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My lease says that rent is due on or before the first of the month but then says that a late fee will be assessed if rent is paid after the fifth; when is my rent due?

Many leases will read as follows concerning payment of rent: "Rent is payable in advance on the first day of each month, unless changed by notice as hereinafter provided. Failure to remit the rent then due will result in a late charge of $25.00 after the fifth day of the month." Most tenants would read this to mean that rent was due on or before the fifth of each month. After all, rent is not considered late until after the fifth as late charges do not accrue until after the fifth of the month.

Most landlords would read this to mean that rent paid after the first is late, and they do not have to accept it. They would reason that they are simply not charging late fees until after the fifth of the month out of the kindness of their hearts, but they could if they had wanted to do so.

At least one Ohio court has ruled that such language in a lease creates confusion (11th district court of appeals in the case of Reinhard v. Lorek, 1995 Ohio App. LEXIS 3907). In legal jargon, such confusion is known as an ambiguity. If a lease provision is confusing (can reasonably be read to have more than one meaning), then that provision is read in the light most favorable to the party who did not create the contract (almost always the tenant). Again, in legal jargon, the provision is "construed against the landlord" and in favor of the tenant. In this case, when the lease is read in the light most favorable to the tenant, the court interprets the lease as stating that rent is due on or before the fifth and not by the first.

What should you do if you are a tenant with this sort of lease provision? Avoid eviction problems by paying on the first. If you are taken to court, you can argue that the terms of the contract are ambiguous and should be construed to read that rent is due on or before the fifth of each month.

If you found this information helpful and are looking for more information or would like to support this website, please consider ordering a copy of our book on Ohio landlord tenant law.

Disclaimer: The information provided on ohiolandlordtenant.com is not intended to be legal advice, but general information related to legal issues commonly encountered. The law in your state may be different from that discussed here. The facts in your case may be different too.

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