Can Landlord Evict Me for Failing to Pay Rent on Time When I've Been Late Before

Q. My lease says that I am to pay the rent by the first of the month. I have been late almost every month by a few days, and my landlord has never objected. Recently, I was late by two days, and now my landlord wants to evict me for failing to pay the rent on time. Can he evict me?

A. When two parties engage in a course of conduct that is different from the written terms of the lease, the Court will often find that the written terms of the lease have been waived. The theory behind this is what is called freedom of contract. There are two ways a contract can come into existence, by words (whether written or oral) or by deeds. The written lease is an example of the first type of contract, an express contract. The deeds (paying the rent late every month by a few days and the landlord not objecting) is an implied contract. The deeds of the parties show the court that the parties intended to be bound by a different agreement than the one that they had previously reached.

Interestingly enough, the more often you can show the court that you were late, the better it is for you. Being late on the rent one or two times may not be enough for the Court to find that the landlord waived his right to strict compliance with the terms of the contract. Being late month after month after month shows the Court a pattern, a course of dealings, that led the tenant to rely upon the fact that being a few days late was no big deal.

The only way that the landlord can regain his right to strict compliance with the written terms of the rental agreement is to send out a letter of strict compliance. This letter must say something to the effect of "Ok, tenant, you've been late in the past on the rent, and I have accepted such payments, but now this is all changing, and from now on, I insist upon being paid strictly in accordance with the terms of the lease." If your landlord sends you one of these letters, then a Court is unlikely to find waiver the next time you are late on your rent.

This type of argument works with almost every condition in a written lease. If your lease says no pets, but your landlord has known that you have a pet at the apartment from the outset, then you can argue that your landlord has waived strict compliance with the no pets clause. The only complication arises when there is an anti-waiver clause in the rental agreement. Some rental agreements assert that no course of dealings shall constitute a waiver of the terms of the agreement. The tenant of course will argue that such clause impermissibly hinder freedom of contract, and as a back up argument can assert that the anti-waiver clause itself was waived by the course of dealings between the parties that was inconsistent with it. Ohio law is currently unclear on whether a court would enforce such an anti-waiver clause.

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