Legal Question in Landlord & Tenant Law in Texas

Due date and when is rent payment obligation completed.

Rent checks must be mailed to LL because LL is out of state from leased property. All rent checks are mailed & US postmarked before due date. Landlord is charging a late fee for rent payments on a retail lease because he does not have the rent check in possession on due date.

The lease exactly states, ''The payment of Fixed Minimum Rent by Tenant to Landlord shall be made in advance on the first day of each Calendar month....'' and latter written ''If Tenant shall fail to to make any payment of Rent when due as required under the applicable provisions of this Lease, Tenant shall pay a late charge in accordance with Section 3''. Section 3 schedules the amount of late fees and no other applicable provisions except stated above.

There is no grace period clause in the Lease. Tenant argues that rent payment has been made in accordance with the above lease language because his obligation is to make the payment on or before first of the month, and that a US Postmark certifies proof of that event.

LL argues that rent must be in his possession on first of the month or late fee applied.

Is there legal precedence for the above arguements?


Asked on 12/17/04, 7:43 pm

1 Answer from Attorneys
Austin Nimocks Austin R. Nimocks & Associates, P.L.L.C.

Re: Due date and when is rent payment obligation completed.

Both arguments are understandable, but in the absence of a specific Texas case which addresses this scenario and interprets this particular lease language, I would side with the tenant. The LL's lease is vague -- what does it truly mean for a payment to be "made?" Vague lease provisions will generally be construed in favor of the tenant. If the LL wants its money to be received by the 1st of the month, the lease should be clarified to make that clear. However, putting a check in the mail on or before the 1st is a payment "made" since the monies have left the control of the tenant, only to be received by the LL and no other.

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Answered on 12/17/04, 8:39 pm


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