Can You Avoid Eviction for Nonpayment if Your Landlord Always Accepts Late Rent

[trickyspiffy]

My question involves an eviction in the state of: Louisiana

A few years ago I got laid off and have had to take a job for significantly less money and its been very hard for me to pay my rent on time. Every month from around November of 2009 until last month, June 2011, I have paid my rent extremely late and they have always let me. I have always paid to the penny every dime they wanted and have been appreciative of them letting me pay late. I always ask and make a payment arrangement to pay all my rent by a certain date and I have always paid what I said I would , when I said I would. This month the property manager will not accept the date I asked her for and has said she's going to evict me. This has become pretty routine for me every month and in her words "whenever you need to pay it late, just let me know when and as long as you pay your rent and the fees, it will be fine". I havent asked for some unrealistic date either, I am asking to pay on the same day of the month I've paid on repeatedly. I understand that they are well within their rights to evict me, but I wonder if I have any recourse seeing as how they have accepted my late rent for so long.

I know they will file the eviction, but I do not want to have to actually move. I have NO idea how evictions work since this has never happened to me before, but I want to know that if I have to go to court to fight this, will that fact be helpful?

[Mr. Knowitall]

If you are served with a three day "pay or quit" notice, your choice is to pay, move (and deal with the consequences of abandoning your lease), or see if they commence an eviction action if you do not pay. It will not be helpful to you that your landlord has tried to work with you while you get back on your feet but it now tired of getting late payments and worrying if you're going to come through with the rent money at all. If you are a tenant and "do not want to have to actually move", you do need to pay your rent.

[trickyspiffy]

Though I appreciate your cheerful response, after speaking to an attorney and several property managers today, I have to slightly disagree. As I said before, I am aware that they are well within their rights to evict me if I don't pay my rent on time, but according to the people I spoke with, it does sway in my favor that they have consistently accepted my rent late.

Since they have habitually taken my rent late I had a reasonable expectation to believe I could continue that practice until they told me otherwise which they have not. When an eviction is filed I will be assigned a court date and (unless they accept my late rent before the date of the hearing) I get to go in front of a judge and state why I believe I should not be evicted. From what I've been told, the fact that they have willingly cashed my rental payments at later dates repeatedly over the past 22 months is a pretty strong argument in my favor. The property manager I spoke with this morning told me that she has personally had to go to court for evictions under these same circumstances and in all the cases the judge ruled in favor of the tenant and the eviction was not granted.

Furthermore, in the state of Louisiana (I'm not sure about other places) since I have a year lease they cannot evict me without a court decision so when and if I get served with an eviction notice, it just means that they are attempting to evict me and I don't have to leave until the judgment is passed down in which case I'd have anywhere between 24 hours to 30 days to physically leave the apartment depending on the landlords stipulations. There is no "three day pay or quit notice" in this state.

A lease, like any other contract, requires both parties to hold up their side of the deal. The fact that my landlord took my rent at a later date than the lease implies that the landlord gave up the requirement of the date on the lease. That information came from a licensed real estate lawyer who is a family friend.

Furthermore, the secretary of the property management company that runs my complex informed me that if they serve me with an eviction notice they will generally still accept my late rent under the condition that I pay them an extra fee (apparently this is a standard practice). The time I have to pay will fall from the time they serve me with the notice to go to court and the court date, which, according to her is generally 7 days. My lawyer informed me that the threat of eviction is just probably a ploy to bilk more money out of me on top of the late fees they are charging, and that they realize that a judge would probably lean in my favor.

I know that it is not responsible of me to pay my rent late and the property management here is taking a risk by letting me pay late repeatedly, but I think they have a pretty logical reason to believe that I would pay when I said I was going to because I have done it consistently for the last 22 months.

From what I've learned today I feel that I have a pretty good chance of staying in my apartment. If I pay them the extra fee to stop the eviction I won't have to appear in front of a judge, and even if I do I seem to have a strong argument that I had a valid reason to assume that I could pay my rent late.

In conclusion, I don't think I'll end up "having to actually move". I appreciate your patronizing input anyway.

P.S. Today I also discovered a few websites that basically explain it the same way.

Like this one http://www.rentlaw.com/eviction/louisianaeviction.htm

[cyjeff]

Since they have habitually taken my rent late I had a reasonable expectation to believe I could continue that practice until they told me otherwise which they have not.

Didn't you say...

This month the property manager will not accept the date I asked her for and has said she's going to evict me.

Seems like you have been given that notice.

Even if you are not evicted THIS month, you are going to have trouble next unless you expect to be able to start paying on time.

According to the site that YOU posted...

A landlord generally does not have to accept late rent unless it was within a grace period. The landlord may refuse the rent and sue you for eviction. If he later accepts the rent or had a custom of accepting late rent, you may have a defense to an eviction for nonpayment of rent

The landlord would simply have to refuse your late payment (which you said she did). While I will agree it is not a slam dunk on either side, I don't think you can count on being able to change the contract through habitual tardiness forever.

[trickyspiffy]

Yes, her telling me this month that she would not accept my rent will in fact mean that they don't have to accept it next month and I never disputed that. I am also aware that next month will be a different story but that is completely irrelevent to what I was asking. My lease expires in three more months and I will be moving somewhere that costs less, which I would have done sooner if I wasn't stuck in a two year lease. Also, I have discussed that with the property manager and she knows I am planning to move.

I was not seeking a "slam dunk" in any form or fashion, my question was simply if given the fact that they accepted the rent late repeatedly, there was a chance I would not end up on the street. I'm not trying to count on anything. The landlord refusing my late payment this month does not null and void the fact that they repeatedly accepted it late for years beforehand. I wasnt trying to change the contract or count on "habitual tardiness" forever. I'm not thrilled with having to pay bills late, and I certainly would like to have avoided this entire situation, but it is the way it is currently and I'm doing what I can to remedy the situation.

I think I will rely on the advice of the lawyer and the property manager I spoke with today. I asked a question and you gave me an incorrect answer and paternal remarks about my financial situation and that's not what I was seeking.

[cyjeff]

"the landlord refusing my late payment this month does not null and void the fact that they repeatedly accepted it late for years beforehand."

Correct.

Just as correct is the statement "your refusal to pay on time doesn't automatically amend the contract to allow you to not have to pay on time."

What I was trying to point out to you is that we can't predict this one... and neither did the people you talked to. They said that they had seen cases that went one way... which means they also saw cases that went the other. There are too many variables present in the judicial process to give you a definitive answer.

And, apparently, if we don't, you cop an attitude. Pay an attorney. Good luck. Make sure you bring this little "I should be allowed to pay whenever the hell I want because my LL helped me out when I needed it" attitude with you. That will help tons.

Start with this. When the judge asks you if you have EVER paid on time in the last 18 months, what will you say?

[markk1pe]

Have you checked your lease contract? Most contracts have a clause that states that just because a LL does not enforce any portion of the lease does not mean he can not later start enforcing it (in other words, failure to require compliance shall not be deemed as a WAIVER of any rights or conditions of the lease). If that is in the lease your defense will fail.

Besides, if you force the LL to file an eviction, that will go on your record, no matter if you win or lose your case. If I see an eviction on any background check then I contact the Plaintiff and get the whole story, then I confront the potential tenant. In your case, if I found you were habitually late and also forced an eviction, you would not be considered any further. So even if you win, you lose.

I recommend you avoid the eviction. Go live under a bridge if you have to, or put your things in storage and rent a room from someone until you can catch up on your finances.

Ask the LL if they will let you out of your lease and give you a recommendation in exchange for them avoiding having to file the eviction.

[shelbydakota]

A lease, like any other contract, requires both parties to hold up their side of the deal. The fact that my landlord took my rent at a later date than the lease implies that the landlord gave up the requirement of the date on the lease. That information came from a licensed real estate lawyer who is a family friend.

And part of that contract will state when you are to pay and how long you have to pay, so in short, YOU are the one not holding up your side of the deal. And no, the fact that you pay late and your ll is accepting does not change your contract in any way, shape, or form. They've given you 22 months (your words) to get back on your feet. And please do your math...if you had a 2 year lease agreement (24 months) and you've been paying late for 22 months and you still have 3 months left, I must ask, did you lose your job before you got this place because 22+3=25. How would you like it if your boss consistently paid you late for 22 months? You wouldn't.