Re: Question for CA Landlords - Landlord Forum thread 189055

Re: Question for CA Landlords by Lighthope on October 11, 2009 @01:36

The statement made by California Tenants Rights Handbook is a gross misinterpretation of the ruling of the Superior Court ruling.

For those who want to read the actual ruling, you can find it here: http://www.precydent.com/OriginalVersion/JAD4-04.PDF?id=88305

I will summarise the problem with CTRH.

In essence, the Court did NOT rule that late fees are illegal. They ruled that the LL in this particular had not shown evidence that it would be "impracticable or extremely difficult to fix the actual damage" and thus 1671(d) did not apply. Had the LL done so, they would likely have prevailed as the Court had dismissed the tenant's other argument.

A simple rewording of the lease may torpedo any tenant who tries to use this ruling:

"Both parties agree and stipulate that it would be impracticable or extremely difficult for LL to fix the actual damage sustained by the LL should Tenant be late in paying his rent, and thus both parties agree that liquidated damages in the amount of <insert reasonable amount here> shall be paid by Tenant to LL for each month rent is not paid on time. Such liquidated damages shall not limit the LL to take other remedies against Tenant for unpaid rent including but not limited to eviction."

That last sentence may need some cleaning up as it is imperative to not paint yourself into a corner, as once you start throwing around the "liquidated damages" phrase, you can cut yourself off from other remedies.

Lighthope

Pearls of Wisdom - Okay, I pulled the pin. Now what? Where are you going?

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Re: Question for CA Landlords by Anonymous on October 11, 2009 @09:48	[ Reply ]

Thank you! Once again. This is a LL site. Posters, please refrain from posting material from Tenant "Handbooks" that are written by and for tenants and may be inaccurate interpretations of the law. Quotations of the actual law statutes are always appreciated.

Re: Question for CA Landlords by Tom on June 6, 2020 @15:55	[ Reply ]

It is patently foolish to claim that, "it would be impracticable or extremely difficult for LL to fix the actual damage . . ." As a blanket statement in a lease because Orozco found that a the landlord must must present evidence to that point. "2. Respondent neither pleaded nor proved that damages were impracticable or extremely difficult to fix, and thus he was not entitled to the presumption that the late fee represented actual damages. Under these circumstances, the late fee was void." Further the Civil Code Section 1671(a) provides that Section 1671 does not apply in cases where a statute specifically prescribes rules or standards for determining liquidated damages. Because Civil Code Section 3302 states, "The detriment caused by the breach of an obligation to pay money only, is deemed to be the amount due by the terms of the obligation, with interest thereon." The California Constitution defines that interest rate as 10% simple interest per year, or 1/3650 per day. However, the current reasonable percentage could be asserted as the actual interest rate on LL bank account for receipt of rent. Because the law proscribes the actual calculation for liquidated damages on rental payments, their is nothing impracticable or extremely difficult. All case law stating that administrative costs are included do not withstand this point of law, as they do not address it.