The Carrot and the Stick

      Landlords should not have to beg for their rent each month, but many do. Successful property managers learn to use creative inducements to pay rent on time. They include every thing from discounts and free rent to decorating allowances, upgrades and even lotteries. Landlord tenant law almost always allows unlimited use of carrots, but places severe restrictions on the use threats and penalties to collect rent. In most states, reasonable late charges are allowed, but a landlord's only real leverage is a legal eviction. (Massachusetts does not allow either late charges or discounts. See your state's LT Law )

      The process of evicting a tenant for nonpayment of rent is among the quickest and most streamlined of all legal proceedings in most states, if the legal procedures are followed in a timely manner. The process is usually delayed by a landlord's hesitation to serve the required legal Notice to Pay Rent or Quit as soon as the rent payment is in default.

      Landlords are justifiably concerned that serving the notice immediately may alienate the tenant or create unwanted disputes about repairs, maintenance or the tenancy. They hope that waiting to serve the notice, on the other hand, may allow the problem to resolve it's self because the tenant will eventually pay the late rent.

      As difficult as it may be, you should always send the Notice to Quit right away. There are few real reasons to delay, even though long-time landlords have heard a million of them, including: extraordinary medical or family expenses and doesn't have enough money to pay the rent on time ... just this month.

      Unfortunately, sorting fact from the fiction is never easy.

Don't Discriminate

      Fair housing law dictates that landlords treat every tenant the same without regard to race, color, national origin and several other protected classes. That law alone is a very good reason to send every tenant a Notice to Quit the day after any required grace period. You can easily explain, to otherwise good tenants, that you are required to treat all tenants equally.

      If you don't serve the notice immediately, a tenant could also claim during the eviction proceedings that you "waived" the right to receive the rent on the first of the month or that you verbally "worked a deal" for rent to be paid late. The tenant can also claim you modified the lease and could no longer demand the rent on the first of the month because you accepted the rent late and did nothing in the past.

      Attorneys will tell you that tenants with absolutely no proof constantly tell the court that the landlord caused the late payment by agreeing to accept the rent late or by orally changing the lease. Judges actually consider these "phantom" defenses because they have  heard many cases where the landlord or the property manager did wait and wait for the problem to just "go away" or that the landlord did indeed work out an oral deal with the tenant.

      When you always serve the Notice to Quit promptly, you maintain complete control of whether to allow the tenant additional time to pay the rent or not.

      To help avoid proof problems in court, any "deal" or agreement must be in writing. Many professional landlords now insist that tenants sign a promissory note, with interest and a due date, any time a tenant requests additional time to pay rent.

If you're going to make an "exception" or a "deal" with a tenant, make sure it is in writing and contains at least the following:

• The tenant acknowledges the amount of money that is due and unpaid;

• the tenant admits to receiving the Notice to Quit;

• the landlord isn't waiving the "forfeiture" caused by the expiration of the "Notice to Quit";

• the landlord will temporarily suspend filing and pursuing the lawsuit for unlawful detainer, pending full performance of the terms that are agreed on for the deferred payment of rent;

• the agreement does not allow the tenant to pay the rent late in the future.

Make sure that all adult tenants in possession of the premises sign this or any other agreement.

(See Landlord Tenant Case Law )

      Prompt service of the Notice to Quit, on every tenant, the day they are in default, should eliminate the possibility of the tenant's claiming a defense that moves your eviction from a quick, inexpensive summary proceeding, to a protracted and expensive trial of fact.

      Prompt and consistent action will help develop the necessary patterns of behavior in both you and your tenants. It also unequivocally establishes who is in control of the rental payments.

(My wife just read this and said: "please practice what you preach".)

Knowing what to do, then actually doing what you know is the key to success, isn't it?

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