Phil Querin Q&A: Assessment of Late Charges and Recovery of Costs

Want access to MHCO content?

For complete access to forms, conference presentations, community updates and MHCO columns, log in to your account or register.

January 27, 2016
Phil Querin
MHCO Legal Counsel
Querin Law

 

Question:  Our rental agreement provides that rent is due on the first of the month, and late on the fifth. Rent may either be mailed to, or dropped off at, the manager’s office. Occasionally, we have residents mailing their rent checks on or before the fourth (based upon the postmark), but they are not received until the fifth or later.  In those where we receive the rent check on the fifth or thereafter, can we assess a late charge?

 

Related to this, after we issue a 72-hour notice, we have a separate (unrelated) company that takes over, preparing, filing, and serving the eviction complaint. Frequently, before the first appearance, the resident agrees to pay the rent. When that happens, what court costs and fees are we entitled to recover?

 

Answer:    As to your question regarding the assessment of a late fee, here is what ORS 90.260(1) provides:

 

(1)A landlord may impose a late charge or fee, however designated, only if:

(a)The rent payment is not received by the fourth day of the weekly or monthly rental period for which rent is payable; and

(b)There exists a written rental agreement that specifies:

(A)The tenant’s obligation to pay a late charge on delinquent rent payments;

(B)The type and amount of the late charge, as described in subsection (2) of this section; and

(C)The date on which rent payments are due and the date or day on which late charges become due. (Underscored text in italics are mine.)

 

I know of no other statute that directly addresses this issue. So assuming that:

 

  •  Your Rental Agreement makes it clear that the rent check must be received on or before the fourth of the month;
  • The type and amount of late charge; and
  • The date (a) rent payments are due (e.g. the first of the month), and (b) when the late charge would be due (e.g. the fifth of the month, or later),

 

I would conclude that you may assess a late charge where residents mail in their rent checks, but they are not received until the fifth of the month or later.

 

However, a word of caution: If you are going to institute this policy, it must be done uniformly and consistently for all residents. I suspect that some folks may believe that by mailing their checks on the fourth (based upon the postmark), their rent payment is timely, i.e. no late charge will be assessed.  You want to make sure your residents understand that since they have the option of manually delivering their rent to the manager’s office (or presumably dropping it into a box when the office is closed), that selecting the use of the mails requires that the rent is received – not simply deposited in a mailbox – could result in the assessment of a late charge if the check is received on the fifth or later.

 

Note, that ORS 90.394(4) provides:

 

(4) Payment by a tenant who has received a (72-hour or 144 hour) notice *** is timely if mailed to the landlord within the period of the notice unless:

(a)The notice is served on the tenant:

(A)By personal delivery as provided in ORS 90.155(Service or delivery of written notice) (1)(a); or

(B)By first class mail and attachment as provided in ORS90.155 (Service or delivery of written notice) (1)(c);

(b)A written rental agreement and the notice expressly state that payment is to be made at a specified location that is either on the premises or at a place where the tenant has made all previous rent payments in person; and

(c)The place so specified is available to the tenant for payment throughout the period of the notice. (Underscored text in italics are mine.)

 

Although this statute does not expressly say that proof of mailing is determined by the postmark (and I have not researched this based upon Oregon case law), for purposes of the payment of  property taxes in Oregon, as well as state and federal income taxes, the postmark date is what is relied upon in determining whether the payment was timely. In other words, by analogy (without the benefit of legal research), I would conclude that timely mailing, based upon the postmark, does work for payment of rent following the issuance of a 72-hour or 144-hour notice of nonpayment under ORS 90.394.  To be absolutely certain, however, you should obtain a legal opinion, based upon legal research, from your own attorney.

 

As to the second part of your question, i.e. what costs and fees you may assess to a resident, who tenders rent after the expiration of a 72-hour or 144-hour notice, if the eviction is actually file,  the answer is contained in ORS 90.255:

 

In any action on a rental agreement or arising under this chapter, reasonable attorney fees at trial and on appeal may be awarded to the prevailing party together with costs and necessary disbursements, notwithstanding any agreement to the contrary. As used in this section, prevailing party means the party in whose favor final judgment is rendered. (Underscored text in italics are mine.)

 

ORCP 68(A)(1) Provides:

 

Attorney fees. “Attorney fees” are the reasonable value of legal services related to the prosecution or defense of an action.

 

ORCP 68(A)(2) Provides:

 

Costs and disbursements. “Costs and disbursements” are reasonable and necessary expenses incurred in the prosecution or defense of an action, other than for legal services, and include the fees of officers and witnesses; the expense of publication of summonses or notices, and the postage where the same are served by mail; any fee charged by the Department of Transportation for providing address information concerning a party served with summons pursuant to subparagraph D(4)(a)(i) of Rule 7; the compensation of referees; the expense of copying of any public record, book, or document admitted into evidence at trial; recordation of any document where recordation is required to give notice of the creation, modification, or termination of an interest in real property; a reasonable sum paid a person for executing any bond, recognizance, undertaking, stipulation, or other obligation therein; and any other expense specifically allowed by agreement, by these rules, or by any other rule or statute. The court, acting in its sole discretion, may allow as costs reasonable expenses incurred by a party for interpreter services. The expense of taking depositions shall not be allowed, even though the depositions are used at trial, except as otherwise provided by rule or statute. (Underscored text in italics are mine.)

 

Based upon the above, it is my opinion that the cost of the private company you employ to prepare the eviction complaint, would not normally be recoverable, even if you filed the complaint. Without addressing whether this is the “unlawful practice of law”, I will note that if you paid your attorney to perform this service, it would be recoverable as attorney fees, if the complaint was filed. The only exception might be if you had a specific provision in your Rental Agreement that expressly permitted it as a recoverable court cost. I say “might”, since the court has a certain amount of discretion in the matter of the amount of costs, fees, and disbursements it will award, and may or may not permit it.

 

If you file the eviction, but reach a settlement with the resident for payment of your court costs, attorney fees, and disbursements, you may have to enter into a Stipulated Judgment of Restitution, permitting the resident to pay these additional costs over a period of time.

 

If no eviction is filed, i.e. the resident tenders rent after the running of the 72-hour or 144-hour written notice of nonpayment, but before the filing of a complaint in court, you cannot condition your acceptance upon the simultaneous payment of late charges.  And since you have not filed in court, the best you can expect is to recover late charges through the use of a 30-day notice under ORS 90.630(1).  Additionally, remember that if the resident is a serial later payor, you may issue a 20-day non-curable notice of termination, under the 3-strikes provisions of ORS 90.630(8).

Column Topics: 
Location Tags: