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What If the Rent Is Late

 

If you are late paying the rent, a landlord may try to charge you an extra fee or late penalty. It is against the law for landlords to charge late fees in some cases.

The landlord may also try to evict you for repeated late payment or for non-payment of rent. As a practical matter, most landlords do not send tenants eviction notices if they are several days late with the rent every once in a while. Even if a landlord does begin to evict you, you may be able to stop the eviction by paying the money you owe.

When Are Late Fees Illegal

Your landlord cannot charge you interest or late fees on late rent payments unless your lease or rental agreement specifically gives the landlord the right to charge late fees. If you have a written lease or tenancy at will agreement, check to see whether it has a late payment penalty clause. If there is no late payment penalty clause, you do not have to pay a late fee.

Even if there is a late payment penalty clause, a landlord cannot collect a late payment penalty until you are 30 days late with the rent. 5 If the late payment penalty clause says that the landlord can collect a late fee before 30 days, the clause is illegal and you should not pay a late fee (even if you are 30 days late). 6

If you have a lease, a landlord may also try to collect a late fee through what is called a "discount clause." A discount clause is a clause in your lease that says your rent is discounted if you pay it on time. A discount clause is a late payment penalty clause in disguise and is illegal.7 If your lease has such a clause and the landlord tries to collect extra money from you, do not pay it. Pay only the "discount" rent. If a landlord continues to ask you for the money, tell your landlord in writing that, under Massachusetts law, this clause is illegal.8 For more information about late penalty and discount clauses, see the section on Common Lease Clauses in Chapter 2: Before Moving In.

For information about late fees in public housing, see Rent in Public Housing.

Stopping an Eviction for Non-Payment or Late Payment

Non-payment: You Have No Lease

If your landlord gives you a 14-day notice to quit for non-payment of rent, you may be able to stop the eviction by paying the rent owed. This is sometimes called "curing" the non-payment.

If you are a tenant at will, you can cure the non-payment and stop the eviction by paying all the rent you owe within 10 days of receiving a notice to quit. The only time that you do not have a right to cure is if, within the previous 12 months, you have received another 14-day notice to quit for non-payment of rent from your landlord.

Non-payment: You Have a Lease

If you have a lease, you can cure the non-payment and stop the eviction even after the landlord files an eviction case in court. You have up until the date your court papers (the Answer form) are due.

If you are able to, you should pay the rent owed before the date stated on the notice to quit. If you do, the landlord cannot proceed with the eviction—even if this is not the first time you have cured a non-payment. Also, once you receive a summons and complaint , curing the non-payment becomes more expensive because you must pay the rent owed, plus interest and the landlord's costs for filing the eviction case.

Always Try to Cure

A landlord is required to accept the rent if you try to cure before the deadline. If your landlord refuses to accept the rent from you, be sure to put in writing that you are offering to pay.

But even if you miss the deadline to cure the nonpayment, you can still try to convince your landlord to accept your rent and drop the eviction case. Often, landlords agree to this because their real interest is in receiving the rent money.

Eviction for Repeated Late Payment

If a tenant pays rent late again and again, the landlord may try to evict the tenant for repeated late payment of rent. A landlord cannot use a 14-day notice to quit to evict you for late payment of rent. The law requires the landlord to give you 30 days' notice.If a landlord tries to evict you for repeated late payment and there are good reasons why your rent is always late, you should explain them to the landlord and the judge. For example, if you have a disability and do not receive your SSI income until the 3rd of the month, you should ask the landlord and the judge for a reasonable accommodation of a later due date for your rent. For more information on reasonable accommodations, see the section called Discrimination Based on Disability in Chapter 7: Discrimination. For more information on defending yourself against an eviction, see Chapter 13: Evictions.

Endnotes

5. G.L. c. 186, §15B(1)(c); G.L. c. 93A, §2; 940 C.M.R. §3.17(6)(a).

6. G.L. c. 186, §15B(1)(c); G.L. c. 93A; 940 C.M.R. §3.17(3)(a)(3). Also, you cannot be charged a constable's or other fee for service of a notice to quit that is for rent that is less than 30 days late. Commonwealth v. Chatham Development Co., Inc., 49 Mass. App. Ct. 525 (2000); Copley Management v. Andersen, Boston Housing Court, 08517 (Smith, J., Nov. 29, 1990).

7. The Boston Housing Court has noted that such a discount clause "appears to be, in substance, a late fee charge which is prohibited by G.L. c. 186, §15B(1)(c)." Patriquin v. Atamian, SP-19648-K (King, J., Aug. 27, 1981).

8. G.L. c. 186, §15B(1)(c), states that "[n]o lease . . . shall impose any interest or penalty for failure to pay rent until thirty days after such rent shall have been due."


Produced by Esme Caramello
Created July 2008


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