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late charges on lost check

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lauras2u

Member
What is the name of your state? Illionois

On October 31st we ordered a check issued from our bank to the landlord for rent due on the first. The check was issued and mailed on the 1st but for unknown reasons the post office marked it as undeliverable (i am waiting on photocopies of the envelope in the mail).

The address the bank used is the same one on our lease and according to our landlord the correct address. The reason the post office returned the check is unknown. As soon as we found out the check was returning to the bank we withdrew the money and paid off the rent this was the 10th.

There is indisputable proof of each step here. The landlord wants 50 dollars late fees. do we have to pay this?
 


BL

Senior Member
What is the name of your state? Illionois

On October 31st we ordered a check issued from our bank to the landlord for rent due on the first. The check was issued and mailed on the 1st but for unknown reasons the post office marked it as undeliverable (i am waiting on photocopies of the envelope in the mail).

The address the bank used is the same one on our lease and according to our landlord the correct address. The reason the post office returned the check is unknown. As soon as we found out the check was returning to the bank we withdrew the money and paid off the rent this was the 10th.

There is indisputable proof of each step here. The landlord wants 50 dollars late fees. do we have to pay this?

Perhaps you should have posted this under landlord tenant topic .

Anyways , what does your lease say about payment , and method of payments ?

It's really not the landlords fault if your rent is late though .
 

lauras2u

Member
"rent is due on the first of each month. There will be a $5 per day late fee after the 3rd of each mothng. Rent is to be paid in cash or certified funds ONLY! No personal checks under any circumstance will be accepted. If a personal check is sent to the P.O. box, it will not be accepted and rent will be concidered due with the applicable fees being applied."

We mailed guaranteed funds which means that we didnt have access to the money until it was returned to the bank.

All we have is a cell phone number, which she doesnt answer all the time and a po box.

This is not a landlord tenent issue imho, and i am not a lawyer.

Clearly we did what we should to fulfill the contract. The bank held up thier end by mailing the check. this was a screw up by the post office or perhaps she was late in her payment of the po box.
 

Zigner

Senior Member, Non-Attorney
"rent is due on the first of each month. There will be a $5 per day late fee after the 3rd of each mothng. Rent is to be paid in cash or certified funds ONLY! No personal checks under any circumstance will be accepted. If a personal check is sent to the P.O. box, it will not be accepted and rent will be concidered due with the applicable fees being applied."

We mailed guaranteed funds which means that we didnt have access to the money until it was returned to the bank.

All we have is a cell phone number, which she doesnt answer all the time and a po box.

This is not a landlord tenent issue imho, and i am not a lawyer.

Clearly we did what we should to fulfill the contract. The bank held up thier end by mailing the check. this was a screw up by the post office or perhaps she was late in her payment of the po box.
You did NOT do what was required to fulfill the contract. Your rent was NOT paid to the landlord on time. Assuming the late fees are valid in all other respects, then yes - you DO have to pay them.
And, to touch on something else - even if they HAD received the check on the 2nd, your rent was STILL late.
 

JustAPal00

Senior Member
You did NOT do what was required to fulfill the contract. Your rent was NOT paid to the landlord on time. Assuming the late fees are valid in all other respects, then yes - you DO have to pay them.
And, to touch on something else - even if they HAD received the check on the 2nd, your rent was STILL late.
I disagree! The landlord chose to use a PO box as a place to receive his rent. Thus the tenant was forced to mail the payment throught the postal service. If the payment was mailed on time and to the correct address, then the postal service is at fault. Since the LL chose the method of delivery, it is their fault.
 

Zigner

Senior Member, Non-Attorney
I disagree! The landlord chose to use a PO box as a place to receive his rent. Thus the tenant was forced to mail the payment throught the postal service. If the payment was mailed on time and to the correct address, then the postal service is at fault. Since the LL chose the method of delivery, it is their fault.
And, you are wrong. The rent WAS late, as it wasn't even put in to the mail until the 1st (meaning it had no chance of arriving on time). Tell me, why would it be the landlord's fault if the postal service messed up? If you mail your credit card payment and it gets lost in the mail, will you get a late charge? Of course you will. Now, credit card companies would likely waive the late charge as a courtesy. But they are not, by law, REQUIRED to waive it.
 

BoredAtty

Member
I disagree! The landlord chose to use a PO box as a place to receive his rent. Thus the tenant was forced to mail the payment throught the postal service. If the payment was mailed on time and to the correct address, then the postal service is at fault. Since the LL chose the method of delivery, it is their fault.
You are correct. Zigner is incorrect.

Generally speaking, when a creditor specifies that money be delivered via mail, then payment is made when the money is properly mailed, and not when it is received.

The OP is not liable for late fees assuming the landlord requires payment via mail, and the payment was timely mailed.
 

Zigner

Senior Member, Non-Attorney
You are correct. Zigner is incorrect.

Generally speaking, when a creditor specifies that money be delivered via mail, then payment is made when the money is properly mailed, and not when it is received.

The OP is not liable for late fees assuming the landlord requires payment via mail, and the payment was timely mailed.
I still disagree. Next time you mail a credit card payment, put it in the mail on the day it's due (making sure it's postmarked). Then, wait until your next statement and see if there's a late charge on there.
 

BoredAtty

Member
I still disagree. Next time you mail a credit card payment, put it in the mail on the day it's due (making sure it's postmarked). Then, wait until your next statement and see if there's a late charge on there.
It's not exactly a commonly litigated area of law, but the little case law out there disagrees with you as well:

"Tenant argues Landlord bears the risk of nondelivery in the mails. The lease provides that "[a]ll rental payments shall be made by checks payable to Landlord and mailed to it at the address designated by Landlord,...." This Court has found no Oklahoma law which directly addresses this issue. However, the courts in our neighboring state of Texas hold if a creditor expressly directs that money owed him to be mailed to him, payment of such debt is made when a letter containing the agreed remittance for the proper amount, properly addressed, and with postage prepaid is deposited in the mail. Shiffers v. Estate of Ward, 762 S.W.2d 753 (Tex.App.-Ft. Worth 1988). Blumer v. Kirkman Corp., 38 Cal.2d 480, 241 P.2d 17 (Cal.1952), the Supreme Court of California held that payment is not effectuated by sending the amount due to the creditor by mail until the remittance gets into the hands of the creditor, unless he expressly or by implication directs or consents that payment be so made. We are persuaded by the reasoning of these courts and thus, adopt these rules as policy in Oklahoma.

In the instant case, the lease provides that rental payments shall be mailed. [...] Tenant mailed a check on December 12, 1995 [...]. Although Landlord did not receive this payment, he bears the risk of loss. The trial court erred in holding Landlord could terminate the lease because the check for the charges was never received by Landlord. Shadid v. Northern Automotive Corp., 951 P.2d 1094 (Okla.Civ.App. Div. 1, 1997).​

As for the credit card company, I don't find that example very analogous. None of the credit card companies I do business with require payment via mail.
 

Zigner

Senior Member, Non-Attorney
Ok, then let that be a lesson to Landlord's out there. Include a clause stating "Tenant bears responsibility for, and Landlord shall not be responsible for late/misdirected/lost mail"
 

VeronicaLodge

Senior Member
I don't see where the OP said the landlord directed that payment be maid by mail only. In fact it said that it must be made by cash or certified funds and that if you mail a check it will not be accepted and will be late.

If a personal check is sent to the P.O. box, it will not be accepted and rent will be concidered due with the applicable fees being applied."
 

JustAPal00

Senior Member
I don't see where the OP said the landlord directed that payment be maid by mail only. In fact it said that it must be made by cash or certified funds and that if you mail a check it will not be accepted and will be late.
In the OP's second post they quote part of their lease "rent is due on the first of each month. There will be a $5 per day late fee after the 3rd of each mothng. Rent is to be paid in cash or certified funds ONLY! No personal checks under any circumstance will be accepted. If a personal check is sent to the P.O. box, it will not be accepted and rent will be concidered due with the applicable fees being applied.". You may be right, but I took this and the OP's statement that he only had a POB address to mean that this was how rent was to be paid. I'm sure that somewhere in the lease it does state how it is to be delivered.

Zigner, if the payment were lost you would be right. But this payment wasn't lost. according to the OP it was mailed to the correct address. The fact that it was returned due to a bad address is what saves the OP!
 

JustAPal00

Senior Member
Ok, then let that be a lesson to Landlord's out there. Include a clause stating "Tenant bears responsibility for, and Landlord shall not be responsible for late/misdirected/lost mail"
You can put any clause you want, but if the court says it's not legal, it won't hold water!
 

BoredAtty

Member
Zigner, if the payment were lost you would be right. But this payment wasn't lost. according to the OP it was mailed to the correct address. The fact that it was returned due to a bad address is what saves the OP!
Now I disagree with you.

If the landlord requires that rent be mailed, then it doesn't matter what happens to the check once it is timely inserted into a mailbox with proper postage. If the check is lost in the mail, it's the landlord's problem, not the tenant's.
 

lauras2u

Member
thx

thank you much for all the answers to this question.

the lease says 'rent is to be paid to:<name> P.O.Box <number>" etc...since i do not know how to hand deliver to a p o box i think it is implicite that it should be mailed.

Although, i am under the impression she will pick up cash, she picks up cash in her own time and charges for that time....5 dollars a day.
 

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