Avoid Eviction

By Maggert

I am 24 months into a 36 month lease with the rent payment being 1650.00/month for a nice house 13 yrs old. The late payment is 5% which is a total of 1732.50. We spent 2800.00 on new carpet and gave him a 1650.00 security deposit in which 500.00 is non-refundable improved the yard and landscape. On the purchase price he has a 5% increase in property value each year which the housing market is losing money. I don’t plan to buy this home anyway but I need the remaining year of the lease for my kids school zone.

History:  I have lost two 90k+ jobs do to the economy and have been late on many payments. I expressed my situation to my landlord and he has been working with me however, I have been threatened with eviction multiple times. He has graciously given me to the end of the month to pay rent + late fee. I have done this for at least 8 months straight. In April I wasnt able to pay on the last day of the month but asked if he could wait till May 8th in which I would deliver a cashiers check to him. He threatened eviction and I contacted a lawyer and got a consult, emailed him stating that I cannot make any arrangements other than the May 8th. He accepted that and I delivered the check May 8th 10am. This month (August 2010) I delivered a personal check post-dated 9-8-10 and asked him to hold this (which he has done multiple times) over the past 2 years. He has acknowledged the receipt but gave me notice via email that I need to get him a cashiers check by noon (9-1-10) as well as droping the email print copy off in my box which was not in an envelope and plainly states Action Needed to Avoid Eviction with both our names written on it. My kids go to the same school has his and thankfully I went to the box instead of them or this would have upset them dearly. He has sent me emails with statement concerning the impact on my children, etc. This summer is extremely hot and we have been having issues with the AC upstairs since August 1st 2008 before when we moved in. It continues to get worse each year and in July and August we experienced 77-80 degree temps late at night(documented and emailed pics to him)  upstairs where all the bedrooms,baths, and bonus rooms are. I had to make multiple calls to him concerning this where HVAC guys did not show once. He responds with the fact that the summer is hot and the unit is old but works within specifications and that he has spent 500+ dollars and cannot pay for anymore service calls if the unit isnt broken. He then offered to have insulation added and had he and an insulation guy came by and we went into the attic and discussed it. That has been more than 16 days now with no reponse on when it will be done. He is just waiting till fall just has he done last year.

Questions:

Does his acceptance of my late payments and actually stating that rents can’t be past 30 days set a precedent for a new due date of rent other than the date stated in the lease.

He has acknowledged accepting my post-dated check (3 days now) but did not state that he would return it and begin eviction process. Does this constitute a waiver of his right to terminate the lease? My original lease states that if its 15 days late without notification of when it will be paid it can be considered in default. The 8th of September still gives me 7 days before September can be considered in default however I have documentations saying the end of the month is acceptable.

He held a post-dated personal check in May which cleared but won’t accept the August post-dated check which is after I complained and he needed to spend money on  HVAC service calls. Do I have a retaliation defense?

Is the email he sent me considered a pay or quit notice?

He wants to discuss over the phone but when that happens I lose valuable documentation. Email is fine when he needs something documented but when I have an issue with the HVAC or something else it is better discussed over the phone and then details are left out in the wriiten document that comes later. Am I okay in requesting that we communicate via email for better documentation?

I have invested money and do not want my kids uprooted and moved in the middle of the school year so this is why I am interested in contesting. I have notified him that I have consulted with an attourney and that I can only honor the post-dated check on 9-8-2010 in one last email yesterday afternoon and haven’t received a response yet? What should I do now?

I apologise for the long post and questions but I am in need of guidance.

Thank you in advance.

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