The most typical arrangement for the monthly rent payments is to be due on the 1st day of the month. This is probably how 99% of all landlord-tenant relationships operate. But is it required to be due on the first? Or, at least, is it so implied? And next question we might ask, once the due date is defined, when does the rent becomes late? This post will provide you with some hints on the subject.
A lease agreement, aside of its specific features expected or implied-into by the law, is still an agreement, subject to the contract law principles. ASP Properties Group v. Fard, 133 Cal. App. 4th 1257, 1268 (2005). Contract law is concerned with what are the material terms, agreed-upon between the parties; each party's performance under the contract is measured by that party's compliance with such terms.
Generally, the time of performance in contracts concerned with real property is not considered to be an essential term, such that its absence would render the contract unenforceable. We have a statute, Cal. Civ. Code § 1657, which provides that if no time is specified for the performance of an act required to be performed, a reasonable time is allowed. In Stockton v. Stockton Plaza, 261 Cal. App. 2d 639 (1968), court used CC § 1657 to read-in the "reasonable time of performance" to a lease agreement where no specific term of performance was specified.
More specifically, there is also a statute, Cal. Civ. Code § 1947, which expressly provides: "[w]hen there is no usage or contract to the contrary, rents are payable at the termination of the holding, ... [i]f the holding is by the day, week, month, quarter, or year, rent is payable at the termination of the respective periods, as it successively becomes due."
If no particular due date was specified in the lease agreement, these above-stated rules would suffice to determine a due date under most of the circumstances, either by the manner of when the rent payments were usually made (parties' conduct), or because the time for tenant to perform (to pay rent) can be determined as reasonable (under CC § 1657), and the termination of a monthly period can be reasonably presumed to happen at the termination of the calendar month (under CC § 1947).
A lease agreement, aside of its specific features expected or implied-into by the law, is still an agreement, subject to the contract law principles. ASP Properties Group v. Fard, 133 Cal. App. 4th 1257, 1268 (2005). Contract law is concerned with what are the material terms, agreed-upon between the parties; each party's performance under the contract is measured by that party's compliance with such terms.
Generally, the time of performance in contracts concerned with real property is not considered to be an essential term, such that its absence would render the contract unenforceable. We have a statute, Cal. Civ. Code § 1657, which provides that if no time is specified for the performance of an act required to be performed, a reasonable time is allowed. In Stockton v. Stockton Plaza, 261 Cal. App. 2d 639 (1968), court used CC § 1657 to read-in the "reasonable time of performance" to a lease agreement where no specific term of performance was specified.
More specifically, there is also a statute, Cal. Civ. Code § 1947, which expressly provides: "[w]hen there is no usage or contract to the contrary, rents are payable at the termination of the holding, ... [i]f the holding is by the day, week, month, quarter, or year, rent is payable at the termination of the respective periods, as it successively becomes due."
Finally, a general rule of contract interpretation by the parties' conduct also applies to leases. "[A]bsent a provision in the lease, the payment may be governed by the actual practice of the parties." Benjamin Kaplan, Practice Tip, 9-331 California Forms of Pleading and Practice § 331.11[5][d].
If no particular due date was specified in the lease agreement, these above-stated rules would suffice to determine a due date under most of the circumstances, either by the manner of when the rent payments were usually made (parties' conduct), or because the time for tenant to perform (to pay rent) can be determined as reasonable (under CC § 1657), and the termination of a monthly period can be reasonably presumed to happen at the termination of the calendar month (under CC § 1947).
These rules do not imply though that the due date is on the first day of a calendar month, nor there is a fixed day written in the statutes. About a year ago, I had a tenant-client, who started his tenancy at the middle of the month. Since he moved in, he was making his rent payments around the second week of each month. At some point, landlords attempted to evict him on the grounds that he was paying his rent habitually late (one of the San Francisco Rent Ordinance's allowed causes for eviction, 37.9(a)(1)(B)), as the payments were not made on the first day of the calendar month. It was, however, determined that his lease had no particular time stated as a "due date," and that he was always making his payments within his month-term, only that the term was running from middle to middle of each calendar month. From his "usage" it was thus shown that the due date in his lease was not on the 1st calendar day of the month and the monthly term ran from a certain middle point of one month to the same point in the next one.
There are situations, when these rules of interpretation do not apply--when the initial lease had the terms specified, but the parties since then moved on to a less formalized relationship (e.g., the lease has expired, but the parties continued on a "month-to-month" basis). In this scenario, the terms of the original lease will be implied in the later extensions. CC § 1945; Rosenbaum Estate Co. v. Robert Dollar Co., 31 Cal. App. 576, 577 (1916).
So, the first take out of this post is, for the landlords, to make sure the Due Date is unambiguously stated in your lease agreement. For the tenants, it is not so vital; Due Date's absence may be even beneficial.
There are situations, when these rules of interpretation do not apply--when the initial lease had the terms specified, but the parties since then moved on to a less formalized relationship (e.g., the lease has expired, but the parties continued on a "month-to-month" basis). In this scenario, the terms of the original lease will be implied in the later extensions. CC § 1945; Rosenbaum Estate Co. v. Robert Dollar Co., 31 Cal. App. 576, 577 (1916).
So, the first take out of this post is, for the landlords, to make sure the Due Date is unambiguously stated in your lease agreement. For the tenants, it is not so vital; Due Date's absence may be even beneficial.
Now, if we know when the rent is due, when does the rent become late? Logically speaking, the rent is late when the payment is "past due," i.e. past the Due Date. If the rent was due on the first day of the month, it is already past due if not received on the second. But majority of the lease agreements have a "grace period" clause, when tenant's failure to make a payment within a certain period, following the due date (typically, 3 or 5 days), does not constitute an event of default. This provision helps if the tenant mails the payment, allowing it to arrive without causing default. Where the grace period clause is present, a tenant paying a day after the due date is late and the rent is past due, yet that tenant is not in default. Whether it means that the late fees are not due, or that the tenant will not be evicted, or something else and even all of the above--it depends entirely on the lease language and the agreement between the parties. If you are leasing, this is an important term to check, how it is spelled out in your own contract.
Thus, the second take is, now for both tenants and landlords: see if your lease contains a specified grace period for making rent payments and how the application of late fees and the events of default are stated in connection with paying rent past the due date. No side will benefit if the agreement is uncertain as to these terms: the tenant may not safely rely on the grace period, while the landlord may face an attack on his eviction notice for inaccuracy, if such notice would include late fees and/or be issued too soon after the due date, if those terms were not sufficiently clarified.
Your options and available strategies will depend on your case's particular facts. If you are currently in a similar situation and need to learn more about your rights and obligations, make your first step toward taking control over the circumstances, and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. My office provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.
For detailed coverage of requirements in drafting an eviction notice for non-payment of rent (the "3-Day Notice To Pay or Quit") in San Francisco, see my book "Eviction Notice In San Francisco" on Amazon. Currently available is Volume I, covering general requirements and nine "for fault" evictions, including the ones for non-payment, late payment, and bad payment of rent. The second volume (for non-fault evictions) is still in the works.
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Your options and available strategies will depend on your case's particular facts. If you are currently in a similar situation and need to learn more about your rights and obligations, make your first step toward taking control over the circumstances, and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. My office provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.
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