Question: I have lived in my apartment now for four years. I have recently gone through a financial problem and have been paying my rent late with the late-payment fee for the past couple of months. Yesterday my manager said that the owners wanted to serve us with a legal notice because of us paying rent late. My boyfriend has finally got another job so we will be able to pay rent on time. How they can do this when they have been accepting the late rent paid along with the late fee?

Tenants’ attorney Kellman replies:

Landlords are allowed to demand that rent be paid on time. They may also make agreements to accept the rent late. These late-payment agreements may be by written contract or they may be implied by law simply by the conduct of the parties. For example, if you have a pattern of paying late for a period of time without objection by the landlord, the law may imply an agreement to pay late. In other words, the landlord may waive the right to demand timely payment of rent when he/she has led you to believe and rely on the idea that rent can be paid late. If an eviction proceeding is initiated for a late rent payment, a judge may rule that it is unfair to blame you for that late payment based on your express or implied agreement. In your case, however, you may receive a legal notice to terminate your tenancy. In most jurisdictions, the landlord does not need to state a reason for the eviction. There are some jurisdictions where, under certain conditions, the notice must state a cause. In general, a legal notice would be illegal if it is retaliatory in nature even in a no-cause-eviction jurisdiction. In your case, such a legal notice may be retaliatory since you would be getting evicted for standing on your rights to follow a late-payment plan. Of course, the best way to proceed when you need to pay the rent late is to have a clear written agreement to avoid such problems.

Question: I am a new landlord of a single-family home. The lease states that the tenant shall pay for the first $25 of any charge for repairs by a service person but a friend told me this is not legal. I have this clause in my lease so that the tenant will know they will be responsible if they damage anything in the house. Please let me know if this charge is appropriate.

Landlords’ attorney Smith replies:

Landlords are required to maintain their residential rentals in a habitable condition. This duty continues throughout the tenancy. Generally landlords may not — by lease or other agreement — shift this responsibility to the tenant. I am not aware of any jurisdiction in which this right can be waived and a provision or a clause in the lease giving up or modifying the right to habitability is enforceable. As a result, the landlord may not ask the tenant to pay the first $25 — or any other amount — of essential habitability repairs. I recommend this clause be deleted from the residential lease. On the other hand, tenants do need to be reminded that when they are at fault for damage to the rental, they can be held accountable for the entire cost of the repair. Examples of this are toys dropped into the toilet or grease fires on the stove. Tenant damage constitutes a violation of the lease and can be the subject of legal proceedings, including eviction. Finally, it should be remembered that the law of habitability applies to residential rentals only and to the most important, basic requirements of the apartment — heat, water, electrical, and so forth. It does not apply to purely aesthetic or cosmetic items in the rental. You should set up a system whereby tenants promptly notify you in writing of any needed repairs, and then keep a written record of work done. If the tenant is at fault — carelessly or intentionally damaging the rental — he or she has violated the lease agreement, is responsible for the repair costs, and could be subject to eviction.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of “Property Management for Dummies” and co-author of “Real Estate Investing for Dummies,” and San Diego attorneys Steven R. Kellman, director of the Tenant’s Legal Center, and Ted Smith, principal in a firm representing landlords.”

E-mail your questions to Rental Q&A at rgriswold.inman@retodayradio.com.

Questions should be brief and cannot be answered individually.

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