Tenants have a responsibility to pay rent to their landlord as stipulated in the lease whether the lease is oral or written. Either type of lease is a contract binding on both parties. The information in this brochure is provided in an effort to clarify the obligation of tenants to follow the terms of their lease in relation to paying rent.
How to Pay Rent
Tenants should be clear about the terms of how the landlord will accept the rent payments. Is it permissible to mail the money? Should rent be hand-delivered? Can you drop your payment in the landlord’s mailbox or on-site management drop slot?
If a lease allows rent to be mailed to the landlord and the lease does not state that rent must be received within a grace period, rent is considered paid on the date of the postmark (that is, rent is paid if it is postmarked on the last day it is due). With Texas Apartment Association and Texas Association of Realtors leases, the postmark is not considered timely payment. The TAA and TAR leases state that rent must be received within the grace period (not after).
The same rule applies if the lease does not say whether rent can be mailed or not and a pattern of mailing is established. Under these circumstances, the tenant is permitted to mail the rent unless a written notice is received from the landlord indicating that the payment arrangements will change in some way.
The risk of placing any payment in the drop box or mailbox is that it could be lost, misplaced, or stolen. The burden of proof would be on the tenant to show how or when the rent was paid. Therefore, the tenant should bring a witness when the money is deposited. For example, two neighbors could witness each other’s rent payment.
If a tenant uses cash or a money order for the rent payment, a receipt should be obtained from the landlord at the time rent is paid. In fact, the landlord is required by Section 92.011 of the Texas Property Code to provide a written receipt for a cash rental payment. If the landlord violates this law, the tenant can recover $500 or one month’s rent, whichever is greater, plus court costs and attorney’s fees.
If a tenant pays with a money order, the money order should include the tenant’s name, address, and the month of the rent payment. If payment is made through the mail or drop box, the tenant should get a written acknowledgment as soon as possible that the landlord received the money so that there is never a question about whether rent was paid by the due date.
If Rent Is Late
The landlord has the option to follow legal means for eviction for nonpayment of rent or late payment of rent if not paid on or before the due date. Though it may be difficult for the landlord to evict a tenant for paying rent on the second day of the month, the best policy for a tenant is to be in the habit of paying rent by the date due.
If the rent is going to be late, the tenant should contact the landlord and attempt to reach an agreement with the landlord to get the rent current. It is best for the tenant to get a clear agreement in writing that the landlord will accept the late rent on a certain date and, in exchange, will allow the tenant to continue under the original lease agreement. This is a protection for the tenant because if rent is paid late and accepted, the landlord can still proceed with the eviction process for breach of lease due to late payment of rent. There is no requirement that a landlord give a tenant a grace period to pay delinquent rent.
If the landlord accepts late rent before giving the tenant written notice to vacate for failing to pay rent on time, the landlord gives up the right to evict for late payment of rent.
The landlord may be prevented from evicting a tenant if a pattern is established of accepting late payments from the tenant. The tenant’s proof would be the dated rent receipts. For the landlord to require the tenant to begin paying on the due date, the landlord should clearly inform the tenant that the landlord will not accept future late payments. Thereafter, if rent is paid late, the landlord could follow the eviction process for breach of lease due to late payment of rent. The exception to this would be if there is a “no waiver” clause in the lease agreement which would explain that the landlord can accept rent after due date. But in accepting it, the landlord would not waive his right to evict for breach of lease for late payment of rent even though the tenant may have had a pattern of paying late rent.
Most lease agreements state that rent is due on a specific date. Sometimes, the actual due date and the date when late fees will begin to be charged is different. The Texas Property Code, Section 92.019, states that a landlord may not charge a tenant a late fee for failing to pay rent unless:
- Notice of the fee is included in a written lease;
- The late fee is a reasonable estimate of damages to the landlord as a result of the late payment of rent; and
- The rent has remained unpaid one full day after the date the rent was originally due. This means that if the lease states that rent is due on the first, the landlord could not charge a late fee until the third.
Any provision in the rental lease that purports to waive a right or exempt a party from liability or duty of the late fee requirements is void.
If Landlord Refuses to Accept Rent
If the landlord refuses to accept rent, the tenant should make a second attempt to pay. The second attempt should be on the same day if possible. The tenant should be accompanied by a witness if there was not one present the first time. After second refusal, the tenant should mail the rent payment by certified mail, return receipt requested. Should the landlord attempt to evict for nonpayment, at the time of the court hearing, the witness and the return receipt from the post office could serve as proof the tenant made a second and/or third attempt to pay rent.
Proof of Rent Payment(s)
Keep a file of all your rent receipts as documentation that your rent is always paid and current. If the landlord will not provide you with receipt(s) for rent payments, write the receipt(s) yourself and obtain the landlord’s signature on those receipts for your records.
The information in this brochure is a summary of the subject and other pertinent matters. It should not be considered conclusive or a substitute for legal advice. Unique facts can render broad statements inapplicable. Anyone needing legal assistance should contact an attorney.