[RPPTL LandTen] residential lease late fees

Tue Oct 2 13:30:16 PDT 2018

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

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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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From: "Jack C. McElroy" <JMcElroy at shutts.com<http://mailman.fsr.com/mailman/listinfo/landten>>

Subject: Usury - Leases and Late Fees

Date: Wed, 5 May 2010 14:19:55 -0400

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</pre>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. The information in this email transmission is privileged and confidential. If you are not the intended recipient, nor the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or copying of this transmission (including any attachments) is strictly prohibited. If you have received this email in error, please notify the sender by email reply. Thank you. <pre>

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