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  1. #1
    Join Date
    Sep 2012
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    Default Landlord is Evicting for Nonpayment, Applied Payments to Late Fees Before Rent

    My question involves an eviction in the state of: California

    My landlord has served me with a 3-Day notice for the month of September. I had made a partial payment earlier this month of $900 against a $1200 total. When I received the 3 day notice today, I find that they have applied the $900 to outstanding late fees first, showing a much higher amount of rent due than the $300 balance. The notice shows a "rent due" amount of $466 instead of $300. And then there is a separate designation of "late fee" as $27.96. This would appear to be a "late fee" on the outstanding "rent" of $466 for August. But that would also mean that they are charging a "late fee" on an outstanding "late fee" since the actual rent outstanding is $300.

    So aren't they basically calling the late fees "rent"?

    Background: the building is rent stabilized under Los Angeles rent stabilization and they are currenty charging the maximum amount legally allowed. I have lived in the unit for 17 years. The original 1-year lease has a 6% late fee clause. The original management company designated in the lease no longer exists and the building is managed by a new company. I have been month-to- month for the last 16 years. When I have paid rent late in the past, I provide 2 checks: 1 marked rent, and one marked late fee. I was late July and August and have only paid the outstanding rent, not the late fees.

    So, in summary, is it proper and legal to apply rent payments towards late fees first?

    (Also, the 3-day notice was left on the floor outside of my front door. Does this constitute proper service of a 3-day notice?)

  2. #2
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    Default Re: Landlord is Evicting for Nonpayment, Applied Payments to Late Fees Before Rent

    Please quote the language from your lease governing late fees. In Los Angeles, a 6% late fee is perhaps a bit iffy, so you can try to defend against the fee in court by arguing that it's excessive.

    The fact that you're marking your checks in a particular manner does not necessarily mean either that the landord is or must apply the payments to your account in your desired manner. If you're simply making a note on the memo line, memos are for your benefit and are not contractually significant.

  3. #3
    Join Date
    Sep 2012
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    Default Re: Landlord is Evicting for Nonpayment, Applied Payments to Late Fees Before Rent

    Thank you for your response. Here is the information you requested:

    The lease reads as follows:

    4. Late Charge: A late fee not to exceed six percent (6%) of the monthly rent shall be added to any payment of the rent not made within 5 day(s) after the due date or which a deficient (bounced) check shall have been given.

    There is a second section which references late fees in an addendum to the lease:

    1. Rental Payment: Rent is DUE on the first day of each month. Rent RECEIVED after office hours on the 5th must include a late fee of 6% of the rental amount. Checks should include the late fee as required.

    Several sites seem to indicate that while you can be evicted for failing to pay rent, you cannot be evicted over late fees. Furthermore, they seem to indicate that a 3 day notice is not valid if it includes late fees in the amount owed (and my 3 day notice includes both a specific line item late fee as well as a hidden late fee in the "rent" line):

    http://forum.freeadvice.com/landlord...on-572029.html
    http://www.randslawgroup.com/Landlord_Tenant.html
    http://www.avvo.com/legal-answers/ca...s--143925.html

    I haven't been able to find a specific citation that supports this idea one way or the other, just general responses that state that these actions run contrary to the law in California.

    But if it is true that one can be sued in small claims court over late fees but can't be evicted over late fees, then my argument would be that the landlord is attempting to circumvent the law by deducting the late fees first. By deducting the late fees before applying the rent, and by not accounting for each separately, any outstanding balance is automatically considered "rent", subject to eviction, even if the exact dollar amount of the rent was presented on every single occasion. As each check has been for the very specific amount of the rent ($1220.40), it seems it would be difficult for the landlord to suggest that he believed the amount included the late fee but was deficient a portion of the rent!

    But all of this is predicated on finding some specific evidence that failure to pay late fees is not subject to eviction in Los Angeles.

  4. #4
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    Default Re: Landlord is Evicting for Nonpayment, Applied Payments to Late Fees Before Rent

    You contractually agreed to pay your late fees as part of your rent payments, so your attempt to circumvent your contractual agreement by issuing separate checks seems dubious. You can, of course, argue it to a court and see if it flies.

  5. #5
    Join Date
    Jan 2007
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    204

    Default Re: Landlord is Evicting for Nonpayment, Applied Payments to Late Fees Before Rent

    The answer to this is a simple bookkeeping one. Payments are applied to the oldest outstanding balance. If your payment doesn't cover any outstanding balance and any new charges (your rent). If this is the case, then the LL can file for eviction due to lack of payment.

  6. #6
    Join Date
    Sep 2012
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    3

    Default Re: Landlord is Evicting for Nonpayment, Applied Payments to Late Fees Before Rent

    Mr. Knowitall - thank you for the perspective. The effort isn't to circumvent anything, but to make sure that I am not evicted needlessly over something that the law does not allow for. While the law certainly allows for the legal collection of those fees, if it does not allow for eviction, then all the better. This will allow me to keep a roof over my head so that I can eventually earn the monies necessary to pay the late fees. I have not had a single late payment in the 17 years of my residency here until the company I worked for went under last year. If I am evicted, I am homeless, I am forced into bankruptcy, and the odds of ever recovering from the devastation of the last year of unemployment becomes nearly impossible. Every penny, every opportunity matters if I am to survive. And without family to rely on, the loss of my home would spell almost certain and permanent poverty and dependence on the state. I would rather avoid that, regardless of what Mitt Romney and the republican party may think.

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