I am a 25 year old woman who has been living in a rent-controlled apartment in a six unit building for about 1.5 years.  My apartment is three bedroom, two bath and I share it with two other roommates.

I mailed my rent check in the mailbox on the day it was due, but since it was on a weekend it didn’t get postmarked until that Tuesday (the 4th) and received on the 6th.  My landlord is now trying to invoke the late fee clause of our lease, which is $150 fee, to be included in next months rent.

He claims that I can just mail my check two days before the 1st to have it arrive on time. But this is just not possible for us since my roommates and I receive our paychecks at the end of the month.  My roommates write checks to me (well, we use Venmo) and I send in one master check. They need their paycheck to pay me, and I can’t cover their rent alone without potentially bouncing a check.  Therefore, we really can’t put our check in the mail before the last of the month.  I have requested in the past to allow us to pay our rent electronically but he has ignored this request.

My first question is, are late fees legal if they are included in the lease and, if they are, is $150 considered a legal amount or egregious for this time frame and a $3820/rent?  Bonus question: is there any way I can force him to accept electronic payments?  I would like to not stress about this happening again and save money on stamps and envelopes.

In the past several months I’ve received many more calls from tenants about late fees and rent payment methods, leading me to believe that some landlord “working group” decided to focus on this method of tenant harassment. S.P.O.O.K.S.?

As usual, they got it wrong. If the landlord only provides one option to deliver the rent, and that is mailing it, your payment is “conclusively presumed” to be accepted on the date of mailing.

If the address provided by the owner does not allow for personal delivery, then it shall be conclusively presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and address provided, the notice or rent is deemed receivable by the owner on the date posted, if the tenant can show proof of mailing to the name and address provided by the owner.

(I am not a fan of bank-generated checks that are supposed to arrive on a given date. I have consulted with quite a few tenants whose landlords genuinely claimed that they weren’t receiving the rent on time despite that fact that the tenant had scheduled automatic payment a few days before the first.)

Ken Carlson, tenant lawyer, and proprietor of the website, California Tenant Law, has an interesting take on late fees. Mr. Carlson makes a convincing argument that late fees are simply illegal.

Late fees are liquidated damages, damages that the landlord in this case, suffers because the rent is paid late. Because they are difficult to quantify, the landlord and tenant can agree to an amount that will compensate the landlord for his damages ahead of time. When the fee is paid, the damages are liquidated (concluded, finished, paid.)

Civil Code §1671 deals with with the validity of liquidates damages provision in a contract. Section 1671(c)(2) provides:

The validity of a liquidated damages provision shall be determined under subdivision (d) and not under subdivision (b) where the liquidated damages are sought to be recovered from […] [a] party to a lease of real property for use as a dwelling by the party or those dependent upon the party for support.

Section 1671(d):

In the cases described in subdivision (c), a provision in a contract liquidating damages for the breach of the contract is void except that the parties to such a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.

Check your lease, if there is no provision in which you agree that “the amount which shall be presumed to be the amount of damage sustained by a breach thereof” or similar language, then the late fee is void.

Many leases, however, have such language. Then you move to the second part of Mr. Carlson’s argument–that late payment damages are not impracticable or extremely difficult to fix.

Civil Code §3302 defines money payable with interest:

The detriment caused by the breach of an obligation to pay money only, is deemed to be the amount due by the terms of the obligation, with interest thereon.

Mr. Carlson states:

That interest is the “legal rate” of 10% per year, without compounding, or 1/3650 th of the monthly rent per day. On a $1000 monthly rent, that’s 27 cents per day, or $1.92 per week.  The word “deemed” in this statute is significant. It means that even if the landlord claimed personal injury by furrowing his brow and gnashing his teeth over your late payment, pain and suffering over his deep grief that he would have to cover the mortgage out of his savings, paper and processing costs from having to write you a 3-day notice to pay or quit, the LAW says he’s only suffered and is only due the unpaid amount and the few paltry cents of interest.

In your example, your rent was three days late. Using Mr. Carlson’s example (divide $3,820 by 3650), your late fee would be approximately $1.05 per day or $4.15 for three days.

You may want to send your landlord this article with a check for $4.15 and tell him that you’re genuinely concerned that teeth-gnashing and brow-furrowing may be bad for his health.

I had a chaotic experience the first time moving into an apartment. We were first told by the onsite manager that we got the apartment, only to be told (after paying $120 application fee) that we might not pass since most of us are international students and we have no credit.

The property management told us the only way to rent to us was for us to find a guarantor, and on top of that he /she needs to be a home owner. After pulling all connections we found someone who would do that for us. When we signed the agreement we were told initially that if we want to move out prior to the end of the lease, we would need to tell them and then they, with our co-operation would try to find another tenant. Should a new tenant pass the application process then it would be ok to move. Now we are trying to relocate since my mother’s health is failing and she needs to move in with me.

Yesterday I called them to tell them we had to move. They told us that to help us advertise, it would cost us $895. I also received this email today:

You are allowed to find someone that is interested on your own. A friend or acquaintance. If they like the property they can call me and then submit an application and go through the acceptance process. If they qualify we can move forward. You may not advertise the property for rental.

I don’t understand. How am I suppose to find someone to move into my place if I cannot post anything saying I need to find someone to rent it? We were also forced to buy renter’s insurance for our property as condition of rent. Is this what renting are like in America?

This is a typical scam used by lazy landlords to guarantee their income without doing a lick of work. While the landlord may want you to think he owns you, he doesn’t. You can move whenever you want to, but you may be liable for damages to the landlord for breaching your lease.

These situations happen all the time. Tenants have to break their leases to deal with emergencies, job changes or simply because the unit wasn’t what it was cracked up to be.

When you choose to move and to technically breach your lease, the landlord has the duty to mitigate (lessen) his damages.

What are a landlord’s potential damages? If you signed a year lease and you want to move after six months, the landlord has an expectation that he would receive the same rent as you pay for the next six months. These are called “expectation damages.” He must mitigate those damages by renting the unit for the same amount as you were paying, not more. If the landlord can only rent the place for $100.00 less than you paid, he would incur $600.00 in expectation damages and you would be liable for those damages. The landlord might also incur costs to re-rent the unit. You mention a potential cost–advertising. Other costs can include reasonable payment to a rental agent or expenses incurred in re-keying a unit, etc. You may be liable for those costs, if the landlord can prove he spent the dough.

You are not responsible for finding another tenant. Period. That’s the landlord’s job! If he doesn’t try to find another tenant he is not mitigating his damages.

You should simply give your thirty-day notice (in writing) and move. Please don’t call them any more. Make them commit their idiotic assumptions in writing.

If the landlord tries to sue you for damages, the email you provided will serve as excellent evidence that the landlord was shirking his duty. Remember, the landlord has to prove that he incurred his claimed damages. Since when does a craigslist ad cost $895?

Yes, this is what renting is like in America. Like our health care system (37th in the world according to the WHO); our infant mortality rate (51st in the world according to the CIA); our incarceration rate (1st in the world according to the International Centre for Prison Studies); renters fair about as well as they do in most other third-world banana republics where tenants have few rights and El Jefe runs the show.

In Germany–health care system (25th in the world according to the WHO); infant mortality rate (205th in the world according to the CIA); incarceration rate (166th in the world according to the International Centre for Prison Studies)–renters comprise 57% of the population. Renters enjoy some of the cheapest rents in the industrialized world and they have some of the strongest legal protections, including no summary procedure (get ’em out quick) for evictions and state provided defense attorneys. Additionally, landlords do not enjoy the same tax breaks as they do in the United States. I use Germany as an example because my German business partner and I frequently compare our two countries and because I ran across this insightful article, Most Germans don’t buy their homes, they rent. Here’s why, by Matt Philips.

What’s my point? It comes as no surprise that the lords of your living space, who frequently exact a tax of over 30% of your income, don’t give a shit about the few rights you may have. They Don’t Call ‘Em Landlords for Nothing.