Landlord refuses to honor 5day grace period mandated in NC law

8 Replies

In North Carolina, General Statutes Chapter 42 'Landlord and Tenant' section 46, 'Authorized late fees and eviction fees', states the following:

"§ 42-46. Authorized late fees and eviction fees.

In all residential rental agreements in which a definite time for the payment of the rent is fixed, the parties may agree to a late fee not inconsistent with the provisions of this subsection, to be chargeable only if any rental payment is five days or more late."

Nonetheless, my landlord refuses to honor the law, specifically the portion of the law stating that a late payment is only chargeable if the rental payment is five days or more late. When I try to explain the law to her, she responds to me by either openly ridiculing me ("stop trying to be a punk*ss lawyer"), mocking me by repeating what I say to her in a condescending and spiteful manner, or by telling me that we "agreed" via the lease that rent was due on the first of the month. However, the law states that the parties to a rental agreement may not agree to a late fee inconsistent with the provisions of said law, so as far as I am concerned, that portion of my lease is unenforceable/invalid.

I am at a loss here. I have tried everything from politely explaining the law to her, printing off the entire subsection and highlighting the relevant portion and giving that to her, everything that I can think of to get the point across to her that she is disregarding NC state law, I have done. I am seeking advice for what I should do next. Any help would be greatly appreciated.

EDIT: For the five months I have lived in this property, I have paid rent on the 1st twice, the 2nd twice, and the 3rd once. Any time I did not pay on the 1st, a late fee of $5 a day was incurred.

Also, my landlord informed me today that everytime I do not pay rent on the 1st, she is reporting to the Credit Bureaus that I have paid my rent late, and it is negatively affecting my credit score.

Hello @Michael York

DISCLAIMER: Not a lawyer, not a resident of NC or your area so any and all advice is simply some dolt on the internet stating an opinion. Following any advice is strongly discouraged as it may result in loss of money, health or sanity. Residents of Earth and nearby planets should avoid heading any advice. For entertainment purposes only.

I really see it as you having a few options. 

1) Hiring a lawyer and you two going to court. Fighting it out over the $25 until one or both of you has exhausted all resources and one has driven the other into a state of poverty over principal.

2) Paying all future rent on the first and refusing to pay the $25 (but paying all other rent) until you are given an eviction letter. At which time go to court and fight over damages (Some places have up to 3 times meaning you can get up to $75)

3) Continue to pay late, rack up the damages until it adds up and you are evicted (of course you may be told that you did not try mitigating the damages) then in court present your case fighting for all damages and the ability to stay.

Only your lawyer or a judge can tell you if that stated statute applies in your instance. There may be something later, there may be case law that clarifies it and makes it different than it sounds. Your landlord should know their local laws and if they don't feel free to take them to court over it. Seems like a whole lot of work over $25 and the landlord may feel like it is not worth the business expense to play with it and give in. 

If someone starts citing laws to me I generally send them to my lawyer and cease communication on the topic. If someone is damaging you then do what you have to to make it right. I would however personally stop the bleeding and pay on the first as agreed upon. 

Good luck on getting this resolved 

Thank you for your reply, Mike. I appreciate it. I’m really not so much concerned about the $5 late fees as much as I am about her insistence that I pay on the 1st. She is at my door basically about to break it down every single month on the 1st. It’s like she doesn’t care about the section of her lease that states there’s a $5 late fee for every day rent is late. She is at my door on the 1st every month wanting her rent and if I’m not going to have it until the 2nd she starts talking eviction instead of late fees. I am self employed and get paid on an irregular schedule, so it’s not as easy as just paying on the 1st every month. I count on the five day grace period, and always have for all 10+ rental properties I have lived in in this state, to be able to pay rent. It’s her complete unwillingness to even acknowledge the grace period that is the problem here, not the late fees. She seems to prefer to idea of evicting me if I pay rent late rather than tacking on any late fees to my rent. And I assume/hope if she were to initiate an eviction over my failure to pay rent on the 1st, I’d have a fighting chance in court to show that she was disregarding the law. 

In NC there’s a state agency where a tenant can file an official complaint against a landlord for violating state landlord/tenant law. Would anyone care to share their thoughts on pursuing that route? NC state law also states that a landlord can not evict a tenant who has filed an official complaint against them for twelve months, if the eviction is retaliatory in nature. So that route might give me some cover from eviction, in addition to having the state force her to comply with the law through a means that doesn’t require going to court. 

@Michael York   Read your lease.  Rent is due on the 1st of the month.  When you signed the lease, you agreed to pay it on the 1st, not the first 5 days of the month.

I'm guessing the 5 day grace period is because some people mail their rent and it gives it time to arrive and the landlord cannot start eviction until after the 5th.

@Theresa Harris The law states that a lease cannot be inconsistent with that portion of the state law. So yes, the lease says its due on the 1st, but because the state mandates a five day grace period, a rent payment cannot be considered late until the 6th. How is this so difficult to understand?

Rent is still due on the 1st of the month. They may not be able to impose late fees (I don't know the rules there), but it is still due on the 1st.  This is pretty standard.

Here is something else from NC laws "Rent is legally due on the date specified in your lease or rental agreement (usually the first of the month). If you don't pay rent when it is due, the landlord may begin charging you a late fee. Under North Carolina law, a late fee when rent is due monthly cannot be higher than $15 or 5% of the rental payment, whichever is greater, and may not be imposed until the rent is 5 days late. A late fee may be imposed only one time for each late rental payment. A late fee for a specific late rental payment may not be deducted from a subsequent rental payment so as to cause the subsequent rental payment to be in default."

Based on that, it states that you have to abid by your lease which states rent is due on the 1st of the month.  She can't apply a late fee for 5 days, but the rent is still due on the 1st.  It also shows that the late fee is $15 or 5% of the rent, whichever is higher.

Interesting discussion. 

Michael, are you stuck in a long term lease? Can you give 30 day notice and leave? I am always a fan of having two parties part ways when they don't see eye-to-eye. If you wish to pay rent on a day after the first, there are probably a lot of landlords that will allow that. Why would you want to put your time and energy into making your current landlord comply with your interpretation of the law? Life is short. Time is precious. Drama and conflict is undesirable. Not something I would spend my time on. 

Just my two cents...

@Michael York

We have rental several properties in North Carolina and I am quite familiar with the North Carolina and my local county’s laws related to rental late fees for 1 year and longer leases. I say it like that because there are other rules for shorter term or month to month leases.

You are both wrong.

The rent is due on the first. It is late on the second and yet no late fee can be charged until it is 5 days or more late and it becomes additional rent. If the rent remains unpaid after 5 days you can be charged a late fee not to exceed 5%, not even by a penny, issued a 10 Day Demand For Payment that if unaddressed becomes grounds for eviction.

Our leases state that it is a lease violation, default of the lease, to need to “demand “ rent and that itself needing to be issued, is a grounds for a lease violation and eviction.

As for your landlord.... a few years back when I was a newbie landlord I had a small infraction stated in my late fee sentences in my lease and when I went to evict my tenant, the magistrate found in favor of the tenant because of the misapplication of the late fee language. I immediately wrote an addendum and correction to the lease and when the same tenant was again behind on rent, an eviction order was so issued.

I learned my lesson about careful communication and compliance to state and county laws. I am not an attorney just a landlord but I hope this clarifies things for you.

Your rent if stated as due on the first, in writing, is due on the first. Think of the five days are your emergency time reserve but it is still late, could be reported as late and future references could share, your rent is typically “late”.

Good luck.

The bigger issue here is it being reported to the credit bureaus. However, you should be able to dispute everyone because credit bureaus only show things that are 30 or more days late. If she is reporting your rent 30+ days late, then that is fraud under Fair Credit Reporting Act.