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TJ, Esq.
TJ, Esq., Attorney
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Experience:  Licensed to Practice Law
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My rent is due on the first of each month but I usually pay

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My rent is due on the first of each month but I usually pay between the 7th and 10th. I have lived in this location for approximately 18 months. Today i received a "statement" for sept - oct 25 2013 with a beginning balance of almost 2000, rent due/rent paid for sep and oct both with a late fee and administrative fee.

Outlined in "unpaid charges" below the current charges are my late fees ($45) for each month it was late and a corresponding administrative fee ($90) for each late fee. Yes, i believe both are in the lease agreement. My is though, while my behavior indicates a clear pattern, would not the landlords lack of contacting me to resolve billing since 6/2012 indicate some sort of acceptance of this behavior?

Also, does the total effective late fee of $135 amount to an unreasonable fee? I am in the state of Alabama.
Submitted: 9 months ago.
Category: Legal
Expert:  TJ, Esq. replied 9 months ago.
Hello and thank you for the opportunity to assist you. My name is XXXXX XXXXX I will do my very best to answer your legal questions.

Yes, I agree with you. I believe that the landlord essentially waived his right to collect a late fee by continuing to accept rent the following month with no mention of the late fee. In my opinion, a judge would side with you if this ends up in court. It is wholly unfair for the landlord to ignore the late fee each month, and let you continue to pay rent late each month thinking that there is no extra charge, and then suddenly spring a huge bill on you over a year later. Had you known that the late fee would be enforced, you likely would have paid on time. The pattern indicates that the landlord waived that particular provision in the lease.

With regard to the $135 fee, whether or not it's reasonable depends on the amount of rent. As a general rule, I've found that courts will allow late fees up to about 15%. So, the fee is likely okay as long as your monthly rent is $900 or greater. If your rent is less than that, then the late fee would likely be considered an unenforceable penalty. Briefly: Penalties are not allowed in contract law. A party is limited to collecting damages (i.e., reimbursement for harm caused by a breach). However, the parties may agree upon damages for a breach in advance (called liquidated damages) when it's difficult to determine the amount of harm caused by a breach. If you pay rent late, then there is no doubt that the landlord is harmed ... but quantifying that harm is difficult. So, a late fee in a lease is basically just an agreement between a landlord and tenant that the damages will be $X (i.e., whatever the late fee is). But, if it's an unreasonable amount, then it may be considered a penalty disguised as liquidated damages, and that is unenforceable.

Does that answer your question? Please let me know if you need clarification, as I am happy to continue helping you until you are satisfied. Also, your positive feedback is greatly appreciated. Thank you for using our service!

If you would like to direct additional legal questions to me in the future, then please type "To TJ, Esq." in the subject line of your question.
Customer: replied 9 months ago.
Thank you, TJ. That gives me peace of mind for at least the start of the discussion.

Clarification then. Is a $90 administrative fee on a $45 late fee considered reasonable? Even if i agreed to it in a lease?

The total of 135 would be exactly 15%. ---
.... Is there any part of it that smacks of "punishment".
(Probably not in alabama! But i gotta ask.)

Thanks again.
P.
Expert:  TJ, Esq. replied 9 months ago.
Hi again.

The $90 charge on the $45 late fee is likely reasonable since both fees combined are what's important. In other words, I think a judge would just view the late fee as $135, and make his ruling based on that.

The fact that the $135 is exactly 15% seems to indicate that the landlord is aware of what is reasonable. I think a judge would find the fee reasonable rather than a punishment/penalty.

But again, I don't think the landlord can charge you for past months. He waived them. Moreover, you can probably successfully argue that he waived the late fees for all future months as well, so long as you pay within the same time frame as always (i.e., by the 10th). The failure to enforce the late fees should be a waiver of that clause in the lease ... at least as it pertains to being 10 days late.
TJ, Esq., Attorney
Category: Legal
Satisfied Customers: 9660
Experience: Licensed to Practice Law
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Customer: replied 9 months ago.

I understand. both parts make sense.


Thank you very much.


appreciatively,


p.

Expert:  TJ, Esq. replied 9 months ago.
You are quite welcome. Thank you for using our service!
Expert:  TJ, Esq. replied 9 months ago.
Hi again. I just wanted to check in to see how it went with your landlord.

Thanks again for using our service!

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