What do you have in your rental agreements about how money received is applied? This is what mine says;

The Landlord shall apply all monies received from the Tenant first to any non-rent obligations of Tenant (including but not limited to , late fees, returned check fees, constable / sheriff fees, court fees, repairs, and disposal fees) then to delinquent rent and lastly to current rent / use & occupancy charges. Tenant agrees that this application of monies by Landlord takes precedence over any designation Tenant may write on a check or a money order unless agreed to in writing by the Landlord.

David, your lease clause is specifically forbidden in NC.

First there is this:

"An arrearage in costs owed by a tenant for water or sewer services pursuant to G.S. 62-110(g) or electric service pursuant to G.S. 62-110(h) shall not be used as a basis for termination of a lease under this Chapter. Any payment to the landlord shall be applied first to the rent owed and then to charges for electric service, or water or sewer service,unless otherwise designated by the tenant." AND

"(b) A late fee under subsection (a) of this section 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." AND

WMH - I respectfully disagree. NCGS 62 is for public utilities of which we are not a public utility.

NCGS 42 governs Landlord Tenant Rules

Your first quote says that money owed for utilities shall not be used to terminate the lease. That's not what my clause says. It says how money is applied to one's ledger and in what order.

Your point d is from NCGS 42 and only covers being charged a late fee from failure to pay utilities not from recovering money for non payment of landlord paid utilities (not that it is really an issue because the I don't pay for any utilities the tenant does and the utilities go after them for non-payment)

CA has a statute governing satisfaction of obligations, which specifies in a very general way, an order in which payments are to be applied.

There is also more general principles of law that require that money which is paid for a specific purpose must be applied for the satisfaction of that purpose, and cannot be applied to something else, leaving the intended obligation unsatisfied.

What is at the heart of the matter is that no one should be cheated out of their opportunity to satisfy one obligation while disputing another obligation. Many states have laws allowing payments (especially rents) to be made as last minute reprieves from eviction. The posted lease clause would not allow a tenant to pay rent in order to qualify for compliance with a Pay or Quit notice. What do you suppose a competent judge would do with this, if tenant goes to court and says that he paid the rent, but landlord applied the funds to something else? I am sure that there is plenty of precedent here, its hardy a new situation for the court.

Thats right. Sheriff's fees are part of a lawsuit, and are only recoverable if the judge orders them to be awarded to you. Then, if you check your state law regarding what is allowed to be deducted from SD, you will probably find 1) unpaid rent 2) cost of making repairs of damage done by tenant beyond normal w & T and 3)cost of cleaning property after tenant leaves. So you probably won't find room in that law for court-awarded court costs.

So, what do you suppose that RentsDue's attorney meant when he said that he can't deduct Sheriff fees?

Maybe its a typo, but you said that you were able to "awarded" Constable fees?

Did the court award you constable fees? That makes sense.

Did you then deduct the constable fees from the SD?

How do you know if you got away with deducting the constable fees from the SD? Did the tenant sue you? Did the matter of your deduction of constable fees from the SD get discussed in court, and the judge allowed it?

Steve,

My lease is clear: all monies recieved are applied to the unpaid balance. Any unpaid balance is considered rent and will trigger eviction.

Comment: autodraft makes this waay easy

My lease also states that if any portion of this lease is deemed not-allowable that clause may be stricken but remainder of the lease is still in effect.

And Gotta Know YOUR judge. Judges often do as they please so learn how YOUR judge handles this no matter what the law states.

And ZT! Eliminate potential problems!

BRAD

PS a tip for serious LLs: read this carefully and don’t misinterpret my suggestion. I’m not an atty, just offering a little insight...

Top attys are taught to look for what the printed does NOT say. Example: Indiana law says the LL must MAIL out the written deposit settlement. It does not say the res must RECEIVE it at all. In another paragraph the law says the LL can DELIVER the dep settlement. Last Thanksgiving II taped to the door and took a time stamped photo at 11:35 pm when the post office was closed and I could not get it postmarked. I met the legal deadline!

Moshe [CA], not sure why his "Attorney said I can’t make them pay for Sheriff fees". Perhaps it's not stated in his rental agreements or he means the costs associated with the summons service which can only be awarded if he prevails in court. I just know what happens in the 2 courts that I use for my tenant matters. As Brad 20,000 says "Gotta Know YOUR judge".

As stated & agreed to by tenants (initialed at signing) in all of my rental agreements I bill the tenant a $30.00 service charge to cover the cost of creating and sending a 14 day notice plus any additional legal fees involved. The only additional legal fee that normally is added to this is the fee from either the constable or the sheriff to serve the notice. If the tenant voluntarily accepts & signs for the notice when I attempt to deliver it they don't get charged for the constable / sheriff fee (normally $50.00 - $75.00). They do however get the $30.00 notice generating charge added to their account. If they pay all monies currently due in full as is their rent the eviction process stops here. In MA a term tenant has the right to cure a 14 day notice every month throughout the entire term, a MTM tenant only has the right to cure once in a 12 month period.

I'm not sure how my court would handle a term tenancy that converts to a MTM as far as the tenant's rights to cure a 14 day notice goes. In the next few months our local Housing Court judge will be a guess speaker for our LL group at which time I'll get his thoughts on this.

However if they do not pay in full the process continues. Once the 14 days are up, a constable or sheriff is required to serve them an official court approved summons. This costs another service fee as well as a $5.00 form fee from either a constable or sheriff. Depending upon which court I use there is a filing fee of at least $135.00. If I prevail in court these last few items, serving fee, form and filing fee are awarded to me as part of my judgment.

It could also be that his attorney meant that he couldn't add the sheriff's fee for serving the 14 day notice to the space on the filing form where you show past due rent that is owed.

I ran the lease clause in question by my lawyer and his response was -

Fun facts to know:

in MY court the sheriff fees and court costs are added by the judge ON TOP of the judgment amount.

Ask questions at court.

Invite your judge to your assoc meeting!