This is a question for Blog Clinic from Harry (not his real name), a landlord in the UK.
We are trying to understand what to do if a tenant falls behind on their payments. For example, we asked a tenant to pay in advance on the 1st of each month, and the tenant said they couldn't pay on the 1st because they didn't get paid until the 12th. We agreed. But sometimes they didn't pay on the 12th.
So my question is, when does rent become overdue? If I don't pay on the 12th of every month, does it become overdue for that month, or at the end of that month or on the 12th of the following month?
answer
The general law is that rent is payable in arrears (see here for why this is the case).
However, in most cases, rent is paid in advance because the tenant has specified a prepayment in the lease.
Rental terms
From what you've said, it sounds like this is the case with your lease: rent is paid in advance on the 1st of each month.
In that case (unless otherwise agreed) if the tenant has not paid by midnight on the 1st, the rent will be in arrears on the 2nd of the month. Because rent is paid in advance, the tenant does not have to be living in the property for the period for which rent is being paid.
Agreement to change payment date
However, currently, you have an agreement with your tenant to pay rent on the 12th of each month. Therefore, if this agreement is still in effect, the tenant will be in arrears if rent is not paid by midnight on the 12th, meaning they will be in arrears from the morning of the 13th.
However, it does not say how this agreement was reached, whether it was agreed or confirmed in writing (and if so, what was specifically said), or whether it was only a verbal agreement (e.g., by telephone).
Written confirmation
Generally, it's a good idea to get rent paid on payday, but here's my advice to landlords in this situation:
The agreement must be confirmed in writing (e.g. letter or email) and the permission must be subject to the tenant paying on the new date.
The letter or email must:
You must confirm that you agree to change your rent payment date. [original date] To [new date]The contract is conditional on payment being made promptly by that date, and if the rent is not paid by the due date, the contract will be terminated and the rent payment date will be [original date]
If the tenant is having financial difficulties and cannot pay on the new payment date, contact them. The contract does not change the rental period, it is simply a contract about when rent is due.
This will provide clarity on what has been agreed upon.
This last point is because some people think that their lease agreement will need to be amended, or that the terms of their lease will somehow be changed by this type of agreement.
But that's not the case. Let's think about it this way.
The lease requires that rent be paid one month in advance. The contract provides for changing the “paid in advance” period from one month to one month. [whatever your agreement provides]In your case, that's 12 days less than a month.
If the tenant does not pay on the new due date
You say that sometimes tenants fail to pay on the 12th. If this happens, I think the contract could be considered void, even if it's not stated in writing.
So, for example, it might be a good idea to write a letter saying that you are concerned that the other party has not paid despite you having agreed to change the payment date and that you will consider the contract to be terminated unless the other party rectifies the situation and makes payment within seven days.
If payment still isn’t made, consider sending a Section 8 Notice.
Helping tenants make payments
Alternatively, if you have a good relationship with your tenant, you can offer them assistance. We have a special kit, the Delinquent Tenant Assistance Kit, to assist landlords who are in this situation and want to help their tenants with their payments.
The rent arrears action plan also includes a lot of help and guidance for Landlord Law members.