July 22--Q: Can a person be evicted for being late with the monthly rent? My daughter has been living in her complex for 11 years, and she is often late with her rent, which is due on the first of the month. When she is late, she does pay all of the applicable late fees on top of the rent. Her lease has contingencies for a late payment. My daughter received a summons to court for eviction, stating she owes $1,079, which is her monthly rent.
In May, she received a five-day notice -- which she has received many times in the past -- but there was never a problem, as long as the applicable late fees were attached. At the end of May, she paid May's rent with late fees, which the property management accepted and recorded. But when she went to pay her current rent, they would not accept it because of the court eviction. Also, there was no five-day notice issued before this eviction notice. Do you think a judge will go along with making my daughter leave her home of 11 years, which she is not prepared to do, just because she pays her rent late?
A: I strongly suggest your daughter get a lawyer. Landlord-tenant law differs from state to state. In some areas, such as in the District of Columbia, where I practice law, the laws are extremely pro-tenant. In many other jurisdictions, the laws are either pro-landlord or at least neutral.
I cannot condone that your daughter is continually late. You will have to review the terms and conditions of the lease. I have seen many leases that state if the tenant is late three times in one year, that gives the landlord the right to evict.
Although the laws do differ, they all require some form of due process, which to me means fairness. Your daughter must be treated in accordance with not only the lease but also the applicable state (or city) laws on evictions. It may be that the landlord had to give your daughter more notice; it may be that by accepting every month the rent and the late fee the landlord waived its rights to evict. Only your daughter's attorney can assist her.
Q: My condo is not underwater since I paid all cash for it a few years ago. I want to sell but will take a loss, especially after paying a real estate commission and various closing costs. Can I deduct the loss when I file my next income tax return?
A: Unfortunately you cannot. I know it is patently unfair that although you can claim an exclusion of gain of up to $500,000 (if you file a joint tax return or up to $250,000 if you file separately), if you make more than that you have to pay capital gains tax. And, if you lose money on your main home, there is no tax deduction. But that's the law.
Q: Sometime you use the word "mortgage" and other times "deed of trust."
A: For all practical purposes, they are the same. When you borrow money to buy a house, the lender wants security -- the right to foreclose on your house should you be in default.
Some states use a mortgage document; most states use deeds of trust. In a mortgage, generally the lender has to go to court to foreclose. With a deed of trust, the borrower deeds the property "in trust" to a person named by the lender. That document (like a mortgage) is recorded among the local land records. If you default, the trustee has the power to sell the property without going to court.
However, as a result of the mortgage problems we had back in 2007 to 2009, many states have imposed restrictions on quick foreclosure sales, such as requiring mediation before the foreclosure sale can take place.
But local custom controls which legal document your lender will require. Borrowers have no choice in the matter; you take what the lender gives you.
Benny L. Kass is a practicing attorney in Washington and Maryland. No legal relationship is created by this column.
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