Monthly Archives: April 2015

Dealing With The Chronic Late Payer

by Harry Anthony Heist, Attorney at Law
It is inevitable that you will have a chronic late payer. Every excuse in the book is given by the tenant for the tardy payment, but the payment always comes, sometimes with the late fees, sometimes without. You may inherit a later payer from a self-managed property or a prior management company. Is a tenant always allowed to pay late? Can you evict a late payer? Is there any way to tell a tenant to shape up or ship out, or will you be destined to always accept late payments?

Is a tenant allowed to pay late?

The short answer is “yes”. There is nothing in Florida law that allows you to evict tenants because they pay late. You can evict a tenant if she does not pay at all, but paying late is not prohibited. Regardless of what your lease may provide, if a tenant wishes to pay late, she may. There is a built in grace period under Florida law of three days, not including Saturdays, Sundays or legal holidays. If a tenant fails to pay the rent according to the due date of your lease, you must serve the tenant with a Three Day Notice which gives the tenant the opportunity to pay you within that period of three days. This is in essence a “grace period”. Without serving the tenant that Three Day Notice, there is nothing you can do to terminate the tenancy for nonpayment of rent. No provision in your lease can override the fact that a tenant is entitled by law to receive a Three Day Notice from you, and is allowed by law to pay you the rent if the notice has not yet expired.

We want to get the chronic late payer out!

My usual response to this request is to tell the landlord to be glad to have a tenant who pays, albeit somewhat late. Times are tough right now, and anything a landlord can do to keep a tenant is advisable. However, there will be times when the landlord does not want the uncertainty of getting the rent late, or is tired of having to serve a Three Day Notice on the tenant every single month, and wants the tenant out. If the tenant pays the rent within the Three Day Notice timeframe, no matter how angry or frustrated the landlord is, the tenant can stay and pay as long as the notice has not expired. The landlord’s only recourse is to non-renew the tenant at the end of the lease, or if the lease is currently month to month, non-renew the month to month tenancy.

The tenant does not pay within the Three Day Notice period

This is a different story. If the tenant does not pay within the Three Day Notice time frame, Florida law allows the landlord to terminate the tenancy. This sounds easy enough. The tenant is given a Three Day Notice and fails to pay within the time frame allotted. The landlord then files an eviction, and the tenant is evicted from the premises. It would seem perfectly legal. The tenant is chronically late, the landlord has had it, the tenant does not pay and therefore is evicted. If the tenant is in “new territory” by finally failing to pay within the three-day notice period, the landlord will have a strong case. However, it is often not that simple. The fact that the tenant has paid rent late so many times actually put the tenant in better standing in court, if the landlord has accepted rent after the expiration date of prior Three Day Notices. The landlord could also have problems in court if the Three Day Notice that finally “snares the tenant” is delivered earlier in the month than normal.

The tenant beats an eviction because he has always paid late?

While some judges are extremely strict and will evict a tenant if the tenant fails to pay within the Three Day Notice period no matter what the tenant’s excuse may be or the tenant’s past payment history, be it prompt or tardy, if a tenant can prove to a judge that he has been paying the rent late, after the expiration of the Three Day Notice, and the landlord has been accepting the rent late, the tenant may be able to prevail in court. This seems to go against logic. A tenant who pays the rent late is certainly not a good tenant. That tenant has blatantly violated the lease terms and caused extra work and worry for the landlord. The issue here is waiver. The landlord, by accepting the rent late time and time again has potentially waived his rights to enforce the terms of the lease. By his own actions, the landlord has modified the terms of the lease.

What is waiver?

If you know that a tenant has a pet in violation of your no pet policy, but you do absolutely nothing about it for months, you will have possibly “waived” your rights. The same would apply if there were unauthorized occupants in the unit and the landlord did nothing. Any noncompliance that the landlord ignores or “tolerates” for some time can result in the landlord waiving his rights. The exact same waiver can occur with late rent payment. The landlord thinks his case is better because the tenant looks “bad” in court, but actually it will be the landlord who will be at a disadvantage in court.

Can “waiver” be overcome?

If the tenant has been chronically late, does this mean you can never evict or must tolerate this late payment forever? Probably not, but you must notify the tenant that late payments, although accepted in the past, will not be tolerated in the future, and the tenant can be subject to eviction if the payments are not made within the Three Day Notice time period. Essentially it is a “shape up or ship out” type of notification. We recommend this type of notification is done in writing, by regular mail and certified mail, and at least 30 days before the next monthly rent payment is due.

Sample Wording
LATE RENT PAYMENTPOLICY, WARNING AND NOTIFICATION
DATE ________________

TO __________________________
ADDRESS ____________________ Dear Resident:

According to our records, you have not been paying your rent according to the due date which is ________________ (insert date).

While we may have accepted these late payments in the past, this letter shall serve as notification that in the event you do not pay according to the stated due date on your lease, you may be subject to receiving a Statutory Three Day Notice. If the rent is not paid within that notice period, we may opt to refuse your late rent and file for eviction ANY time thereafter. In the event we file an eviction, we may elect not to stop the eviction, or if we decide to do so, you will incur additional attorney’s fees, late fees and costs.

It is imperative that you pay your rent according to the lease terms from this point on.

Please feel free to contact us should you have any questions.

Very truly yours _______________________

Name of apartment community, management company etc.

Will this “shape up or ship out” letter work?

There is a good chance that this type of letter can overcome a waiver defense by a tenant. There is no solid guarantee, but it is better than nothing. Remember that in order for the tenant to raise a defense of waiver, the tenant first must know that he has this defense, and in most cases must place the rent into the court registry. This minimizes the risk you have, but if you are managing property for others, you will often be inheriting tenants with inconsistent and late rent payments.