Back Late Fees

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12-08-2011, 10:20 PM
charbella

Back Late Fees

My question involves an eviction in the state of: Delaware

I've been renting a privately owned town home for 4 1/2 years. I've never had any major problems or complaints until this past July. The window in the kitchen started to leak and so did the ceiling in one of the bedrooms. I notified the landlord of the leak in July, the ceiling leak didn't start until August and I notified her of that as well. The leak in the ceiling produced mold, which she was also notified of. Repairs did not get started until beginning of November and took approximately a week to complete. Per my interpretation of the landlord tenant code because repairs were not completed within 30 days of first reporting them, I deducted 2/3rds the rent for sept and oct, especially for what I consider to be "failure to provide essential services" due to the mold. The mold was confirmed by an environmental specialist.

The landlord sent me an email this past Saturday requesting that I pay the remainder of the rent because I withheld it illegally and also that I have to pay back late fees from 2/2009-8/2011. I have been on a month to month lease(nothing in writing) since 2008 when the written lease expired. In Jan. 2009 I requested a reduction in rent for a few months and was granted the temporary reduction and also per email stated " just make sure you get it all in by the end of the month". From that moment forward I utilized that as my "new" due date. I had not prior to her email last Saturday received any 5 day late notices or summary of possession notifications. She sent the email after she received my November rent(which was in full because repairs were now completed) just so she could assess another late fee.

Last September I requested a payment history, because she does not report my payments to the credit bureaus. She replied that she would have that information for me in two days...I still have not received that information, but she could have informed me then about the late fees. I did agree to pay the back rent because I thought perhaps I interpreted the code incorrectly, but after further review of it, I don't think I have. She indicated in her email that if payment for the late fees is not received within 20 days that she may proceed with summary of possession.

I would like to know does she have grounds to collect these past late fees even though for 2 years she did not send any notification. I believe that she is having financial difficulties and she's trying to recoup some money to cover the costs of the repairs. I don't think it's fair that she's resorting to retaliatory extortion in order to that. Please let me know what I can do. I have contacted the Attorney General, but have not heard back from them yet. I don't have anywhere that I can go at this time. I'm also concerned that because of this that she is not going to give me a favorable reference if and when I can move.
12-08-2011, 10:35 PM
Disagreeable

Re: Back Late Fees

You should not expect a good reference after trying to take financial advantage of a previously amicable business relationship for a few hundred dollars. What response did you expect after stirring the pot, a Merry Xmas and Happy New Year card? I don't see that the landlord failed to provide an essential service, allowing you to make a rent deduction. I don't see that the landlord has committed any retaliatory prohibited acts. IMO, you are just screwed all over. Here is a link you might find helpful.

http://attorneygeneral.delaware.gov/...ndlordcode.pdf
12-09-2011, 06:27 AM
Mr. Knowitall

Re: Back Late Fees

Quote:

Quoting Delaware Code, Title 25, Property, § 5307, Tenant's remedies relating to the rental unit; repair and deduction from rent.

(a) If the landlord of a rental unit fails to repair, maintain or keep in a sanitary condition the leased premises or perform in any other manner required by statute, code or ordinance, or as agreed to in the a rental agreement; and, if after being notified in writing by the tenant to do so, the landlord:

(1) Fails to remedy such failure within 30 days from the receipt of the notice; or

(2) Fails to initiate reasonable corrective measures where appropriate, including, but not limited to, the obtaining of an estimate of the prospective costs of the correction, within 10 days from the receipt of the notice;
Then the tenant may immediately do or have done the necessary work in a professional manner. After the work is done, the tenant may deduct from the rent a reasonable sum, not exceeding $200, or 1/2 of 1 month's rent, whichever is less, for the expenditures by submitting to the landlord copies of those receipts covering at least the sum deducted.

(b) In no event may a tenant repair or cause anything to be repaired at the landlord's expense when the condition complained of was caused by the want of due care by the tenant, a member of the tenant's family or another person on the premises with the tenant's consent.

(c) A tenant who is otherwise delinquent in the payment of rent may not take advantage of the remedies provided in this section.

(d) The tenant is liable for any damage to persons or property where such damage was caused by the tenant or by someone authorized by the tenant in making said repairs.

Further explained in this guide,

Quote:

Quoting Minor repair and deduction from rent. (§5307)

a. A landlord must start efforts to correct defective conditions within ten (10) days of being notified by the tenant of the defect and must remedy the condition completely within thirty (30) days. If the landlord fails to repair, maintain, or keep the rental unit in sanitary condition, or fails to perform any duty required by Code or ordinance after being notified in writing by the tenant to do so, the tenant may complete the repair and deduct the lesser of one half of one month's rent or Two Hundred Dollars ($200.00).

The tenant may not deduct any amount if the tenant, his or her family or anyone on the premises with permission of the tenant caused the condition. The tenant may not deduct any amount if he or she owes rent.

b. Wrongful deduction or withholding from rent.

Withholding rent or deducting from the rent has some risk for a tenant. If the tenant with holds rent or deducts from the rent and the Court Finds that the withholding or deduction was wrongful, the Court can either grant the landlord possession of the rental unit or enter a judgment against the tenant for the amount wrongfully withheld or deducted. lf the Court finds that the withholding was done in bad faith, the Court can grant the landlord damages of double the amount withheld by the tenant. If those damages are not paid, the Court can then enter a judgment for possession by the landlord without any further notice to the tenant.

In other words, your deductions were not lawful - you did not complete the repair and you deducted far more than the statute allows even had you done so - and your failure to pay rent constitutes grounds for eviction.

Most mold is harmless, save perhaps for potentially making you sniffle and sneeze if you have allergies. Did your "environmental specialist" inform you that this was a harmless mold, such as mildew? This mold was in the room space, such that it could affect you, or sealed behind the plaster where it could not? It was visible in the ceiling plaster as discoloration, or are we talking about something else?

You have no right to unilaterally change the due date for your rent. You were given a break - that was not license to pay your rent late every month thereafter. If the landlord never mentioned during the close to two year period that your rent was late, though, with no demand for late fees having been made, you would be able to try to argue to the court that the due date was modified by the landlord's presence and/or that the late fee provision was waived.

You are only liable for late fees if they're set forth in your written lease / rental agreement. However, the mere fact that the original lease term expired does not mean that its terms aren't binding on the continuing month-to-month tenancy. Review the lease language.

Quote:

Quoting Delaware Code, Title 25, Property, § 5501. Tenant obligations; rent.

(a) The landlord and tenant shall agree to the consideration for rent. In the absence of such agreement, the tenant shall pay to the landlord a reasonable sum for the use and occupation of the rental unit.

(b) Rent shall be payable at the time and place agreed to by the parties. Unless otherwise agreed, the entire rent shall be payable at the beginning of any term for 1 month or less, while 1 month's rent shall be payable at the beginning of each month of a longer term.

(c) Except for purposes of payment, rent shall be uniformly apportioned from day to day.

(d) Where the rental agreement provides for a late charge payable to the landlord for rent not paid at the agreed time, such late charge shall not exceed 5 percent of the monthly rent. A late charge is considered as additional rent for the purposes of this Code. The late charge shall not be imposed within 5 days of the agreed time for payment of rent. The landlord shall, in the county in which the rental unit is located, maintain an office or other permanent place for receipt of payments, where rent may be timely paid. Failure to maintain such an office, or other permanent place of payment where rent may be timely paid, shall extend the agreed on time for payment of rent by 3 days beyond the due date.

(e) If a landlord accepts a cash payment for rent, the landlord shall, within 15 days, give to the tenant a receipt for that payment. The landlord shall, for a period of 3 years, maintain a record of all cash receipts for rent.