Really need help rent proration

[Mouse]

Here is the situation: We moved out of our old apartment because they wanetd to charge us too much rent, moved into a new apartment for three month. The new apartment lease runs from 9/26/04 - 12/25/04. They now want to prorate us for 10/26/04-10/31/04 however have not adjusted the lease to 9/26/04- 012/31/04. essentially we would be paying for 95 days. They are refusing to budge and have sent us a three day pay and quit notice for the prorated rent which they claim is due on 10/1/04 for a rental period of 10/1/04-10/31/04 totalling $147,- even though we paid a full month rent for 9/26/04- 10/26/04 ($850).

Anyone know the law in this case, I have researched everything on prorating but it doesn't come up with any specifics. The office will not answer any faxes or letters. I have sent all the paperwork to their management company etc but would appreciate any advice in the meantime.

[Guest]

How exactly does your lease read?

That is the easiest thing to do. Usually they will prorate the first month then make you pay the first full month.

If your lease says 9/26 then you might be in the clear.

[anti-something]

questions!

what are the lease dates on the lease?

what day did you move in?

what day is the rent due? (like the 1st of the month or what)

check your states laws regarding landlord tenant, there may be a prorate clause.

from what you said, i would be inclined to pay the $147, state clearly on the check that this is rent for the days they said, then at the end of the lease prorate the last month so you only pay up until the 25th. keep really good records of all payments!! but going this route will really depend on the language in the lease.

[Mouse]

lease period runs form 9/26/04 - 12/25/04. 90 days. Yet they want to prorate rent from 10/26/04 to 10/31/04 which was provided on a seperate paper. Therefore if they prorate rent they should have the lease from 9/26/04 to 12/31/04 which they don't. The property management company phoned me back and said they have handed it to their legal department. Right now I am disputing it as I have repeatedly requested information for the proration yet none was provided.

[Mouse]

well isn't that typical, the management company on the surface is siding with the aoartment complex despite the fact that no one has bothered to come back to us with any information or answered any of my faxes that were sent between the 1st and the 4th specifically discussing the prorating issue. I braught a number of issues to their attention such as a class action law suit which the apartment complex is involved in as they are still pursuing the same action that landed them in the class action which I have evidence of I think they might be just a tad pissed off. Add to the fact that two of our vehicles were illegally towed tsk tsk.

Thaks anti, it looks like your route is the most approriate even though they did not deliver copies of the paperwork to us until the 1st and the paperwok does not define anything specific. My question is would I still be liable for a late fee which they maintain I am liable for if I don't pay by the 5tht? Even though I only got the lease paperwork on 5.30 pm on the 1st (hand delivered) and that was a friday and I have been trying to get answers ever since.

Me thinks I have opened up a can of worms. Thanks again for your replies everyone.

[anti-something]

heh and now they want late fees? wow i bet you are glad you only signed a 3 month lease! i hope you realise that when you move you need a camera to take lots of pictures of the condition of the apartment (actually take some now too, to show a comparison)

whether or not you would be liable for a late fee if you didnt pay the prorated rent by the 5th would prolly go back to when the lease says your rent is due, if it states the first of the month, then they prolly can charge it.

but the whole situation sounds very dubious to me. do you have any deceptive trade pratices laws? you could get them there for leading you to believe you were only liable for a certain amount of money in regards to this lease, and then they baited and switched you.

[Mouse]

wel that's what I am goiing to get them for as the prorated rent was only mentioned on 10/1/04. We had a bad start when we signed the lease and went over to the apartment as according to management the state of the apartment was perfect. Not so. My DH made out a 30 item list of defects describing the condition of the apartnebnt which included torn and stained carpet which they maintain was shampooed. Yeah right. So we submitted the list to them and took some photos. Moved in on 9/29 and on the first night our cars were towed from the complex despite having parking id on them etc. So I was furious about that, management refused to reimburse us for towing so I'm going after the towing companmy and have cited both the apartment complex and the towing company to code enforcement as they handle this in this district. Then I did some digging and found out that the apartment complex is involved in a class action law suit for withholding deposits, failing to document the state of the apartments prior to move in and out etc. I am quite literally furious and have mentioned my displeasure at everything and management does not respond to anything. I believe all this crap is a vendetta as I reported them and found out the negative info which I have on voice mail that they are denying, but I have actual documents proving that they are a part of the class action law suit.

The only light at the end of the tunnel is that we're just waiting for our house to be finished and then we're done with apartment life.

hmm this is what I found for late fees. So I'll just drop it into their drop box tonight, as that would still constitute the 5th, or am I wrong?. This is just ridiculous.

Late Fees and Grace Periods

This is an area of landlord-tenant law which most judges now understand to be different for residential tenants. A late fee is typically a flat amount or percentage of the rent that the landlord intends to charge if you don't pay the rent by a given date. Late fees are built into many contracts to encourage timely payment, but the Legislature recently amended the law to prohibit late fees in residential rental agreements. The law does not punish the landlord for trying to steal it from you.

Late fees are legally described as "liquidated damages provisions", meaning that an arbitrary amount is chosen as the penalty for breaching a particular promise in the contract - in this case, to pay the rent by the given date. Civil Code Section 1671 provides that a residential rental agreement cannot contain a liquidated damages provision unless it is impossible, or extremely difficult to calculate the exact damages suffered by the breach. If it does, the late fee clause is void and of no legal effect, just like a nonrefundable security deposit clause. Interest, in the range of 30 cents per day, is permissible, however, if the contract so provides.

Landlords will try to justify the late fee by describing the time it takes to make extra calculations, trips to the bank, phone calls, and other varying time spent due to a single late payment. Of course this is contrived, and the reality is that the management company gets the same amount of money irrespective of any late payment, and any additional work is negligible. The stronger argument is that Civil Code Section 3302 says that the damages for failure to pay an amount is the amount itself, plus interest at the legal rate [1/3650th of the amount per day - about 20 cents]. Therefore, the amount incurred from late payment is not difficult to ascertain; the law defines it.

That's the legal argument. You might want to print it out, in case you have to convince the landlord or judge of your position, and you can use it for reference.

Tactically, you face decisions on when and how to confront the issue. You can sign a lease with the late fee provision, and you haven't waived your rights by doing so, since the late fee provision is illegal and void. When faced with the demand, you can pay it under protest, or describe the money as an advance payment of rent, and avoid the immediate hassle. At a later date, if you are evicted for nonpayment of rent, your prior late fee overpayment has to be given credit, and the 3-day notice is thereby made invalid for demanding more rent than was due [ie, it demands a month, but you only owe a month minus that earlier late fee payment]. You win the case on a technicality, or at least get a great bargaining position for a settlement on terms favorable to you. If you're strapped for cash now and can't pay even the current rent, hope that you get the eviction notice that asks for the rent plus the late fee. The scenario is the same, except that you don't have to apply past overpayments for credit; the notice is invalid on its face.

There is no official "grace period" for rent payments in the law. Rental agreements typically say that if the rent is not paid by the 5th, a late fee is due. Again, since the late fee is itself illegal, threatening to do an illegal act on a given date does not help the landlord's case. Functionally, the law provides a type of grace period. If rent is due on the first, the landlord cannot give you a 3-day notice to pay rent or quit until the 2nd. The 2nd is day "zero" of the 3-day notice, so that the last day to pay and satisfy that 3-day notice comes out to be the 5th of the month. If that third day also falls on a legal holiday or weekend, your last day is extended until the next banking day, which can be as late as the 9th.

[Mouse]

Just an update with some good news. They are reimbursing us for the towing and have addressed all our other concerns. Thanks again for the feedback. Just proves that fighting back will get you somewhere . (Just wonder why I always seem to land in these situations ).