Empathy List Archives

CS

Cary Sabol

Mon, Jun 29, 2015 6:36 PM

Hi All,
I recently had a Judge say to me that there is case law which states something to the effect of when a lease provides for a late fee to be incurred on a certain date, that is a de facto extension for the rent due date and therefore, rent is not actually "late" until after that late fee period has passed. And as such, a 3 day notice cannot be served until after the late fee period has passed.
By way of example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st and proceeds with eviction for nonpayment.
Question is: Is there case law in Florida that would indicate the 3 day notice is defective because the rent isn't technically "late" until after the Late Fee period has passed?
I have done the research but have not found anything stating this. Seems counter-intuitive to me because rent is due on the 1st per the Lease and the Late Fee period is just an additional penalty. And what if you take that argument to the logical extension and say, well the Lease does not provide for any late fee date at all, so rent is therefore, never late.
Anybody have any case law or comments on this issue?
Cary Law Offices of Cary P. SabolP.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.

Hi All, I recently had a Judge say to me that there is case law which states something to the effect of when a lease provides for a late fee to be incurred on a certain date, that is a de facto extension for the rent due date and therefore, rent is not actually "late" until after that late fee period has passed. And as such, a 3 day notice cannot be served until after the late fee period has passed. By way of example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st and proceeds with eviction for nonpayment. Question is: Is there case law in Florida that would indicate the 3 day notice is defective because the rent isn't technically "late" until after the Late Fee period has passed? I have done the research but have not found anything stating this. Seems counter-intuitive to me because rent is due on the 1st per the Lease and the Late Fee period is just an additional penalty. And what if you take that argument to the logical extension and say, well the Lease does not provide for any late fee date at all, so rent is therefore, never late. Anybody have any case law or comments on this issue? Cary Law Offices of Cary P. SabolP.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.

MF

Manuel Farach

Mon, Jun 29, 2015 7:50 PM

Cary,
I haven’t seen a case that says what the judge told you; I’m interested in seeing that case when/if you find it
Manny

[cid:image84e42a.GIF@492ea519.49ac8ff2]

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
V-cardhttp://richmangreer.com/uploads/vcards/VcardFarach.vcf

www.RichmanGreer.com http://www.RichmanGreer.com

U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.

Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Monday, June 29, 2015 2:37 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Late Fee Question

Hi All,

I recently had a Judge say to me that there is case law which states something to the effect of when a lease provides for a late fee to be incurred on a certain date, that is a de facto extension for the rent due date and therefore, rent is not actually "late" until after that late fee period has passed. And as such, a 3 day notice cannot be served until after the late fee period has passed.

By way of example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st and proceeds with eviction for nonpayment.

Question is: Is there case law in Florida that would indicate the 3 day notice is defective because the rent isn't technically "late" until after the Late Fee period has passed?

I have done the research but have not found anything stating this. Seems counter-intuitive to me because rent is due on the 1st per the Lease and the Late Fee period is just an additional penalty. And what if you take that argument to the logical extension and say, well the Lease does not provide for any late fee date at all, so rent is therefore, never late.

Anybody have any case law or comments on this issue?

Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744

IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.

Cary, I haven’t seen a case that says what the judge told you; I’m interested in seeing that case when/if you find it Manny ________________________________ [cid:image84e42a.GIF@492ea519.49ac8ff2] Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar Richman Greer P.A. One Clearlake Centre Suite 1504 250 Australian Avenue South West Palm Beach, Florida 33401 Office: 561.803.3500 Fax: 561.820.1608 Direct: 561.803.3501 Email: MFarach@richmangreer.com V-card<http://richmangreer.com/uploads/vcards/VcardFarach.vcf> www.RichmanGreer.com<http://www.RichmanGreer.com> U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service. Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message. ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol Sent: Monday, June 29, 2015 2:37 PM To: RPPTL Landlord Tenant Committee Subject: [RPPTL LandTen] Late Fee Question Hi All, I recently had a Judge say to me that there is case law which states something to the effect of when a lease provides for a late fee to be incurred on a certain date, that is a de facto extension for the rent due date and therefore, rent is not actually "late" until after that late fee period has passed. And as such, a 3 day notice cannot be served until after the late fee period has passed. By way of example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st and proceeds with eviction for nonpayment. Question is: Is there case law in Florida that would indicate the 3 day notice is defective because the rent isn't technically "late" until after the Late Fee period has passed? I have done the research but have not found anything stating this. Seems counter-intuitive to me because rent is due on the 1st per the Lease and the Late Fee period is just an additional penalty. And what if you take that argument to the logical extension and say, well the Lease does not provide for any late fee date at all, so rent is therefore, never late. Anybody have any case law or comments on this issue? Cary Law Offices of Cary P. Sabol P.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 ________________________________ IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.

CS

Cary Sabol

Mon, Jun 29, 2015 7:54 PM

Thanks for the reply Manny. I don't believe there is anything, but of course, as a lawyer, I give great deference to the Judge's opinion on the issue.
Any other Member comments or guidance would be greatly appreciated.
Cary Law Offices of Cary P. SabolP.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.
From: Manuel Farach MFarach@richmangreer.com
To: Cary Sabol sabollawoffice@yahoo.com; RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Sent: Monday, June 29, 2015 3:50 PM
Subject: RE: [RPPTL LandTen] Late Fee Question

#yiv7560494480 #yiv7560494480 -- _filtered #yiv7560494480 {font-family:Helvetica;panose-1:2 11 6 4 2 2 2 2 2 4;} _filtered #yiv7560494480 {font-family:Helvetica;panose-1:2 11 6 4 2 2 2 2 2 4;} _filtered #yiv7560494480 {font-family:Calibri;panose-1:2 15 5 2 2 2 4 3 2 4;} _filtered #yiv7560494480 {font-family:Tahoma;panose-1:2 11 6 4 3 5 4 4 2 4;} _filtered #yiv7560494480 {panose-1:2 5 6 4 5 5 5 2 2 4;}#yiv7560494480 #yiv7560494480 p.yiv7560494480MsoNormal, #yiv7560494480 li.yiv7560494480MsoNormal, #yiv7560494480 div.yiv7560494480MsoNormal {margin:0in;margin-bottom:.0001pt;font-size:12.0pt;}#yiv7560494480 a:link, #yiv7560494480 span.yiv7560494480MsoHyperlink {color:blue;text-decoration:underline;}#yiv7560494480 a:visited, #yiv7560494480 span.yiv7560494480MsoHyperlinkFollowed {color:purple;text-decoration:underline;}#yiv7560494480 span.yiv7560494480EmailStyle18 {color:#1F497D;}#yiv7560494480 .yiv7560494480MsoChpDefault {font-size:10.0pt;} _filtered #yiv7560494480 {margin:1.0in 1.0in 1.0in 1.0in;}#yiv7560494480 div.yiv7560494480WordSection1 {}#yiv7560494480 Cary, I haven’t seen a case that says what the judge told you; I’m interested in seeing that case when/if you find it Manny Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida BarRichman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
V-cardwww.RichmanGreer.comU.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org]On Behalf Of Cary Sabol
Sent: Monday, June 29, 2015 2:37 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Late Fee Question Hi All, I recently had a Judge say to me that there is case law which states something to the effect of when a lease provides for a late fee to be incurred on a certain date, that is a de facto extension for the rent due date and therefore, rent is not actually "late" until after that late fee period has passed. And as such, a 3 day notice cannot be served until after the late fee period has passed. By way of example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st and proceeds with eviction for nonpayment. Question is: Is there case law in Florida that would indicate the 3 day notice is defective because the rent isn't technically "late" until after the Late Fee period has passed? I have done the research but have not found anything stating this. Seems counter-intuitive to me because rent is due on the 1st per the Lease and the Late Fee period is just an additional penalty. And what if you take that argument to the logical extension and say, well the Lease does not provide for any late fee date at all, so rent is therefore, never late. Anybody have any case law or comments on this issue? Cary Law Offices of Cary P. Sabol P.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.

Thanks for the reply Manny. I don't believe there is anything, but of course, as a lawyer, I give great deference to the Judge's opinion on the issue. Any other Member comments or guidance would be greatly appreciated. Cary Law Offices of Cary P. SabolP.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation. From: Manuel Farach <MFarach@richmangreer.com> To: Cary Sabol <sabollawoffice@yahoo.com>; RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org> Sent: Monday, June 29, 2015 3:50 PM Subject: RE: [RPPTL LandTen] Late Fee Question #yiv7560494480 #yiv7560494480 -- _filtered #yiv7560494480 {font-family:Helvetica;panose-1:2 11 6 4 2 2 2 2 2 4;} _filtered #yiv7560494480 {font-family:Helvetica;panose-1:2 11 6 4 2 2 2 2 2 4;} _filtered #yiv7560494480 {font-family:Calibri;panose-1:2 15 5 2 2 2 4 3 2 4;} _filtered #yiv7560494480 {font-family:Tahoma;panose-1:2 11 6 4 3 5 4 4 2 4;} _filtered #yiv7560494480 {panose-1:2 5 6 4 5 5 5 2 2 4;}#yiv7560494480 #yiv7560494480 p.yiv7560494480MsoNormal, #yiv7560494480 li.yiv7560494480MsoNormal, #yiv7560494480 div.yiv7560494480MsoNormal {margin:0in;margin-bottom:.0001pt;font-size:12.0pt;}#yiv7560494480 a:link, #yiv7560494480 span.yiv7560494480MsoHyperlink {color:blue;text-decoration:underline;}#yiv7560494480 a:visited, #yiv7560494480 span.yiv7560494480MsoHyperlinkFollowed {color:purple;text-decoration:underline;}#yiv7560494480 span.yiv7560494480EmailStyle18 {color:#1F497D;}#yiv7560494480 .yiv7560494480MsoChpDefault {font-size:10.0pt;} _filtered #yiv7560494480 {margin:1.0in 1.0in 1.0in 1.0in;}#yiv7560494480 div.yiv7560494480WordSection1 {}#yiv7560494480 Cary, I haven’t seen a case that says what the judge told you; I’m interested in seeing that case when/if you find it Manny Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida BarRichman Greer P.A. One Clearlake Centre Suite 1504 250 Australian Avenue South West Palm Beach, Florida 33401 Office: 561.803.3500 Fax: 561.820.1608 Direct: 561.803.3501 Email: MFarach@richmangreer.com V-cardwww.RichmanGreer.comU.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org]On Behalf Of Cary Sabol Sent: Monday, June 29, 2015 2:37 PM To: RPPTL Landlord Tenant Committee Subject: [RPPTL LandTen] Late Fee Question Hi All, I recently had a Judge say to me that there is case law which states something to the effect of when a lease provides for a late fee to be incurred on a certain date, that is a de facto extension for the rent due date and therefore, rent is not actually "late" until after that late fee period has passed. And as such, a 3 day notice cannot be served until after the late fee period has passed. By way of example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st and proceeds with eviction for nonpayment. Question is: Is there case law in Florida that would indicate the 3 day notice is defective because the rent isn't technically "late" until after the Late Fee period has passed? I have done the research but have not found anything stating this. Seems counter-intuitive to me because rent is due on the 1st per the Lease and the Late Fee period is just an additional penalty. And what if you take that argument to the logical extension and say, well the Lease does not provide for any late fee date at all, so rent is therefore, never late. Anybody have any case law or comments on this issue? Cary Law Offices of Cary P. Sabol P.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.

JM

Jeff Mazor

Mon, Jun 29, 2015 8:44 PM

A default occurs when tenant does not pay on or before the later of the due date and/or any grace period.

A late charge can be imposed before or after the due date. It is in addition to the rent.

'Don't know of any such case, although there are some cases indicating that a Demand for Holdover Rent, if "accepted" by the tenant paying the double rent, is tantamount to an agreement to lease month to month at that double rent amount.

In your situation, there is nothing that could be considered an offer.

{Definition from Star Trek: "norman coordinate" - A response to being presented with a situation or hearing an utterance that is illogical and/or incoherent to the point of causing a mental short-circuit.}

Jeffrey R. Mazor, Esq.
J. R. Mazor & Associates, P.A.
Presidential Circle Building
4000 Hollywood Blvd., Suite 265-s
Hollywood, FL 33021
Email: JMazor@Mazor.com
Phone: 954-962-3500
Fax: 954-342-7703

-----Original Message-----
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Monday, June 29, 2015 3:55 PM
To: Manuel Farach; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Late Fee Question

Thanks for the reply Manny. I don't believe there is anything, but of course, as a lawyer, I give great deference to the Judge's opinion on the issue.

Any other Member comments or guidance would be greatly appreciated.

Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744

From: Manuel Farach MFarach@richmangreer.com
To: Cary Sabol sabollawoffice@yahoo.com; RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Sent: Monday, June 29, 2015 3:50 PM
Subject: RE: [RPPTL LandTen] Late Fee Question

Cary,
I haven’t seen a case that says what the judge told you; I’m interested in seeing that case when/if you find it
Manny

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Monday, June 29, 2015 2:37 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Late Fee Question

Hi All,

I recently had a Judge say to me that there is case law which states something to the effect of when a lease provides for a late fee to be incurred on a certain date, that is a de facto extension for the rent due date and therefore, rent is not actually "late" until after that late fee period has passed. And as such, a 3 day notice cannot be served until after the late fee period has passed.

By way of example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st and proceeds with eviction for nonpayment.

Question is: Is there case law in Florida that would indicate the 3 day notice is defective because the rent isn't technically "late" until after the Late Fee period has passed?

I have done the research but have not found anything stating this. Seems counter-intuitive to me because rent is due on the 1st per the Lease and the Late Fee period is just an additional penalty. And what if you take that argument to the logical extension and say, well the Lease does not provide for any late fee date at all, so rent is therefore, never late.

Anybody have any case law or comments on this issue?

Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744

IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

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A default occurs when tenant does not pay on or before the later of the due date and/or any grace period. A late charge can be imposed before or after the due date. It is in addition to the rent. 'Don't know of any such case, although there are some cases indicating that a Demand for Holdover Rent, if "accepted" by the tenant paying the double rent, is tantamount to an agreement to lease month to month at that double rent amount. In your situation, there is nothing that could be considered an offer. {Definition from Star Trek: "norman coordinate" - A response to being presented with a situation or hearing an utterance that is illogical and/or incoherent to the point of causing a mental short-circuit.} Jeffrey R. Mazor, Esq. J. R. Mazor & Associates, P.A. Presidential Circle Building 4000 Hollywood Blvd., Suite 265-s Hollywood, FL 33021 Email: JMazor@Mazor.com Phone: 954-962-3500 Fax: 954-342-7703 -----Original Message----- From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol Sent: Monday, June 29, 2015 3:55 PM To: Manuel Farach; RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Late Fee Question Thanks for the reply Manny. I don't believe there is anything, but of course, as a lawyer, I give great deference to the Judge's opinion on the issue. Any other Member comments or guidance would be greatly appreciated. Cary Law Offices of Cary P. Sabol P.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 ________________________________ From: Manuel Farach <MFarach@richmangreer.com> To: Cary Sabol <sabollawoffice@yahoo.com>; RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org> Sent: Monday, June 29, 2015 3:50 PM Subject: RE: [RPPTL LandTen] Late Fee Question Cary, I haven’t seen a case that says what the judge told you; I’m interested in seeing that case when/if you find it Manny ________________________________ Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar Richman Greer P.A. One Clearlake Centre Suite 1504 250 Australian Avenue South West Palm Beach, Florida 33401 Office: 561.803.3500 Fax: 561.820.1608 Direct: 561.803.3501 Email: MFarach@richmangreer.com ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol Sent: Monday, June 29, 2015 2:37 PM To: RPPTL Landlord Tenant Committee Subject: [RPPTL LandTen] Late Fee Question Hi All, I recently had a Judge say to me that there is case law which states something to the effect of when a lease provides for a late fee to be incurred on a certain date, that is a de facto extension for the rent due date and therefore, rent is not actually "late" until after that late fee period has passed. And as such, a 3 day notice cannot be served until after the late fee period has passed. By way of example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st and proceeds with eviction for nonpayment. Question is: Is there case law in Florida that would indicate the 3 day notice is defective because the rent isn't technically "late" until after the Late Fee period has passed? I have done the research but have not found anything stating this. Seems counter-intuitive to me because rent is due on the 1st per the Lease and the Late Fee period is just an additional penalty. And what if you take that argument to the logical extension and say, well the Lease does not provide for any late fee date at all, so rent is therefore, never late. Anybody have any case law or comments on this issue? Cary Law Offices of Cary P. Sabol P.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 ________________________________ IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.

LC

Leonard Cabral

Mon, Jun 29, 2015 11:37 PM

Using your example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st. If the landlord included the $50 in the notice the notice is defective because the late fee was not yet due. In other words the landlord was demanding money in the 3 day notice on the third of the month that could not be charged until the 5th day of the month. In my opinion that is a good counterclaim for a FCCPA violation.
Leonard P. Cabral
Leonardcabral@lenslaw.com

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Monday, June 29, 2015 2:37 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Late Fee Question

Hi All,

I recently had a Judge say to me that there is case law which states something to the effect of when a lease provides for a late fee to be incurred on a certain date, that is a de facto extension for the rent due date and therefore, rent is not actually "late" until after that late fee period has passed. And as such, a 3 day notice cannot be served until after the late fee period has passed.

By way of example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st and proceeds with eviction for nonpayment.

Question is: Is there case law in Florida that would indicate the 3 day notice is defective because the rent isn't technically "late" until after the Late Fee period has passed?

I have done the research but have not found anything stating this. Seems counter-intuitive to me because rent is due on the 1st per the Lease and the Late Fee period is just an additional penalty. And what if you take that argument to the logical extension and say, well the Lease does not provide for any late fee date at all, so rent is therefore, never late.

Anybody have any case law or comments on this issue?

Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744

IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.

Using your example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st. If the landlord included the $50 in the notice the notice is defective because the late fee was not yet due. In other words the landlord was demanding money in the 3 day notice on the third of the month that could not be charged until the 5th day of the month. In my opinion that is a good counterclaim for a FCCPA violation. Leonard P. Cabral Leonardcabral@lenslaw.com From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol Sent: Monday, June 29, 2015 2:37 PM To: RPPTL Landlord Tenant Committee Subject: [RPPTL LandTen] Late Fee Question Hi All, I recently had a Judge say to me that there is case law which states something to the effect of when a lease provides for a late fee to be incurred on a certain date, that is a de facto extension for the rent due date and therefore, rent is not actually "late" until after that late fee period has passed. And as such, a 3 day notice cannot be served until after the late fee period has passed. By way of example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st and proceeds with eviction for nonpayment. Question is: Is there case law in Florida that would indicate the 3 day notice is defective because the rent isn't technically "late" until after the Late Fee period has passed? I have done the research but have not found anything stating this. Seems counter-intuitive to me because rent is due on the 1st per the Lease and the Late Fee period is just an additional penalty. And what if you take that argument to the logical extension and say, well the Lease does not provide for any late fee date at all, so rent is therefore, never late. Anybody have any case law or comments on this issue? Cary Law Offices of Cary P. Sabol P.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 ________________________________ IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.

CS

Cary Sabol

Mon, Jun 29, 2015 11:41 PM

Thanks for your input Leonard and I agree with you. However, that's not quite the issue I am looking for. As for the example, it assumes that no late fees were requested in the 3 day notice.
CaryLaw Offices of Cary P. SabolP.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.
From: Leonard Cabral LensLaw@Lenslaw.com
To: Cary Sabol sabollawoffice@yahoo.com; RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Sent: Monday, June 29, 2015 7:37 PM
Subject: RE: [RPPTL LandTen] Late Fee Question

#yiv6915667837 #yiv6915667837 -- _filtered #yiv6915667837 {font-family:Helvetica;panose-1:2 11 6 4 2 2 2 2 2 4;} _filtered #yiv6915667837 {panose-1:2 4 5 3 5 4 6 3 2 4;} _filtered #yiv6915667837 {font-family:Calibri;panose-1:2 15 5 2 2 2 4 3 2 4;} _filtered #yiv6915667837 {font-family:Tahoma;panose-1:2 11 6 4 3 5 4 4 2 4;} _filtered #yiv6915667837 {panose-1:2 5 6 4 5 5 5 2 2 4;}#yiv6915667837 #yiv6915667837 p.yiv6915667837MsoNormal, #yiv6915667837 li.yiv6915667837MsoNormal, #yiv6915667837 div.yiv6915667837MsoNormal {margin:0in;margin-bottom:.0001pt;font-size:12.0pt;}#yiv6915667837 a:link, #yiv6915667837 span.yiv6915667837MsoHyperlink {color:blue;text-decoration:underline;}#yiv6915667837 a:visited, #yiv6915667837 span.yiv6915667837MsoHyperlinkFollowed {color:purple;text-decoration:underline;}#yiv6915667837 span.yiv6915667837EmailStyle18 {color:#1F497D;letter-spacing:0pt;font-weight:normal;font-style:normal;text-decoration:none none;}#yiv6915667837 .yiv6915667837MsoChpDefault {font-size:10.0pt;} _filtered #yiv6915667837 {margin:1.0in 1.0in 1.0in 1.0in;}#yiv6915667837 div.yiv6915667837WordSection1 {}#yiv6915667837 Using your example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st. If the landlord included the $50 in the notice the notice is defective because the late fee was not yet due. In other words the landlord was demanding money in the 3 day notice on the third of the month that could not be charged until the 5th day of the month. In my opinion that is a good counterclaim for a FCCPA violation. Leonard P. Cabral Leonardcabral@lenslaw.com

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org]On Behalf Of Cary Sabol
Sent: Monday, June 29, 2015 2:37 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Late Fee Question Hi All, I recently had a Judge say to me that there is case law which states something to the effect of when a lease provides for a late fee to be incurred on a certain date, that is a de facto extension for the rent due date and therefore, rent is not actually "late" until after that late fee period has passed. And as such, a 3 day notice cannot be served until after the late fee period has passed. By way of example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st and proceeds with eviction for nonpayment. Question is: Is there case law in Florida that would indicate the 3 day notice is defective because the rent isn't technically "late" until after the Late Fee period has passed? I have done the research but have not found anything stating this. Seems counter-intuitive to me because rent is due on the 1st per the Lease and the Late Fee period is just an additional penalty. And what if you take that argument to the logical extension and say, well the Lease does not provide for any late fee date at all, so rent is therefore, never late. Anybody have any case law or comments on this issue? Cary Law Offices of Cary P. Sabol P.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.

Thanks for your input Leonard and I agree with you. However, that's not quite the issue I am looking for. As for the example, it assumes that no late fees were requested in the 3 day notice. CaryLaw Offices of Cary P. SabolP.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation. From: Leonard Cabral <LensLaw@Lenslaw.com> To: Cary Sabol <sabollawoffice@yahoo.com>; RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org> Sent: Monday, June 29, 2015 7:37 PM Subject: RE: [RPPTL LandTen] Late Fee Question #yiv6915667837 #yiv6915667837 -- _filtered #yiv6915667837 {font-family:Helvetica;panose-1:2 11 6 4 2 2 2 2 2 4;} _filtered #yiv6915667837 {panose-1:2 4 5 3 5 4 6 3 2 4;} _filtered #yiv6915667837 {font-family:Calibri;panose-1:2 15 5 2 2 2 4 3 2 4;} _filtered #yiv6915667837 {font-family:Tahoma;panose-1:2 11 6 4 3 5 4 4 2 4;} _filtered #yiv6915667837 {panose-1:2 5 6 4 5 5 5 2 2 4;}#yiv6915667837 #yiv6915667837 p.yiv6915667837MsoNormal, #yiv6915667837 li.yiv6915667837MsoNormal, #yiv6915667837 div.yiv6915667837MsoNormal {margin:0in;margin-bottom:.0001pt;font-size:12.0pt;}#yiv6915667837 a:link, #yiv6915667837 span.yiv6915667837MsoHyperlink {color:blue;text-decoration:underline;}#yiv6915667837 a:visited, #yiv6915667837 span.yiv6915667837MsoHyperlinkFollowed {color:purple;text-decoration:underline;}#yiv6915667837 span.yiv6915667837EmailStyle18 {color:#1F497D;letter-spacing:0pt;font-weight:normal;font-style:normal;text-decoration:none none;}#yiv6915667837 .yiv6915667837MsoChpDefault {font-size:10.0pt;} _filtered #yiv6915667837 {margin:1.0in 1.0in 1.0in 1.0in;}#yiv6915667837 div.yiv6915667837WordSection1 {}#yiv6915667837 Using your example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st. If the landlord included the $50 in the notice the notice is defective because the late fee was not yet due. In other words the landlord was demanding money in the 3 day notice on the third of the month that could not be charged until the 5th day of the month. In my opinion that is a good counterclaim for a FCCPA violation. Leonard P. Cabral Leonardcabral@lenslaw.com From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org]On Behalf Of Cary Sabol Sent: Monday, June 29, 2015 2:37 PM To: RPPTL Landlord Tenant Committee Subject: [RPPTL LandTen] Late Fee Question Hi All, I recently had a Judge say to me that there is case law which states something to the effect of when a lease provides for a late fee to be incurred on a certain date, that is a de facto extension for the rent due date and therefore, rent is not actually "late" until after that late fee period has passed. And as such, a 3 day notice cannot be served until after the late fee period has passed. By way of example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st and proceeds with eviction for nonpayment. Question is: Is there case law in Florida that would indicate the 3 day notice is defective because the rent isn't technically "late" until after the Late Fee period has passed? I have done the research but have not found anything stating this. Seems counter-intuitive to me because rent is due on the 1st per the Lease and the Late Fee period is just an additional penalty. And what if you take that argument to the logical extension and say, well the Lease does not provide for any late fee date at all, so rent is therefore, never late. Anybody have any case law or comments on this issue? Cary Law Offices of Cary P. Sabol P.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.

DM

Deborah Marks

Tue, Jun 30, 2015 4:38 AM

Unless the lease says that the late fee is to be treated as additional rent it can't be included in any 3 day letter- no matter when you send it.

Deborah Marks
Deborah Marks, PA
18495 S. Dixie Hwy
Ste 134
Miami, FL 33157
305-372-9400

Sent from my iPhone

On Jun 29, 2015, at 7:37 PM, Leonard Cabral LensLaw@Lenslaw.com wrote:

Using your example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st. If the landlord included the $50 in the notice the notice is defective because the late fee was not yet due. In other words the landlord was demanding money in the 3 day notice on the third of the month that could not be charged until the 5th day of the month. In my opinion that is a good counterclaim for a FCCPA violation.
Leonard P. Cabral
Leonardcabral@lenslaw.com

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Monday, June 29, 2015 2:37 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Late Fee Question

Hi All,

I recently had a Judge say to me that there is case law which states something to the effect of when a lease provides for a late fee to be incurred on a certain date, that is a de facto extension for the rent due date and therefore, rent is not actually "late" until after that late fee period has passed. And as such, a 3 day notice cannot be served until after the late fee period has passed.

By way of example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st and proceeds with eviction for nonpayment.

Question is: Is there case law in Florida that would indicate the 3 day notice is defective because the rent isn't technically "late" until after the Late Fee period has passed?

I have done the research but have not found anything stating this. Seems counter-intuitive to me because rent is due on the 1st per the Lease and the Late Fee period is just an additional penalty. And what if you take that argument to the logical extension and say, well the Lease does not provide for any late fee date at all, so rent is therefore, never late.

Anybody have any case law or comments on this issue?

Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.

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Unless the lease says that the late fee is to be treated as additional rent it can't be included in any 3 day letter- no matter when you send it. Deborah Marks Deborah Marks, PA 18495 S. Dixie Hwy Ste 134 Miami, FL 33157 305-372-9400 Sent from my iPhone > On Jun 29, 2015, at 7:37 PM, Leonard Cabral <LensLaw@Lenslaw.com> wrote: > > Using your example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st. If the landlord included the $50 in the notice the notice is defective because the late fee was not yet due. In other words the landlord was demanding money in the 3 day notice on the third of the month that could not be charged until the 5th day of the month. In my opinion that is a good counterclaim for a FCCPA violation. > Leonard P. Cabral > Leonardcabral@lenslaw.com > > > > > From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol > Sent: Monday, June 29, 2015 2:37 PM > To: RPPTL Landlord Tenant Committee > Subject: [RPPTL LandTen] Late Fee Question > > Hi All, > > I recently had a Judge say to me that there is case law which states something to the effect of when a lease provides for a late fee to be incurred on a certain date, that is a de facto extension for the rent due date and therefore, rent is not actually "late" until after that late fee period has passed. And as such, a 3 day notice cannot be served until after the late fee period has passed. > > By way of example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st and proceeds with eviction for nonpayment. > > Question is: Is there case law in Florida that would indicate the 3 day notice is defective because the rent isn't technically "late" until after the Late Fee period has passed? > > I have done the research but have not found anything stating this. Seems counter-intuitive to me because rent is due on the 1st per the Lease and the Late Fee period is just an additional penalty. And what if you take that argument to the logical extension and say, well the Lease does not provide for any late fee date at all, so rent is therefore, never late. > > Anybody have any case law or comments on this issue? > > Cary > Law Offices of Cary P. Sabol > P.O. Box 15981 | West Palm Beach | Florida | 33416 > Phone: (561) 281-2744 > IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. > > Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation. > _______________________________________________ > landten mailing list > landten@lists.flabarrpptl.org > http://mailman.fsr.com/mailman/listinfo/landten

LC

Leonard Cabral

Wed, Jul 1, 2015 8:28 PM

Thanks, I forgot to put that part in the response.
Leonard Cabral

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Deborah Marks
Sent: Tuesday, June 30, 2015 12:38 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Late Fee Question

Unless the lease says that the late fee is to be treated as additional rent it can't be included in any 3 day letter- no matter when you send it.

Deborah Marks
Deborah Marks, PA
18495 S. Dixie Hwy
Ste 134
Miami, FL 33157
305-372-9400

Sent from my iPhone

On Jun 29, 2015, at 7:37 PM, Leonard Cabral <LensLaw@Lenslaw.com mailto:LensLaw@Lenslaw.com> wrote:
Using your example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st. If the landlord included the $50 in the notice the notice is defective because the late fee was not yet due. In other words the landlord was demanding money in the 3 day notice on the third of the month that could not be charged until the 5th day of the month. In my opinion that is a good counterclaim for a FCCPA violation.
Leonard P. Cabral
Leonardcabral@lenslaw.com mailto:Leonardcabral@lenslaw.com

From: landten-bounces@lists.flabarrpptl.org mailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Monday, June 29, 2015 2:37 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Late Fee Question

Hi All,

I recently had a Judge say to me that there is case law which states something to the effect of when a lease provides for a late fee to be incurred on a certain date, that is a de facto extension for the rent due date and therefore, rent is not actually "late" until after that late fee period has passed. And as such, a 3 day notice cannot be served until after the late fee period has passed.

By way of example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st and proceeds with eviction for nonpayment.

Question is: Is there case law in Florida that would indicate the 3 day notice is defective because the rent isn't technically "late" until after the Late Fee period has passed?

I have done the research but have not found anything stating this. Seems counter-intuitive to me because rent is due on the 1st per the Lease and the Late Fee period is just an additional penalty. And what if you take that argument to the logical extension and say, well the Lease does not provide for any late fee date at all, so rent is therefore, never late.

Anybody have any case law or comments on this issue?

Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744

IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.

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Thanks, I forgot to put that part in the response. Leonard Cabral From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Deborah Marks Sent: Tuesday, June 30, 2015 12:38 AM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Late Fee Question Unless the lease says that the late fee is to be treated as additional rent it can't be included in any 3 day letter- no matter when you send it. Deborah Marks Deborah Marks, PA 18495 S. Dixie Hwy Ste 134 Miami, FL 33157 305-372-9400 Sent from my iPhone On Jun 29, 2015, at 7:37 PM, Leonard Cabral <LensLaw@Lenslaw.com<mailto:LensLaw@Lenslaw.com>> wrote: Using your example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st. If the landlord included the $50 in the notice the notice is defective because the late fee was not yet due. In other words the landlord was demanding money in the 3 day notice on the third of the month that could not be charged until the 5th day of the month. In my opinion that is a good counterclaim for a FCCPA violation. Leonard P. Cabral Leonardcabral@lenslaw.com<mailto:Leonardcabral@lenslaw.com> From: landten-bounces@lists.flabarrpptl.org<mailto:landten-bounces@lists.flabarrpptl.org> [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol Sent: Monday, June 29, 2015 2:37 PM To: RPPTL Landlord Tenant Committee Subject: [RPPTL LandTen] Late Fee Question Hi All, I recently had a Judge say to me that there is case law which states something to the effect of when a lease provides for a late fee to be incurred on a certain date, that is a de facto extension for the rent due date and therefore, rent is not actually "late" until after that late fee period has passed. And as such, a 3 day notice cannot be served until after the late fee period has passed. By way of example. Lease says rent is due on the 1st. Lease says a Late Fee of $50.00 will be incurred if not paid by the 5th. Landlord serves 3 day notice on the 3rd since rent was not received by the 1st and proceeds with eviction for nonpayment. Question is: Is there case law in Florida that would indicate the 3 day notice is defective because the rent isn't technically "late" until after the Late Fee period has passed? I have done the research but have not found anything stating this. Seems counter-intuitive to me because rent is due on the 1st per the Lease and the Late Fee period is just an additional penalty. And what if you take that argument to the logical extension and say, well the Lease does not provide for any late fee date at all, so rent is therefore, never late. Anybody have any case law or comments on this issue? Cary Law Offices of Cary P. Sabol P.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 ________________________________ IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation. _______________________________________________ landten mailing list landten@lists.flabarrpptl.org<mailto:landten@lists.flabarrpptl.org> http://mailman.fsr.com/mailman/listinfo/landten