[RPPTL LandTen] HB 921 and Late Fees

Wed Jan 11 12:31:49 PST 2012

I agree that late fees shouldn't fall under a usury argument.  But I've seen them challenged and thrown out using the "unconscionable" argument, especially when the late fees accrue daily and reach near or above the actual amount due for rent.  As far as I know, there is no bright line rule, seems to be a matter of judicial discretion.

Cary 

Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416 
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________________________________
 From: David Weisman <David.Weisman at gmlaw.com>
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org> 
Sent: Wednesday, January 11, 2012 3:26 PM
Subject: Re: [RPPTL LandTen] HB 921 and Late Fees

I was of the impression that late charges are not subject to usury rules since they are not mandatory. One is not obligated to be late.

David  Weisman
Board Certified Real Estate Lawyer
Greenspoon Marder, P.A.
Trade Center South, Suite 700
100 West Cypress Creek Road
Ft. Lauderdale, FL 33309
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From:landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Wednesday, January 11, 2012 2:21 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] HB 921 and Late Fees

2 items:

HB 921/SB 1830:Senator Anitere Flores is the Senate sponsor and is the Chair of the Judiciary Committee and Representative Stargel is a rental housing owner/manager. This will probably be a bill that will not die easily. It will move along.

Where does the Bar stand on this bill? Where does FAR stand? Where does Legal Services stand? As attorney for the Florida Apartment Association, we are having a call on this Friday.   Hopefully everyone can come to an early consensus to avoid time consuming stuff and fighting later unless it is decided that this should be killed and a real proper re-write done next year where we all start early, sit at a table with all groups and get something we all can agree on. (You can tell I like that idea). 

Late Charges:I generally see $35 to $100 and sometimes up to 10%.  An "average" rent is about $800.  

It technically is not usury as it is not a loan but a good argument can be made. I have seen it made in pleadings but never had it litigated.

The per diem late charges really give us a headache and can skyrocket the APR so to speak.

Please chime in on your thoughts. Once these bills begin rolling, they really take up a lot of resources.

Harry

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From:landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] 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

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