Is there a legal definition of habitual late payment of rent?

The answer, unfortunately, is no. Neither state nor local law tells owners what constitutes habitual late payment of rent. Nevertheless, the local rent ordinance allows an owner to terminate a tenancy if the tenant habitually pays the rent late. The problem is that there are no clear guidelines as to what constitutes habitual late payment of rent. As such, landlords must rely on common sense. “Habitual” in this context means repeated and consistent.

The current PPMA lease states as follows: “Owner and Tenant agree that Tenant paying rent five days after the Due Date on three separate occasions within any twelve month period shall constitute habitual late payment of rent and may be considered a just cause for eviction.” Therefore, if you use this lease, a tenant who pays rent late three times in a twelve month period may be eligible for eviction. Some other well-drafted leases contain similar provisions, but the vast majority of rental agreements in use do not define habitual late payment of rent.

Regardless of whether “habitual late payment” is defined by the written rental agreement, most practitioners will require the following before pursuing this type of eviction: First, the lease must specify when rent is due (e.g., the first of each month). Second, rent should be received late at least, and probably more than, three times during the preceding twelve-month period. Third, the owner must have documented each occurrence of late payment and have formally objected in writing on each occasion that rent was received late, either by way of letters and/or service of 3-day notices to pay rent or quit. Fourth, there should be one final “cease and desist” letter telling the tenant that if rent is received late one more time, the owner will seek to terminate the tenancy. Yet even if these criteria are met, owners who failed to object in past years, but then start demanding timely rent, will probably have waived their right to receive rent by the due date.

So in order to even contemplate an eviction for habitual late payment, the owner must be able to prove that the lease agreement clearly defines when rent is due and when it is late, and that this requirement was never “waived” by the landlord, meaning that neither the current landlord, previous owner, nor past or present property managers ever acquiesced to late payments or took any action or inaction inconsistent with the lease’s stated due date. While this may sound simple enough, a tenant who is paying low rent may be able to convince the court that management never objected to the late payments until the tenant’s rent fell below the current fair market value. The landlord could then lose the eviction.

Therefore, good landlords will object in writing to every late payment. The best form of property management is to issue a nonpayment of rent notice if rent is not received when due. Once the file reflects that the tenant has repeatedly and consistently paid the rent late, and the owner has emphatically warned the tenant that further late payments may forfeit the tenancy, an eviction may be warranted. Yet absent a clearly drafted lease and unwavering conduct by the owner, this is not a good way to terminate the landlord-tenant relationship.