Rent applied to things other than rent

[robingaye]

Is there anyone who can tell me if what my landlord did was legal? I have paid the rent every month but for a while I was late paying. Almost 11 months. In that time he said he had legal fees connected with my being late paying rent. He filed an unlawful detainer in November. It was for 795.00 in back rent. I have paid every month even most of the late fees. I could'nt figure out why I owed that much in back rent. I have all my reciepts to prove how much I have paid. I tried to pay rent in December. The landlord refused my check, he said he would only accept full payment to stop the eviction. When I went to court on Jan. 2 I was almost forced to sign a stipulation by his attorney. I found out there is a small clause in my rental agreement that says the money I pay for rent can go to pay late fees, attorney fees, damages, and then rent. That is why I owe back rent. Is this legal? I live in California. I know this is long, I hope someone can understand my message.

 

[djdj]

Most rental contracts state this..... And it is fair,

BUT ALWAYS Remember this:

IF in a rental contract the landlord can sue or add attorney fees, WELL SO CAN YOU!

If the landlord is wrong, and YOU sue the landlord,and WIN, you can get the landlord to pay your attorney fees,if you include in the petition.

It does work both ways

So you were at fault being late, and you owe his attorney fees, pay it or it will turn into a judgement and show up on your credit report.

 

[LL]

It is hard to follow the exact details of your story, there are several things that don’t add up.

It may be that your whole problem is a matter of bookkeeping, and not one of the LL’s overreach.

I don’t know about this business of applying your rental payment to the late payment fee, then attorneys fees and then damages and only then to rent, but I don’t believe a good judge would allow that, if it works to your disadvantage.

You must have received a 3-day notice in November, prior to the unlawful detainer filing. This notice must show all rent in arrears for which the LL is claiming a forfeiture of the rental agreement, and I believe that it has to be itemized. The late payment fees may be treated as rent, but damage to the premises and legal fees cannot. Legal fees can only be awarded by the judge, not charged in advance.

I suggest that you send another posting showing EXACTLY (word for word) what it says on your 3-day notice, including amounts and dates.

Did you have a trial, or did you settle with the LL by stipulation?
If you had a trial, did you have an opportunity to explain to the judge what you think happened?

 

[LL]

P.S.,
Where in California did this take place.

Are you in a city that has a local Rent Stabilization ordinance?

 

[DSchwarzba]

I believe it depends on your written month to month contract and or lease. In California late fees can be added to your rent as well as attorney fees if it is included in your written agreement.
Not an attorney, property manager for 30 yrs

 

[LL]

Thanks, DSchwarzba for your contribution. I am curious about how this works and anxious to learn something. Do you have any pointers to code sections or case law to show how this works?

I know that, in order to take an unlawful detainer action to court in California, LL must serve a notice showing exactly the rent due and unpaid, and explaining exactly what it is for (e.g., $1000 due, being the rent for January 1 through January 31 at the monthly rate of $1000), and the notice states that if it is not paid within 3 days, LL elects to declare a forfeiture of the rental agreement. If the 3-day notice is defective, including incorrectly stating the amount due (according to the rules of 3-day notices), the whole unlawful detainer action will be dismissed.

It is my understanding that late fees are "like" rent in California, and they can thus be treated as rent on the 3-day notice, provided that they are itemized and listed for what they are, namely late payment fees, not rent.

Generallly, at this point there are no attorney fees. Attorney fees are charged by the attorney for filing and trying the unlawful detainer action, and if provided for in the rental agreement, the petition can ask the judge to award attorney fees to the prevailing party in addition to awarding unpaid rent and damages, and the attorney fees are then added to the rent and damages in the judgement. But the attorney fees wouldn't be put into the 3-day notice as part of the requiremnents to be met in 3 days to avoid eviction, would they? Even if that is provided for in the lease? Would a clause like that be enforceable? Besides, how does LL know how much they will be?

I would appreciate carrying on the discussion with you, DSchwarzba, in the interest of my learning something from your 30 years experience.