Mods: Feel free to place this post wherever it truly belongs.
People of the SDMB. The sentence:
The question: Is this sentence ambiguous? I’m not asking whether you get what they are trying to say. Rather, I am asking if the sentence can be understood to have more than one meaning. And no, the sentence is not my creation.
There might be some confusion as to whether the $150 maximum includes the initial $75 late fee or is made up only of the $10 per day charges.
Is that what you were going for?
That’s definitely part of the package. Sorry to be cryptic, but I want to get initial reactions without my own interference.
It seems quite clear to me. I do not think the $150 limit includes the initial $75.
A comma is incorrect after the $75.00. You need something stronger, like a semicolon or even a period and a new sentence.
Part of the ambiguity is that you have a daily charge of $10 but a total additional charge that may be $75. Does that mean that on the seventh late day the charge is only $5? Or that you will charge on 15 late days?
And if the rent is paid on the second calendar day, what is the late fee: $75 or $85?
Nitpick: wil should be will
I’d have done it as two sentences:
Rent payments not paid on the 1st (first) day of each calendar month will be subject to a late payment charge of $75.00. An additional charge of $10.00 per day up to a maximum of $150.00 will be charged for all rent that remains unpaid.
transcription error by yours truly.
1. From an extremely pedantic point of view, it could be interpreted to mean that payment before (which is “not paid on”) the first calendar date is also subject to a “late payment charge” of $75.00 and $10 for each day early that you paid it. A $1000 rent check paid on the 31st would be subject to $85 in fees.
2. Aggressively devilish interpretation. If they charged you $1000 rent and you only wrote a check for $900 on the first, you would still owe them $100. If you wrote them a check for the remaining $100 on the second, you would still owe them $85, because the check is a “rent payment made not on the first” ($75) and subject to the ($10) fee for being a day late; only $15 of your check would go towards your rent. The only way to pay off this $85 debt on the third is to write them a check for $180, covering the fee for yet another “rent payment not on the first” ($75) and now two days’ worth of late fees, bringing your total to $180. You have now paid $1180, or 18% in late fees. This approaches the boundary of many states’ usury laws.
3. Middle-of-the-road interpretation. As soon as any portion of the rent is unpaid at close-of-business on the first, you owe them an additional $75. At close-of-business on the second, you owe them $85. At close-of-business on the ninth, you owe them the maximum of $150 in additional rent.
4. Amazingly slack interpretation. Because the last clause in the sentence does not parse, it cannot be legally interpreted and is void. You owe $75 if your rent is late, and possibly a maximum of $150 if it’s 15 days late.
“. . .up to a maximum of $150.00 will be charged for all rent that remains unpaid”
This portion of your sentence is not clear. Clearer:
“. . .up to a maximum of $150 in additional charges will be paid until the full rent payment is made.”
Beyond the grammar and syntax, there may be some questions whether or not this penalty scheme is even legal.
“. . .up to a maximum of $150.00 will be charged for all rent that remains unpaid”
This portion of your sentence is not clear. Clearer:
“. . .up to a maximum of $150 in additional charges will be made until the full rent payment is made.”
Beyond the grammar and syntax, there may be some questions whether or not this penalty scheme is even legal.
Rent payments not paid on the 1st (first) day of each calendar month will be subject to a late payment charge…
As alluded to above, it should be “paid by the 1st.”
…of $75.00, an additional charge of $10.00 per day…
As mentioned above, the comma is inappropriate. Change it to a period or semicolon, or add the word “and” right after it. But the main lack of clarity here is how the $10 fee is applied. It doesn’t say $10 for each additional day after the first, so it could be construed that the $75 is assessed for being late at all, AND $10 per day is assessed for each late day including the first one, making the minimum late fee $85.
…up to a maximum of $150.00 will be charged for all rent that remains unpaid.
As mentioned above, it’s not clear if the $150 is the maximum for all late fees (including the initial $75), or only for the $10 daily fee, in which case the maximum for all late fees would be $225.
So yes, it’s ambiguous, unclear, and poorly worded in several ways.
Ok. Let me give you a hypothetical:
Ms. Tenant believes her rent is $600; landlord believes it is $700. Ms. Tenant pays $600 on March 1. On April 1, she pays another $600. On April 22nd, how much does she owe to landlord, assuming landlord is correct in its belief that the rent is $700?
I can’t tell you from your statement. Was she billed $75 on March 2nd? What does this rather complicated lease say about disagreements? The hypothetical doesn’t mean anything because the original statement is vague.
Oh yes.
The lease does not say anything about disagreements.
One of the things that I am trying to determine is whether I can argue that the $150 cap applies to all of the $10 per day charges.
So let’s try a more bare-bones hypo:
Ms. Tenant does not pay any rent in March or in April. On April 22, the late fess she owes are:
a. $300
b. $150
c. $225
d. $450
e. __________
Show your work.
Ah, with multiple months’ rent past due, a further problem is revealed. The statement says a maximum of $150 for “all rent that remains unpaid.” The intent was likely $150 for “each month’s rent not paid by the due date,” but that’s not what it says.
My first common-sense interpretation is that the late fees would be 300, derived from 150 for each of the two months paid late, so a.
From my above statement in this post, one could well argue that the late fee total would be 150, the stated maximum which covers all past due rent, or b.
From the ambiguity of the 10/day portion of the fee, one could argue that the fees would total 225, at 75 + 150, as the total for all past due rent; or 450, from 225 for each month, thus c or d.
Sure is ambiguous, ain’t it? 
A sharp attorney could probably have a lot of fun with this one.
I don’t believe that one could successfully argue that the 75 applies to each month but the 10/day caps at 150 regardless of how many months (or vice versa). That interpretation strikes me as too contorted and illogical.
Try this:
Rent is due no later than the 1st (first) day of each calendar month without regard to weekend, holidays, or religious observations. Failure to pay entire rent amount on or before its due date will result in a late fee of $75.00 the first day, and an additional late fee of $10 per each additional day the rent is not paid. The maximum late fees that will be assessed in any calendar month will be $150. Any and all payment received by landlord will be applied first to late fees, and then credited toward rent amount due.
You’d want to have a lawyer look it over first.
That’s what I was thinking, yest. It sure is ambiguous. And ambiguities are construed against the drafter; in this case, that is the landlord.
Ok. Yes this is a better version. If I were trying to improve the provision instead of attack it, I would say something like that. But
I would remove the “without regard to weekend . . . .” part of the first sentence, and write a separate paragraph called “What happens if I am supposed to do something on a weekend or holiday?” The without regard formulation just makes me worry, though I can’t imagine any ambiguities it creates right now. I would also consider omitting it entirely.
Similarly, I would have a more eleborate paragraph that does the job of the last sentence called “What if I pay less than I owe?” But that’s just me.
I would also probably have a sentence that expressly defines “late.” Maybe, “Rent is late if it is not paid by midnight on the day it is due.” Or maybe a phrase in place of the " without regard . . ." phrase that says, “and is considered late if not paid by midnight.”
Of course this thread assumes that the entire scheme won’t be found to be an unenforceable penalty. I’m not so sure that’s the case.
If I were trying to draft around that issue, I would say something like "We agree that the damages that the landlord will suffer from late payment of rent are uncertain. The damages can come from many sources and depend upon information (such as interest rates and filing fees) that frequently changes. This late fee provision is the parties’ agreement on an amount of liquidated damages. We agree that the late fees are based on a reasonable estimate of the damages that the landlord will suffer if the tenant pays rent late.
Of course, most courts will see this language for the window dressing that it is. And most will be suspicious of the high late fee on day one; the $10 per day part is virtually indefensible. The landlord would have to explain why its expected damages increase at such a high daily rate.