Eviction Served~Check Arrives~Is There A Problem?
OK heres what happened. Rent is late by the 8th. I call. no response. I send letter on 11th outlining problem with rent, 2 dogs he newly aquired against the rental agreement and loud music played by his son in the common areas. Each point referenced a clause in the contract. Sent certified. I get call on 11th with "sorry, family emergency will pay on the 15th" I asked "Can I have your permission to come by your shop (owns his own biz) and pick it up on Saturday, I will be in town and I wont cash til the 15?" He says "absolutely". I show up and he says his 'attorney' advised him to mail it certified just as the letter was and that he will include a 30 day notice and he will bring the dogs to his shop and informs me everyone plays their music loud in the neighborhood. I said ok and left. Nothing on the 15th or 16th. On the 17th I post a 3 day quit or pay and a 3 day quit or perform covenant for the dogs. The 18th a call comes. "I am running to Post office right now to mail rent gotta go now" I said will you be including the 30 day notice to vacate? She says "no, gotta go" Click. On the 22nd at midnight the 3 day was up on both. The 23rd I drive up there and file unlawful detainer and the dogs are still there to boot. Today the 24th Check shows up for Rent (no late fee included of course) but its postmarked the 18th. I have a po box so I go in and have the postoffice post mark the date I recieved and the date that my post office recieved is already marked on the envelope of the 23rd. I didnt receive til the 24 so it was reasonable for me to file a UD. I made copy of envelope and had the post office copy my signature card with date and postmark. Will this screw my eviction case? I would think that when you send rent 10 days late AND are trying to meet a 3day legal notice that you would go the extra mile to send rent overnight. Will I be screwed because of the postal mark of mailing being before the 3day was up or is the burden on the renter to make a better attempt to meet that deadline. If my eviction for no payment is screwed can I refile for the breach of rental agreement ie. dogs? They are still there. Or If I give 60 days notice with no reason is that going to be considered retallitory? Or is slow rents (late 4 out of last 6 mos) justifiable reason for 60 days ( per contract i dont have to give reason) Im thinking i would be better off to give 60 days then persue the dog issue as Im already out for this filing fee ($139) but I dont want to be out more rent either???? Any insight? :-?
I thinkt that the ball may still be in your court. First, I beleive that it is up to you to decide if you will accept the late rent check. However, the way my leases are written is that all payments go towards late penalties first. Therefore if your lease is written the same way, the full rent has still not been paid and late fees should still be accruing.
Therefore I beleive that you still have grounds to evict, however you should consult your lease agreement.
Adam is right. If your contract states that late fees are part of your rent, then if they have not paid those late fees, they have not paid the full rent. This means that you have grounds to continue with the eviction process.
You should really speak with your lawyer to be sure. But don't cash that check before you speak with your lawyer. He may advise you to return the check in order to make your eviction case stronger.
If your contract is a month to month agreement, then you don't even need justification for terminating their tenancy. Just give them notice and hope they don't trash the place to much moving out.
[addsig]
Ok so how exactly is that clause about applying to your fees first worded. I do have a clause about fees but I had to list on the 3 day the actual rent....which is $50 higher than what they can pay provided they pay early. (early payment discount of $50).....i want to change it. I decided to stop the service of the UD and im going to call and tell them i sent back because they did not include the fees stated on the letter and Contract. If they say they arent paying the fee...I will tell them to send the check and once I've cashed it, a 60 day notice (been there over 1yr) will be sent out. and like already said Hope they dont trash it. Oh well live and learn. Im assuming that if the check bounces (hasnt happened before) that I can still proceed with eviction????
"All sums of money or other charges required to be paid by Tenant to Landlord under the terms of this Agreement, whether or not the same be designated "rent" or "additional rent", shall be deemed rent and shall be collectible as same."
Don't send back their check. Just hold on to it but don't cash it yet. Tell the tenants that you expect to receive an additional check with the remaining funds that they owe you. But please check with your lawyer to make sure that your plan is in line with your state re laws.
Good luck.
Unfortuantely eviction law varies greatly from state to state so i wouldn't necessarily trust the advice from anybody not in California in this one (including me)
My guess is you're ok but I'd get an attny who handles a lot of evictions in the county where the property is located. Landlords almost always win eviction suits. This creates a prejudice in the minds of judges over time against the tenants. (you see 200 deadbeats a day it gets hard to believe that this person infront of your bench isn't a deadbeat too.) This prejudice can be re-inforced if you use an attny who appears in the courtroom all the time. In almost every county there are guys who do evictions as the bulk of their practice. Hire one.
If the tenant has kept the dogs and you accept the check as rent would you not be saying okay to the dogs?
You need to continue with eviction on grounds of violation of lease. In CT when a tenant gives a check who is being evicted the receipt is marked "For Use and Occupancy" no one lives for free, allowing for the eviction process to proceed.
If you have a headache tenant you proceed. A friend of mine offers the last month rent back to the tenant if they are out of the house by a specified date to his pending foreclosures. He says it works everytime without protracted process. If you really don't mind the situation then accept the rent.
My policy is I could care less about late payments, I collect a decent late fee. Chronically late-paying tenants get a raise in the late fee each year. However, no tenants are allowed to stay if a new month comes and last month's rent is unpaid.
Never had to do an eviction, so it works for me.
late rent should not be tolerated on a regular basis, if in the habbit one day no pay.
they feel as if you can afford it.
I have to agree with J_owley, once they start they seldom stop.[ Edited by hoober on Date 04/12/2004 ]