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San Diego Eviction Attorney Discusses When Rent is Late
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San Diego Eviction Attorney Discusses When Rent is Late

As a San Diego Eviction Attorney, I discuss evictions and unlawful detainers almost every day with clients and potential clients.  One thing I commonly hear is that San Diego landlords seems to think that rent is due on the 1st but not late until after the 5th of the month.

Ok  first things first, rent is due on whatever day the landlord and tenant agreed that rent would be due.  It can be any day.

The reason San Diego Landlord seem to get confused is that a lot of leases (most leases) have a provision for a tenant to pay a late fee after a certain date if rent remains unpaid.

Let us use the California Association of Realtors form lease as an example (as a San Diego Eviction Attorney this is the lease I find most people are using).  If you look at paragraph 3(b), you will see that it allows the landlord and tenant agree to a date that rent will be due.  The form lease says “Rent is payable in advance on the 1st (or _______) of each calendar month, and is delinquent on the next day.”

Now look at paragraph 6(a).  This is where landlords get confused.  San Diego Landlords and Tenants can agree to have a certain amount for a late penalty.  Here is the exact language from the CAR lease “If any installment of Rent due from Tenant is not received by Landlord within 5 (or ) calendar days after the date due,”

For some reason landlords think this means that tenants are not late until whatever day they can charge a late fee.  That is just not the case – at least with the California Association of Realtors lease.  Rent is due on the due date and it is late the very next day if it is unpaid.

Why does this matter?  Because a landlord can serve a three day notice to pay rent or quit as soon as rent is late.  They do not have to wait an extra 4 or 5 days to start the eviction process.  San Diego Landlords do not have to wait until they can charge a late fee to serve a Three Day Notice to Pay or Quit if they are using the CAR lease.

Here is an example:

San Diego Landlord Lenny rents to San Diego Tenant Tammy for $1000.00 per month with rent due on the 1st of each month using a CAR lease.  The lease provides that Landlord San Diego can access a $50.00 late fee if rent is not received from Tenant San Diego by the 5th of the month.

In this example, when is the first day Landlord San Diego can give Tenant San Diego a 3 Day Notice to Pay Rent or Quit?  If you have been following along, then you know the answer is on the 2nd!  Rent was due on the 1st and was not paid.  It is late on the second and San Diego Landlord  Lenny can serve a 3 Day Notice to Pay Rent or Quit as soon as rent is late.

As San Diego Eviction and Unlawful Detainer Attorneys, we see common mistakes likes this all of the time.  While it might not be something that makes a landlord lose and eviction case, it can cost a landlord 4 or 5 days of extra time in getting a non-paying tenant out.  And every day that a unit could be rented to a paying tenant is a good thing.

But I have urge you to be cautious.  Some leases are not like this.  Some lease do not specify that rent is late the day after it is due.  And that creates ambiguity.  Courts have found when it does not specify when rent it late, then it may not be late until the date for late charges.  So read your lease carefully before serving a 3 day notice to pay rent or quit.

If you need more information about evictions, please read some more of the articles on this blog.  I also have a fairly detailed overview of the eviction process on our San Diego Eviction Attorney website.

Related posts:

  1. San Diego Landlords Beware Shady Eviction Lawyers
  2. San Diego Foreclosures, Evictions and The Protecting Tenants at Foreclosure Act of 2009
  3. California Tenants and Foreclosure
One Response to San Diego Eviction Attorney Discusses When Rent is Late
  1. Merle
    February 24, 2011 | 3:46 pm

    California Association of Realtors form lease
    link is broken.