late fees, repairs etc by MrDan (Georgia) on August 6, 2012 @12:43 [ Reply ]
    Her are a few States that do, not a complete list.

    Minnesota
    Section 504B.291 (formerly 504.02) provides that parties in eviction (unlawful detainer) cases involving nonpayment of rent can agree only in writing that partial payment of rent, accepted by the landlord before issuance of the order for the writ of restitution, may be applied to the balance due and does not waive the landlord's action for possession based on nonpayment of rent. This change implies that acceptance of a partial payment of rent without a written agreement may waive the eviction (unlawful detainer) action based on the remaining rent due.

    California
    A residential landlord who accepts any amount of rent from a tenant after serving a 3-day notice waives his right to file a UD action based on that 3-day notice. A residential landlord must re- serve the tenant a notice for the amount now remaining unpaid

    Arizona
    A landlord does not have to accept a partial payment of rent. But if a landlord accepts payment in part or in full after he has given the tenant a notice of nonpayment or a notice of any other kind of lease breach, he cannot evict the tenant unless the tenant also signs a document that states that he can still evict the tenant for violations of the lease spelled out in the form of a partial payment agreement. If the landlord does not have the tenant sign this document, then he loses his right to evict the tenant for that breach of the lease.

    Florida
    Section 83.56(5) of the Florida Statutes which provides, “If the landlord accepts rent with actual knowledge of a non-compliance by the tenant or accepts performance by the tenant. . .the landlord waives his or her right to terminate the rental agreement or to bring a civil action for that non-compliance.”
      Re: Collecting late fees, repairs etc by OK-LL on August 6, 2012 @13:51 [ Reply ]
      The signed document that LL does not waive his right to FED action when collecting partial rent is universal and holds true in every state. But I don't think the reverse is true. Lack of document does not result in automatic waiver of right to FED.

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