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RPPTL Real Estate Leasing Committee

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Re: [RPPTL LandTen] residential lease late fees

JA
Johnathan Ayers
Tue, Oct 2, 2018 8:30 PM

Good afternoon,

The thread referenced below contains a link to a memo on usury and late fees however I cannot open the link (it looks to be an attachment to an email but at the time it was sent I was not on the listserv).  Is it possible to get a copy of the email and the attachment?  Thank you.

Arthur J. Menor AMenor at shutts.com mailto:landten%40lists.flabarrpptl.org?Subject=Re%3A%20%5BRPPTL%20LandTen%5D%20residential%20lease%20late%20fees&In-Reply-To=%3C28539BB7F912B54CA8689D83ED6C07B1034AAD3059%40SBEXMAIL-07.shuttslaw.sb%3E
Sun Jan 22 10:41:45 PST 2012

Please see the attached contents of my personal form file on the issues of enforceability of late fee provisions in leases.  It looks like the usury argument probably does not apply to a late fee in a lease but the late fee must meet the standards for a valid liquidated damages clause.  In my personal opinion, a daily late fee or a late fee of 10% of the amount of the late payment is vulnerable to the argument that it is an unenforceable penalty rather than an enforceable liquidated damages provision.

From: landten-bounces at lists.flabarrpptl.orghttp://mailman.fsr.com/mailman/listinfo/landten [mailto:landten-bounces at lists.flabarrpptl.orghttp://mailman.fsr.com/mailman/listinfo/landten] On Behalf Of Greg Hass

Sent: Wednesday, January 11, 2012 1:32 PM

To: RPPTL Landlord Tenant Committee

Subject: [RPPTL LandTen] residential lease late fees

Our FAR "Residential Lease for Single Family Home or Duplex" has a Section 6 dealing with late fees.  It has blanks to be filled in for both the amount of the late fee and the number of days after rent is due that it becomes "late".  If left blank, the default setting is 4% of the rent payment for each rent payment made 5 days after the rent is due if paid monthly.

I'm curious to hear what the committee members thoughts are as to what the maximum the late fee can be before it is deemed unconscionably high/usury by a judge and rendered unenforceable - has anyone seen any cases on this?

Thanks,

Greg

Greg Hass, Senior Counsel

Office of Law & Policy | FloridaRealtors(r)

7025 Augusta National Drive, Orlando, FL 32822

talk: 407.438.1400, ext. 2421

visit: http://www.floridarealtors.org

The Voice for Real Estate(r) in Florida

[cid:image001.jpg at 01CCD90B.427FC840http://mailman.fsr.com/mailman/listinfo/landten]

Good afternoon, The thread referenced below contains a link to a memo on usury and late fees however I cannot open the link (it looks to be an attachment to an email but at the time it was sent I was not on the listserv). Is it possible to get a copy of the email and the attachment? Thank you. Arthur J. Menor AMenor at shutts.com <mailto:landten%40lists.flabarrpptl.org?Subject=Re%3A%20%5BRPPTL%20LandTen%5D%20residential%20lease%20late%20fees&In-Reply-To=%3C28539BB7F912B54CA8689D83ED6C07B1034AAD3059%40SBEXMAIL-07.shuttslaw.sb%3E> Sun Jan 22 10:41:45 PST 2012 * Previous message: [RPPTL LandTen] mold <http://mailman.fsr.com/pipermail/landten/2012q1/001035.html> * Next message: [RPPTL LandTen] residential lease late fees <http://mailman.fsr.com/pipermail/landten/2012q1/000947.html> * Messages sorted by: [ date ]<http://mailman.fsr.com/pipermail/landten/2012q1/date.html#946> [ thread ]<http://mailman.fsr.com/pipermail/landten/2012q1/thread.html#946> [ subject ]<http://mailman.fsr.com/pipermail/landten/2012q1/subject.html#946> [ author ]<http://mailman.fsr.com/pipermail/landten/2012q1/author.html#946> ________________________________ Please see the attached contents of my personal form file on the issues of enforceability of late fee provisions in leases. It looks like the usury argument probably does not apply to a late fee in a lease but the late fee must meet the standards for a valid liquidated damages clause. In my personal opinion, a daily late fee or a late fee of 10% of the amount of the late payment is vulnerable to the argument that it is an unenforceable penalty rather than an enforceable liquidated damages provision. From: landten-bounces at lists.flabarrpptl.org<http://mailman.fsr.com/mailman/listinfo/landten> [mailto:landten-bounces at lists.flabarrpptl.org<http://mailman.fsr.com/mailman/listinfo/landten>] On Behalf Of Greg Hass Sent: Wednesday, January 11, 2012 1:32 PM To: RPPTL Landlord Tenant Committee Subject: [RPPTL LandTen] residential lease late fees Our FAR "Residential Lease for Single Family Home or Duplex" has a Section 6 dealing with late fees. It has blanks to be filled in for both the amount of the late fee and the number of days after rent is due that it becomes "late". If left blank, the default setting is 4% of the rent payment for each rent payment made 5 days after the rent is due if paid monthly. I'm curious to hear what the committee members thoughts are as to what the maximum the late fee can be before it is deemed unconscionably high/usury by a judge and rendered unenforceable - has anyone seen any cases on this? Thanks, Greg Greg Hass, Senior Counsel Office of Law & Policy | FloridaRealtors(r) 7025 Augusta National Drive, Orlando, FL 32822 talk: 407.438.1400, ext. 2421 visit: http://www.floridarealtors.org The Voice for Real Estate(r) in Florida [cid:image001.jpg at 01CCD90B.427FC840<http://mailman.fsr.com/mailman/listinfo/landten>]
HH
Harry Heist
Tue, Oct 2, 2018 8:46 PM

I am interested in revisiting this area as well.

We have had usury as a defense raised but never litigated it. One issue is whether usury laws apply to an ongoing residential rent obligation.

The Florida Apartment Association is asking its attorney members if there are any wish list items for 2019 for changes to Section 83.  Most of the changes over the past 30 years started from the Florida Apartment Association and they retain a lobbyist for this.

If you have something, I would be happy to relay it.

Harry

LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  http://www.evict.com/ www.evict.com
Email:  mailto:harry@evict.com harry@evict.com

https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

Visit us on Facebook

THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY.  ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Johnathan Ayers
Sent: Tuesday, October 02, 2018 4:30 PM
To: 'landten@lists.flabarrpptl.org'
Subject: Re: [RPPTL LandTen] residential lease late fees

Good afternoon,

The thread referenced below contains a link to a memo on usury and late fees however I cannot open the link (it looks to be an attachment to an email but at the time it was sent I was not on the listserv).  Is it possible to get a copy of the email and the attachment?  Thank you.

Arthur J. Menor AMenor at shutts.com  mailto:landten%40lists.flabarrpptl.org?Subject=Re%3A%20%5BRPPTL%20LandTen%5D%20residential%20lease%20late%20fees&In-Reply-To=%3C28539BB7F912B54CA8689D83ED6C07B1034AAD3059%40SBEXMAIL-07.shuttslaw.sb%3E
Sun Jan 22 10:41:45 PST 2012

Please see the attached contents of my personal form file on the issues of enforceability of late fee provisions in leases.  It looks like the usury argument probably does not apply to a late fee in a lease but the late fee must meet the standards for a valid liquidated damages clause.  In my personal opinion, a daily late fee or a late fee of 10% of the amount of the late payment is vulnerable to the argument that it is an unenforceable penalty rather than an enforceable liquidated damages provision.

From: landten-bounces at lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/landten  [mailto:landten-bounces at lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/landten ] On Behalf Of Greg Hass
Sent: Wednesday, January 11, 2012 1:32 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] residential lease late fees

Our FAR "Residential Lease for Single Family Home or Duplex" has a Section 6 dealing with late fees.  It has blanks to be filled in for both the amount of the late fee and the number of days after rent is due that it becomes "late".  If left blank, the default setting is 4% of the rent payment for each rent payment made 5 days after the rent is due if paid monthly.

I'm curious to hear what the committee members thoughts are as to what the maximum the late fee can be before it is deemed unconscionably high/usury by a judge and rendered unenforceable - has anyone seen any cases on this?

Thanks,
Greg

Greg Hass, Senior Counsel

Office of Law & Policy | FloridaRealtors(r)
7025 Augusta National Drive, Orlando, FL 32822
talk: 407.438.1400, ext. 2421
visit: http://www.floridarealtors.org

The Voice for Real Estate(r) in Florida

[cid:image001.jpg at 01CCD90B.427FC840 http://mailman.fsr.com/mailman/listinfo/landten ]

I am interested in revisiting this area as well. We have had usury as a defense raised but never litigated it. One issue is whether usury laws apply to an ongoing residential rent obligation. The Florida Apartment Association is asking its attorney members if there are any wish list items for 2019 for changes to Section 83. Most of the changes over the past 30 years started from the Florida Apartment Association and they retain a lobbyist for this. If you have something, I would be happy to relay it. Harry LAW OFFICES OF HEIST, WEISSE & WOLK P.A. PH: 1 800 253 8428 FAX: 1 800 367 9038 "Serving the Property Management Professional" Website: <http://www.evict.com/> www.evict.com Email: <mailto:harry@evict.com> harry@evict.com <https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870> Visit us on Facebook THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Johnathan Ayers Sent: Tuesday, October 02, 2018 4:30 PM To: 'landten@lists.flabarrpptl.org' Subject: Re: [RPPTL LandTen] residential lease late fees Good afternoon, The thread referenced below contains a link to a memo on usury and late fees however I cannot open the link (it looks to be an attachment to an email but at the time it was sent I was not on the listserv). Is it possible to get a copy of the email and the attachment? Thank you. Arthur J. Menor AMenor at shutts.com <mailto:landten%40lists.flabarrpptl.org?Subject=Re%3A%20%5BRPPTL%20LandTen%5D%20residential%20lease%20late%20fees&In-Reply-To=%3C28539BB7F912B54CA8689D83ED6C07B1034AAD3059%40SBEXMAIL-07.shuttslaw.sb%3E> Sun Jan 22 10:41:45 PST 2012 * Previous message: [RPPTL LandTen] mold <http://mailman.fsr.com/pipermail/landten/2012q1/001035.html> * Next message: [RPPTL LandTen] residential lease late fees <http://mailman.fsr.com/pipermail/landten/2012q1/000947.html> * Messages sorted by: [ date ] <http://mailman.fsr.com/pipermail/landten/2012q1/date.html#946> [ thread ] <http://mailman.fsr.com/pipermail/landten/2012q1/thread.html#946> [ subject ] <http://mailman.fsr.com/pipermail/landten/2012q1/subject.html#946> [ author ] <http://mailman.fsr.com/pipermail/landten/2012q1/author.html#946> _____ Please see the attached contents of my personal form file on the issues of enforceability of late fee provisions in leases. It looks like the usury argument probably does not apply to a late fee in a lease but the late fee must meet the standards for a valid liquidated damages clause. In my personal opinion, a daily late fee or a late fee of 10% of the amount of the late payment is vulnerable to the argument that it is an unenforceable penalty rather than an enforceable liquidated damages provision. From: landten-bounces at lists.flabarrpptl.org <http://mailman.fsr.com/mailman/listinfo/landten> [mailto:landten-bounces at lists.flabarrpptl.org <http://mailman.fsr.com/mailman/listinfo/landten> ] On Behalf Of Greg Hass Sent: Wednesday, January 11, 2012 1:32 PM To: RPPTL Landlord Tenant Committee Subject: [RPPTL LandTen] residential lease late fees Our FAR "Residential Lease for Single Family Home or Duplex" has a Section 6 dealing with late fees. It has blanks to be filled in for both the amount of the late fee and the number of days after rent is due that it becomes "late". If left blank, the default setting is 4% of the rent payment for each rent payment made 5 days after the rent is due if paid monthly. I'm curious to hear what the committee members thoughts are as to what the maximum the late fee can be before it is deemed unconscionably high/usury by a judge and rendered unenforceable - has anyone seen any cases on this? Thanks, Greg Greg Hass, Senior Counsel Office of Law & Policy | FloridaRealtors(r) 7025 Augusta National Drive, Orlando, FL 32822 talk: 407.438.1400, ext. 2421 visit: http://www.floridarealtors.org The Voice for Real Estate(r) in Florida [cid:image001.jpg at 01CCD90B.427FC840 <http://mailman.fsr.com/mailman/listinfo/landten> ]
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