Skip to main content

Can I charge a Mortgagor rent for Default if this is stipulated in a 1992 NY State Note and Mortgage, recently renegotiated?

Ellenville, NY |

Mortgagor is consistently 30+ days late in payments for several months. The original Note and Mortage reads: "If there is a Default under this Note and Mortgage, Mortgagor must pay monthly in advance to Mortgagee, or to a receiver who may be appointed to take control of the Property, the fair rental for the use and occupancy of the part of the Property that is in the possession of the Mortgagor. If Mortgagor does not pay the rent when due, Mortgagor will vacate and surrender the Property to Mortgagee or to the receiver. Mortgagee may evict Mortgaor by summary proceedings or other court proceedings." The original Note and Mortgage was amended because Mortgagor had not paid in years, but all the original clauses still apply.

Attorney Answers 2


  1. I would have to review all the documentation regarding this, however, it sounds as if it would be contrary to law and therefore unenforceable. You can not charge rent to a mortgagor because he is the owner of the land. What you are describing would be on the order of a strict foreclosure where if the mortgagor failed to pay you would automatically repossess the property and strict foreclosures are forbidden under NY law. You could charge late fees and have default provisions which would increase the interest rate as a penalty but rent would not be applicable. You need to have an attorney evaluate your documents and probably commence a foreclosure action.

    This e-mail may contain confidential or privileged information. If you are not the intended recipient, please notify the sender immediately by return e-mail and delete this e-mail and all copies and attachments. If you are not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. IRS Circular 230 Notice: Unless specifically stated otherwise, any tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. Unless specifically stated otherwise, this communication shall not be deemed to be legal or tax advice, and no attorney-client relationship shall be deemed to have been created.


  2. The mortgage instruments will recite what your remedies are for late payments. You cannot impose additional ones unless they are statutorily provided despite the language.

    If you found this "helpful" or "best answer," please click it with my appreciation. My response is for educational purposes and does not constitute legal advice nor creates an attorney client relationship which requires all the details and a personal conference.