Does my lease agreement correctly identify the late fees as additional rent and can I be evicted for not paying the fees. Rent is due in advance on the 1st and delinquent if not paid by the 2nd day. The agreement states, "If any installment of Rent due from Tenant is not received by Landlord on the due date, or if a check is returned, Tenant shall pay Landlord, respectively, an additional $95 as a 'Late Charge' and $25 as a NSF fee for the first returned check and $35 as a NSF fee for each additional returned check, either or both of which shall be deemed additional Rent. This seems ambiguous since 'either or both' could refer to the NFS fees as additional rent. Assuming the late fee are additional rent, can it be included on a 3 day notice? If I pay rent, but not fees, can they evict?
Normally, late fees on a RESIDENTIAL lease or rental agreement would not be considered "rent" and would not be properly included on a 3-day notice to pay rent or quit.
If a landlord proceeds to evict a residential tenant based upon an invalid 3-day notice to pay rent or quit, the tenant can probably file a motion to quash to challenge the allegations of the complaint for unlawful detainer.
A tenant who believes that the landlord has acted unlawfully in giving the tenant a three-day notice or a tenant who may have a valid defense to an unlawful detainer lawsuit should carefully weigh the pros and cons of contesting the landlord's likely unlawful detainer lawsuit against the tenant by consulting with a lawyer, a legal aid organization, tenant-landlord program, or housing clinic.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
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