Can’t Evict if Always Late on Rent!

Author: Todd Christiansen | Category: Eviction

There are many urban legends, rumors, and old wives’ tales surrounding owning investment real estate and evictions. Did you hear the one about the landlord not checking on his house for 3 years; when he finally went over there, the tenants had flooded the basement to grow fish to sell at the fish market?

Many of the investment real estate urban legends surround evicting tenants. Most try to tell the listener how hard it is to get the tenant to leave the property. I would bet some of those stories actually keep people from buying investment property! This next tale was not as outlandish as the fish story, so I figured it may have some truth to it.

I heard it from a seasoned landlord who heard it from someone else. The summary of the story was that a landlord had allowed a tenant to pay their rent late every month, but eventually decided to evict the tenant when they were late the next month (per the lease). The tenant took the landlord to court claiming the landlord had always accepted the late rent and therefore, what was different the month he finally decided to evict her? In other words, the landlord had set a precedent of allowing late rent payments.

This story sounded plausible, (probably because anyone can sue for anything), but I figured no tenant would go through the legal work or be smart enough to come up with that argument in front of a judge. Hold onto your UFO books and big foot videos, this actually happened in Wisconsin! Read the full Court of Appeals Decision from 2002. The tenant in the case had paid her rent at least 10 days late for the last 2 years, thereby setting a pattern and precedent. The landlord finally decided to evict her because he had not received the rent on the lease-specified due date and the court eventually overturned the eviction stating that “A pattern of late rent payments can operate to change the time the rent is due”.

The moral of the story is to read your leases and evict your tenants in a timely manner. Alternatively, I would at least recommend updating the lease to reflect the updated/later due date and/or send the tenant a letter periodically stating that although you are accepting the rent payment late, the due date is specified on the lease, and you are not waiving your right to evict a tenant if they do not pay by the due date.

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