Illegal Eviction?

In short, LL unlawful detainer against us, (we have 5 children and live in UT) in January because we didn't pay the full amount of late fees stipulated in the lease, though we had a verbal agreement that we would pay a flat fee of $40 per month. The lease stated $15.00 per day each day after the 5th day. Husband signed without looking, and i felt that this was excessive. Anyway, he claimed he served a 3 day remedy or quit, charging $465 owing in late fees. I did answer that, he had already cashed the check for Jan rent, and we went to court. In stead of changing the amount of the late charges, we agreed to change the due date because my husbands pay periods always fall between the 9th and 15th of the month. He paid his own attorneys fees, but on the phone the dy of court, he kept trying to get me not to go to court. I kow better than that-DEFAULT JUDGEMENT? DUH!!! I used to be a court clerk. The judge agreed to the stipulated change in the due date of the rent, but held the rest of the agreement to be valid. On the 12th of this month, I received an email stating that he was going to have the case referred back to the judge. The only part of the lease that was changed was the due date, but the nest clause in the lease(6) is the 5 day grace period, which is still valid. I received a notice in the mail fron his attorney Affadvit of intent to file an order? Never seen this, and don't know what it means. It doesn't have a court date, and doesn't ask for an answer, and the rent for Feb has been paid, since the 14th, what does this mean? Also, requested a plumbing repair at the end of last month, and have gotten no response. Water leaking into the basement when you drain the tub in the master bath. I am thinking this is retaliatory, and he really was adament that I not show up in court, and was Not happy when I did. Can you explain what I should do next? I really wouldn't mind moving, but would like to wait until the end of the school year, I have children in school, and 2 on the BB team, and the rental market is really tight in this district. My lease ends April 30.

Thanks, MReynolds

[OHlandlord]

There are several things about your post that need clearing up. 1) When you went to court last time, you agreed that rent would fall due when? It can't be some vague time between the 9th and the 15th. It must be an actual date. If there was no date in that agreement, that may be why he needs to have the order filed. There must be a set date when the rent falls due. What did the written order from the judge or court say? It must be in writing to change your due date. I am not familiar with the motion of an "intent to file an order". 2) Does the letter give you any indication of what type of order he intends to file? If not, you'll just have to wait and see what it is.

Additionally, if you change the date rent is due from the first to (about) the 15th, you will have to pay a pro-rated 1/2 month of rent in there. You don't get a 1/2 month of rent for free just because you have the due date changed. You paid before from 1st to 1st (with the 5 day grace period). Now rent won't come due until the 15th. The LL is entitled to the rent from the 1st of the month until that new date (approximately the 15th of the month). Plan on having to make this payment as soon as this new due date is in writing.

And yes, even with the 5 day grace period that is written into the lease, the rent is due on the 1st, late on the 2nd, but the LL agrees that he won't charge you late fees until the 5th (the grace period). Do not mistake a grace period for a change in the rent due date. It is only the date the late fees will be charged. Rent is still late before that. If the lease specifies the 1st of the month, that is the due date. The grace period is only a temporary respite from paying the fees, not a change of when rent falls due.

Next, your verbal agreement of one flat late fee means nothing. Verbal agreements do not hold up in court. Your lease states a set late fee. I found no statute on a late fee limit for UT. Contrary to any other written agreement signed by the tenant & LL, or any order from the court claiming the late fees to be excessive, your lease clause on late fees stands. I would suggest you get the new due date in writing, then be sure you pay on time from then on.

3) One last thing, when does your lease end? You do not say how long you have lived at this unit or how long the lease is, or even if it has ever been renewed. I cannot say for sure, but I am guessing it will not be renewed at its end by the LL. You should start planning to move well before that. Since you have already had a UD filed against you once (even if he did not finish the case), it will be harder to find a LL who will take you. Once this is filed, it stays in your court records. It is a public record that anyone (and any LL) can see. Most LLs don't care whether you won or lost this case. Just having one filed is enough to disqualify you from many places. (Sorry, but that is how it is.) Start looking for a place 60 days before the lease is up and remember to give proper notice of intent to vacate when you leave. Please answer the 3 questions asked and I may be able to give you more info.

Finally, in order to get the plumbing fixed, you cannot just ask the LL to do it. (This is the same as a verbal agreement - it doesn't stand up in court.) Put the request in writing and send it to him by certified mail, return receipt requested, and keep a copy for yourself. If he does not make repairs within 30 days (since it is not an emergency problem), then you may be able to have the court order him to fix it or to call the health department or building/code inspector on this. But send the request first or it will be you that looks like you are retaliating.

Sorry, It was late when I wrote that, I know it was a little unclear. We agreed to change the due date to the 11th of the month. We moved in on the 9th of April, and the rent was not pro-rated to the first then. Our rent is usually $1200, but this month we paid $1579, which is apparently the pro-rated amount he agreed to. I am not really clear about why that amount, I just know that is what I paid. When he and our attorney went before the judge, all that was said was we had reached an agreement to change the date the rent was due, and we would each take care of our own respective costs. The judge asked us if we were in agreement, and we understood, we said yes. She states that when an amendment to that effect was drwan up, she would sign it, case closed. The next month, I sent the rent off in the mail because we were literally in a blizzard here. I sent it on the 11th, and I know he received it on the 13th, because I called and asked his secretary.
I am totally confused by these papers I recieved feom his attorney. It doesn't say what kind of an order he is asking for and it has no court date on it. The court has not endorsed it, and it isn't a summons and complaint, so I don't know what to do with it. I know if he is asking for an order of restitution, and I don't know about it, he could get a sherriff to lock me out in 3 days or less. I know, you are going to say he would have to serve me, but this particular attorney has been known to fabricate actual proof of service. He makes sure you don't get it, goes to court and gets a default judgement, then has the right to have a sherriff lock you out, and then it takes you 2 to 3 months to get back into court after you file a complaint, and by then the damage is done, especially in my case-my children would be mortified. I learned this from another clerk I used to work with. He is the highest paid eviction attorney, but also the most unethical.

I do have the new due date in writing and signed by the judge, and I know you are right about the lease renewal. I am looking for another place close to here daily. I wouldn't really care, but for my children. We have lived in this particular house just under a year, but we rented a house down the street for over 7 years, until I had another child and we needed more room. The tenants that previously lived here have moved down the street, and they told us that he wouldn 't renew their lease either, and gave no reason for it. He also did not return their deposit. Our lease ends April 30th.

i know that it is going to be hard to get another place due to the UD, but I feel that I should stand up for my self when I am right. I know that alot of LL's don't like tenants who know their rights, but that just isn't right. With the housing crunch, there are going to be a whole slew of people who have been foreclosed on needing to rent, and I feel that alot of LL's are going to take advantage of them, and then we are going to have whols families on the streets. Other than being late a few times, we are very good tenants. My old LL has had 3 separate tennants in the 9+ months we have been gon e, and she asked me to come back, but the home is just too small. Thank you for your advice, and quick response.

[OHlandlord]

Ok, I do understand a little better now. One problem you have is that you went to court in Jan. and agreed to pay rent on the 11th. Yet, last month the LL did not receive the rent until the 13th. You have already broken the new agreement that you made in court. (Nothing was said in court about a grace period still, was there?) You should have mailed the payment earlier so it would reach him by the 11th. This is not a good way to start out this new agreement. Make a conscious effort to pay the rent on time each month so you will be able to get a good reference from this LL when you move out. A good reference from the LL who filed the UD will hold some weight with another LL. (It will show that you have become better tenants since then.)

The order the attorney is intending to file may be the agreement you two made in court. If so, you should get a copy of it soon to sign and return to him. He will then file it with the court (just as the judge requested). Don't be late again before that order is filed. Until it is filed, you have no proof that the due date has changed.

Yes, I doubt he will renew your lease. The LL has no obligation to do so or to give a reason as to why he won't do so. (I never give any reason other than "I don't wish to renew." - It is the "safe" answer. No tenant can argue with it.) Read through your lease now to see how much notice you must give prior to vacating (30 or 60 days). Then give proper written notice before that time. In some states, notices must be given before the rent falls due in order to be effective that month. If given late, they don't become effective until the next month. For your sake, give your notice prior to the 1st of the month just to be safe and list an end date for you to move out. Good luck.