There are several reasons why an eviction notice may raise issues with a judge or opposing counsel.
Here are some of the most common reasons evictions are denied based on the notice being improper.
The nonpayment of rent notice includes improper fees or amounts that are not considered periodic rent.
The nonpayment of rent notice can only include: (a) periodic rent and (b) late fees. Periodic rent includes base rent and static recurring charges due each month during the tenancy (such as pet rent, garage rent, flat rate utilities, etc.) Including fees or charges that are not considered periodic rent, such as damage charges, lease violation charges, or legal/attorney fees may render the notice improper and result in a denial of eviction.
Payments may have been applied to the oldest balance when they shouldn’t have been.
Many leases have language allowing the landlord to apply any payment made to the oldest unpaid balance. In following this language, a full rental payment submitted for the current month is applied to a past owed balance on the ledger. As a result, such payment becomes reduced so as to be considered a partial payment, or it is applied completely to the prior balance so as to not satisfy any portion of the current month’s rent due. If a nonpayment of rent notice is thereafter served, it will likely allege amounts owed that were in-fact paid by the tenant. It will also likely include amounts that may not be considered periodic rent (because the landlord is simply adding whatever amounts are left due and owing on the ledger). Many courts object to this practice citing that applicable Nevada law and the definition of periodic rent supersedes the language of the contract. The court takes issue with situations, and may not evict a tenant, where the tenant has duly paid the current month of rent, but landlord’s accountings divert such payment to other prior owed balances.
The notice includes late fees charged for late fees or fees other than rent.
Many leases have language allowing the landlord to convert any unpaid amount to that of additional rent. In following this language, landlords convert everything unpaid to that of additional rent and then often charge late fees upon such balances. Charging late fees to a tenant simply because they have not paid prior late fees is prohibited by statute. Additionally, if landlord has converted prior unpaid balances to rent and charged a late fee on that balance, landlord runs the risk of charging late fees on amounts that are likely not considered periodic rent. Many courts object to these practices citing that applicable Nevada law and the definition of periodic rent supersedes the language of the contract. The court takes issue with situations, and may not evict a tenant, where the tenant is paying rent as required, but can never become current due to the landlord’s continued charging of late fees each month based on older balances owed. This creates an improper cycle of eviction, and accumulation of increased fees.
CHAP or other rental assistance payments may have been applied to charges other than rent.
A CHAP or other rental assistance payment is provided to satisfy rental obligations for a set time period. Applying the CHAP or rental assistance payment to older balances or charges that are not rent for the period provided puts the landlord in the same problematic position discussed above. If a nonpayment of rent notice is thereafter served, it will likely allege amounts owed that were in-fact paid by rental assistance. It will also likely include amounts that may not be considered periodic rent (because the landlord is simply adding whatever amounts are left due and owing on the ledger). Many courts object to this practice citing that applicable Nevada law and the definition of periodic rent supersedes the language of the contract. The court takes issue with situations, and may not evict a tenant, where the tenant has duly paid the current month of rent through rental assistance, but landlord’s accountings divert such payment to other prior owed balances. Additionally, and perhaps most importantly, proceeding to evict a tenant after receipt of rental assistance funds for the same period in which rental assistance funds were received may give rise to liability for unlawful eviction pursuant to AB 486. Care should be taken to avoid this.
The notice contains improper delinquency dates.
Many landlords will serve a nonpayment of rent notice for the current month with a current-month delinquency date, but the notice includes carryover rent balances from prior months. This is problematic. If the delinquency dates of the notice represent to the court that the default is only for a single month, the court is going to immediately question how a tenant can owe for multiple months of rent in a single month. Even if the landlord attempts to explain that the balance includes carryover rent, the court has no knowledge of this and the tenant has not been put on proper notice of what is being claimed. The end result is that the court can deny the eviction for insufficient notice. Landlords need to provide correct delinquency dates based upon the amounts claimed due and owing in the notice.
Be prepared to explain your notice in court.
Be ready to explain the ledger, and the amounts reflected in the ledger, to the court. Because of partial payments and delays in CHAP/rental assistance payments, more tenants are receiving nonpayment of rent notices that include carryover balances, which requires the courts to ascertain what is truly owed and whether the notices are accurate. As a result, more courts are asking to review ledgers and scrutinizing the amounts alleged in comparison to the notice. Having an easy to read ledger clearly showing the itemization of charges and proper allocation of payments will better help the court understand what is occurring.
Also, if the tenant fails or refuses to pay certain charges under the lease that are not considered periodic rent (and therefore not proper for a nonpayment of rent notice), the landlord may have the ability to seek eviction for such nonpayment of charges via another type of notice. Please seek legal counsel or contact our office for assistance on this issue.
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