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CalAttorney2
CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10244
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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I am located in California and have a fixed term lease which

Customer Question

I am located in California and have a fixed term lease which expires on Nov 7th 2015. The landlord had an attorney send me a letter 15 days before the expiration advising she is not renewing the lease and I need to vacate the premises. My rent is paid up to Nov 7th and they have told me they will file an unlawful detainer if I am not our by Nov 7th.
There a very few places to rent in our area and I advised her I would pay Nov rent while looking for a place to move to. This is unacceptable to her so I expect to have the unlawful detainer filed against me.
I have an issue with the late fees charged me throughout the term of the lease which is $10 a day. Even if partial rent is late the $10 still applied. To date I have paid $750 in late fees and want to have the unlawful liquidated damages case heard with the unlawful detainer. How can I do this?
Or, can I file a separate case for the unlawful liquidated damages which will hold up the unlawful detainer? Again, I owe no back rent the owner just wont renew the lease. Should I have had a 30 or 60 day notice even though the lease states it expires on Nov 7th 2015 with no provision to renew?
Please advise.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

I am sorry to learn of this situation.

You have 2 different issues here:

  1. The landlord's notice to terminate your lease. 15 days is insufficient notice. See: http://www.dca.ca.gov/publications/landlordbook/terminations.shtml
  2. The late fees. Late fees apply whenever the rent is not paid in full. Late fees can be charged as follows:

    Late fees and dishonored check fees

    A rental agreement cannot include a pre-determined late fee. the exception to this rule is when it would be difficult to figure out the actual cost to the landlord caused by the late rent payment. even then, the pre-determined late fee should not be more than a reasonable estimate of costs that the landlord will face as a result of the late payment. A late fee that is so high that it amounts to a penalty is not legally valid 110

    Additionally, in some communities, late fees are limited by local rent control ordinances. (See Rent Control.)

    What if you've signed a lease or rental agreement that contains a late-fee provision, and you're going to be late for the first time paying your rent? If you have a good reason for being late (for example, your paycheck was late), explain this to your landlord. Some landlords will waive (forgive) the late fee if there is a good reason for the rent being late, and if the tenant has been responsible in other ways. If the landlord isn't willing to forgive or lower the late fee, ask the landlord to justify it (for example, in terms of administrative costs for processing the payment late). However, if the late fee is reasonable, it probably is valid; you will have to pay it if your rent payment is late, and if the landlord insists.

    The landlord also can charge the tenant a fee if the tenant's check for the rent (or any other payment) is dishonored by the tenant's bank. (A dishonored check is often called a "bounced" or "NSF" or "returned" check.) In order for the landlord to charge the tenant a returned check fee, the lease or rental agreement must authorize the fee, and the amount of the fee must be reasonable.

    For example, a reasonable returned check fee would be the amount that the bank charges the landlord, plus the landlord's reasonable costs because the check was returned. Under California's "bad check" statute, the landlord can charge a service charge instead of the dishonored check fee described in this paragraph. Theservice charge can be up to $25 for the first check that is returned for insufficient funds, and up to $35 for each additional check.111

    Partial rent payments

    You will violate your lease or rental agreement if you don't pay the full amount of your rent on time. If you can't pay the full amount on time, you may want to offer to pay part of the rent. However, the law allows your landlord to take the partial payment and still give you an eviction notice.112

    If your landlord is willing to accept a partial rent payment and give you extra time to pay the balance, it's important that you and the landlord agree on the details in writing. The written agreement should state the amount of rent that you have paid, the date by which the rest of the rent must be paid, the amount of any late fee that is due, and the landlord's agreement not to evict you if you pay the amount due by that date. Both you and the landlord should sign the agreement, and you should keep a copy. Such an agreement is legally binding.

    http://www.dca.ca.gov/publications/landlordbook/living-in.shtml

While you can assert your rights in a defensive position (wait for the landlord to file an unlawful detainer and then file your appearance in court (if you take this course, or if the landlord does in fact file an unlawful detainer, use this link: http://www.courts.ca.gov/selfhelp-eviction.htm it will give you forms and procedure to defend yourself)), I recommend trying to be more proactive - you can try to mediate the dispute with them - contact your local bar association and request referrals to mediators, a third party neutral can often help you reach a mutually agreeable resolution. Use the bar association's referrals to contact a mediator or two, the mediator will then contact the other party to set up a mediation session, and you can go from there - hopefully resulting in a formal or written settlement agreement, and save yourself the time and expense of litigation.