The Price of Lulling
February 1, 2007
Every month the rent is late, but you never tell the tenant to pay the late fee. In fact, you never even complain about the late rent. Every month you steam, though. Finally, you’ve had enough.
The rent doesn’t arrive by the fifth of the month, so you send a three‑day notice to pay up or get out. The rent doesn’t arrive by the eighth of the month and you file the eviction. On the 15th the tenant brings the rent over and you turn it down. “Too late,” you tell him, “you’re out of here.” The eviction-court judge doesn’t agree.
The tenant claims when you go to court that he thought it was perfectly permissible to pay the rent late, since you’d always accepted it late before and never said a word about it. What’s the big deal this time?
The judge hems, haws, says “hmmm” a couple of times, then rules that you had “lulled” the tenant into thinking it was okay to pay late. That means you have to accept the rent this time and not evict him. Your only consolation is that at least next month the rent had better be on time, because next time the court will not accept “lulling” as a defense for late rent. That could all turn around if you allow the tenant to pay late consistently again.
Late rent could be the price of being a “good guy” and “understanding.” In bad-tenant speak “understanding” is defined as a landlord who “doesn’t hassle you” about late rent, being a discourteous neighbor or failing to abide by the complex rules.
But why did all this come about?
You felt sorry for your tenant, what with one piece of bad luck after another, the stories about which he dumped on you. All that hard luck interfered with his ability to pay the rent anywhere near the first of the month.
That’s one of the two times a landlord gets into trouble, when he feels sorry for somebody.
What you didn’t anticipate was that your tenant would get upset when you had had enough and finally decided that you would insist that he pay the rent pretty close to when it was due.
“No good deed goes unpunished,” observed Clare Booth Luce. That is especially true of the rental property business when we are dealing with tenants who haven’t earned the right to live in our properties. Our “good deed” of making allowances for late rent payment was punished.
There is lots we can do to avoid getting taken advantage of by tenants who do not see the importance of being good tenants. Obviously it begins in the tenant selection process. But management begins with day one of their tenancy when we go over the importance of prompt rent payment, taking care of their homes and being good neighbors. If their being a good tenant does not seem to be important to us, how can we expect it to be important to them?
The reason bad tenants get to use lulling as a defense is that landlords don’t take the trouble to send the notices, call the tenants, or deal with problems in a timely manner. Whatever the reason–not wanting to offend your tenant, avoiding confrontation, or even laziness–the result is that the non-paying, misbehaving tenant gets away with behavior that is injurious to our properties and profits.