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  1. #1
    Join Date
    Apr 2009
    Posts
    7

    Default What Does "Rent is Accelerated" Mean

    My question involves an eviction in the state of: Texas

    I have a tenant who is not paying rent starting the month of Nov., nor he is leaving. The tenant informed me about the situation that he is not going to pay and that he has nowhere to go at the end of October. I offered him $300 to move out by the end of first weekend (Nov 6), but he did not. I then offered him $200 to move out by the end of second weekend (Nov 12), but he did not. He kept on insisting to give him $200 before he moves out so that he can rent the truck, but I am not comfortable giving him the money in advance before he moves out. Long story short he is still in the house.

    In the meantime I have started the eviction process. I waited out the initial 4 days to make the rent late, then applied for the notice to vacate which was delivered by constable on Nov 7. Waited out 3 more days, and now I have got the date for hearing which is the end of Nov. But if he moves out sooner it is better for me.

    Anyway I plan on sending him a letter, to put pressure on him, stating that he now needs to move out by so and so date, or else I may proceed with the charges (in addition to eviction) including but not limited to the back rent (which is November's rent), late fee ($25 per day) etc. And I was looking at the lease (it is a standard lease) and in the DEFAULT section it says:

    "All unpaid rent which are payable during the remainder of the lease or any renewal period will be accelerated without notice or demand"

    I am thinking that "rent ... will be accelerated" means that the rent of all the remaining months which is up to Dec. 2012 (13 months) is due immediately upon default. If this is the case, the amount comes out to be over $20,000. He would surely be worried to see such an amount.

    My question is, is my understanding correct? Can I send him a letter that includes this kind of amount? I can refer to that section in the lease. Is there any consequence to mentioning this amount in the letter?

    Last thing I want is him bringing that letter into the court and somehow make it go against me on the hearing date for eviction case.

    It would be great if I can find an attorney to write that letter for me and send it out. That should scare him. Would an attorney do that? I am willing to pay $100 or so for that letter.

    Do you guys have any other suggestion that I can do at this point? Can I change the locks when he is not present?

    Please advice. I will really appreciate it.

    Thanks.

  2. #2
    Join Date
    Apr 2009
    Posts
    7

    Default Re: What Does "Rent is Accelerated" Mean

    Ok, looks like people don't want to read the whole thing. Please answer the following question only. What does this mean from the lease?

    "All unpaid rent which are payable during the remainder of the lease or any renewal period will be accelerated without notice or demand"

    I am thinking that "rent ... will be accelerated" means that the rent of all the remaining months which is up to Dec. 2012 (13 months) is due immediately upon default. Is this correct?

  3. #3
    Join Date
    Sep 2005
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    98,846

    Default Re: What Does "Rent is Accelerated" Mean

    Try this.

    Your lease sounds like it was written by a complete amateur, without any consideration of what might be allowed under Texas law. For example,
    Quote Quoting Texas Property Code, Landlord and Tenant, Sec. 92.019. Late Payment of Rent; Fees.
    (a) A landlord may not charge a tenant a late fee for failing to pay rent unless:

    (1) notice of the fee is included in a written lease;

    (2) the fee is a reasonable estimate of uncertain damages to the landlord that are incapable of precise calculation and result from late payment of rent; and

    (3) the rent has remained unpaid one full day after the date the rent was originally due.
    (b) A late fee under this section may include an initial fee and a daily fee for each day the rent continues to remain unpaid.

    (c) A landlord who violates this section is liable to the tenant for an amount equal to the sum of $100, three times the amount of the late fee charged in violation of this section, and the tenant's reasonable attorney's fees.

    (d) A provision of a lease that purports to waive a right or exempt a party from a liability or duty under this section is void.

    (e) This section relates only to a fee, charge, or other sum of money required to be paid under the lease if rent is not paid as provided by Subsection (a)(3), and does not affect the landlord's right to terminate the lease or take other action permitted by the lease or other law. Payment of the fee, charge, or other sum of money by a tenant does not waive the right or remedies provided by this section.
    Similarly, an acceleration clause in a residential lease is subject to being rejected as a penalty rather than a reasonable measure of liquidated damages. See, e.g., , which states as dictum (a statement made other than as part of the holding, and thus not a precedentially binding part of the decision),
    Quote Quoting In re United Merchants & Mfrs., Inc., 674 F.2d 134, 142 (2d Cir.1982), emphasis added
    In Fairfield Lease Corp. v. Marsi Dress Corp., 60 Misc.2d 363, 303 N.Y.S.2d 179 (Civ.Ct.N.Y.1969), a lessor of a coffee vending machine who took the machine back upon the lessee's default sought to enforce a clause in the lease agreement permitting it to accelerate all future rental payments. The court noted the distinction between the acceleration clause in this rental agreement, which brought due future payments before the lessor had furnished the consideration, and one in an ordinary loan agreement which merely accelerates payments for consideration already furnished. The court quite understandably found a clause of the former type to an unenforceable agreement for a penalty.
    I suggest consulting a real estate lawyer about the enforceabilty of your lease, and about getting one that you can be confident will be enforceable and won't potentially trigger statutory damages if you attempt to enforce its provisions.

  4. #4
    Join Date
    Apr 2009
    Posts
    7

    Default Re: What Does "Rent is Accelerated" Mean

    Quote Quoting Mr. Knowitall
    View Post
    Try this.

    Your lease sounds like it was written by a complete amateur, without any consideration of what might be allowed under Texas law. For example,

    Similarly, an acceleration clause in a residential lease is subject to being rejected as a penalty rather than a reasonable measure of liquidated damages. See, e.g., , which states as dictum (a statement made other than as part of the holding, and thus not a precedentially binding part of the decision),

    I suggest consulting a real estate lawyer about the enforceabilty of your lease, and about getting one that you can be confident will be enforceable and won't potentially trigger statutory damages if you attempt to enforce its provisions.
    Thanks for replying. I am not a lawyer and I could not think of "acceleration clause" as the search term. I did search on "rent will be accelerated means" but did not get anything suitable.

    Secondly I very much doubt that the lease is not in accordance to the Texas Law because it is Texas Association of Realtors' Lease.

    Thirdly the reference that you use to show that acceleration clause could result in penalty, is that from NY state?

    Thanks for trying to help though.

  5. #5
    Join Date
    Sep 2005
    Location
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    98,846

    Default Re: What Does "Rent is Accelerated" Mean

    If you grab a form, you can turn your brain off, with statutes and case law rendered irrelevant? And if you see a blank for late fees you can fill in any amount you want and it's magically okay because it's a form? Alrighty then, good luck to you.

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