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Can I evict a tenant for being perpetually late with the rent? He always pays eventually but is routinely between one day and one week late. As soon as I serve a three-day notice, he pays, but I'd like it if I didn't have to do that every other month.

The Rent Ordinance allows landlords to terminate tenancies based upon habitually late rent payments. [Admin. Code. §37.9(a)(1)(B)]. The problem is that the Rent Ordinance does not define "habitual" or "late." For many property owner/managers, the rent is considered paid late if not received on or before the due date. But many tenants assume that they may have a five-day grace period, or even believe that the law requires a five-day grace period, which is absolutely false. A few folks even assume that the rent is not late so long as it is paid at any point during the month it became due.

Years ago I successfully tried a case to a jury wherein the tenant was up to three months behind, and had been repeatedly served with 3-day notices almost every month for more than a year. The tenant had the nerve to argue that the landlord had waived the right to expect the rent on time. In essence, the tenant argued that the landlord had been so nice in accepting late rent payments that it was unfair to evict him because he had been led to believe that the landlord did not care if the rent was paid late! He also testified that he thought that the multiple 3-day notices to pay rent or quit were late notice/reminders. It took the jury just about 40 minutes to decide the case in my client's favor.

To this day, in our eviction cases we still see tenants asserting the defense that the landlord has waived the right to expect timely rent payments! So you are certainly doing the right thing by serving the tenant with 3-day notices to pay rent or quit as often as may be appropriate.

The lawyer starting a habitual late payment case will review the file to assure that you have adequate documentation to prove up the case and, if necessary, convince 9 out of 12 members of the jury that the tenant has indeed paid habitually late and the problem is so serious that the tenant should be evicted. Your paper trail is the key to winning the case. Your lawyer will want to show the jury that you gave the tenant a chance to mend ways, and that you are not evicting for a pre-textual reason.

The SFAA lease and other form leases currently in use include clauses setting forth late charges, that there is no grace period, and that 3 out of 12 rent payments after the due date will be considered habitually late and constitute grounds for eviction. These definitions fill in the gaps in the Rent Ordinance "just cause" eviction provisions and operate to shut down tenant arguments such as those described above. If your lease does not have such clauses, and keeping in mind that you may not unilaterally modify the lease, you should write to the tenant to establish your policy regarding timely late payments and to warn the tenant that continued late payments will result in eviction. If the tenant does not or cannot heed the warning, then you can serve a 30 or 60 day notice to terminate the tenancy based upon habitual late payments.