New York late fee rules for rent

When a New York late fee is allowed

Section 238-a(2) of the Real Property Law covers any payment, fee or charge for the late payment of rent on a home. It sets a wait and a limit, and both apply statewide.

The wait is five days. No late fee can be demanded unless the rent has not been paid within five days of the date it was due. With rent due on the 1st, rent paid on or before the 6th is inside the five days.

Five-day wait

No late fee unless rent has not been paid within five days of the date it was due. N.Y. Real Prop. Law § 238-a(2)

Limit

$50 or 5% of the monthly rent, whichever is less. N.Y. Real Prop. Law § 238-a(2)

No waiver

A lease or contract clause that waives or limits the section is void as against public policy. A lease with a longer grace period or a smaller fee stays inside the limit. A shorter wait or a bigger fee does not. N.Y. Real Prop. Law § 238-a(3)

How much: $50 or 5%, whichever is less

Take 5% of the monthly rent. If that comes to less than $50, that is the limit. If it comes to $50 or more, the limit is $50.

On $900 rent, 5% is $45, so the limit is $45. On $1,000 rent, 5% is $50. On $2,400 rent, 5% would be $120, so the limit is $50. Any rent of $1,000 or more has the same $50 limit.

The limit covers “any payment, fee, or charge for the late payment of rent.” The section has no separate allowance for daily fees or for a higher fee backed by the landlord’s costs. It also doesn’t say whether the fee has to be written in the lease.

Rent under $1,000

5% of the monthly rent. $700 rent: $35. $900 rent: $45. N.Y. Real Prop. Law § 238-a(2)

Rent of $1,000 or more

$50. $1,500 rent: $50. $3,000 rent: $50. N.Y. Real Prop. Law § 238-a(2)

The certified mail notice when rent is five days late

A separate section deals with notice. If the landlord, or an agent authorized to receive rent, doesn’t receive the rent within five days of the date in the lease, the landlord or agent sends the tenant a written notice by certified mail stating that the rent wasn’t received.

This notice isn’t tied to charging a late fee. Its weight shows up later: if the landlord didn’t give written notice of the missed rent, the tenant can raise that as an affirmative defense in an eviction case based on nonpayment.

Notice of missed rent

Written notice by certified mail when rent isn’t received within five days of the date in the lease. N.Y. Real Prop. Law § 235-e(d)

If no notice was given

The tenant can use it as an affirmative defense in a nonpayment eviction case. N.Y. Real Prop. Law § 235-e(d)

Late fees can’t be claimed in a nonpayment case

Before starting a nonpayment case, a New York landlord makes a written demand for the rent with at least 14 days’ notice. The demand asks for payment of the rent or possession of the home, and it is served the way § 735 of the Real Property Actions and Proceedings Law describes. Until June 15, 2034, the 14-day notice also carries the Good Cause Eviction notice from Real Property Law § 231-c.

In that kind of case, “rent” means the monthly or weekly amount charged for the use and occupation of the home. No fees, charges or penalties other than rent may be sought in a summary proceeding, whatever the lease says. So a $50 late fee can’t be claimed in that case, even when the lease calls it added rent.

If the tenant pays the full amount of rent due at any time before the hearing, the landlord accepts it and the grounds for the case are moot.

Rent demand

Written, with at least 14 days’ notice, asking for the rent or possession. N.Y. Real Prop. Actions and Proceedings Law § 711(2)

What counts as rent

The monthly or weekly amount charged for use and occupation of the home. No fees, charges or penalties other than rent may be sought in a summary proceeding, notwithstanding any lease language. N.Y. Real Prop. Actions and Proceedings Law § 702(1)

Payment before the hearing

Payment of the full rent due before the hearing ends the nonpayment case. N.Y. Real Prop. Actions and Proceedings Law § 731(4)

What it costs to get it wrong

Section 238-a names no dollar penalty for a late fee above the limit. What it does say is that the fee can’t be demanded, and that a lease clause waiving or limiting the section is void.

The practical cost is in the other sections: a late fee can’t be collected through a nonpayment case, and a missing certified mail notice hands the tenant a defense in that case.

Penalty in § 238-a

The section sets none. N.Y. Real Prop. Law § 238-a

Rentals this page doesn’t cover

Co-ops and manufactured home parks have their own numbers. Rent-stabilized and rent-controlled apartments, and subsidized housing programs, can carry added rules on fees that this page doesn’t cover.

Co-op shareholders

Up to 8% of the monthly maintenance fee for late maintenance, if the proprietary lease or occupancy agreement provides for it. Co-ops under Articles 2, 4, 5 or 11 of the Private Housing Finance Law are left out of this exception. N.Y. Real Prop. Law § 238-a(2)

Manufactured home park lots

Late charge of no more than 3% of the late payment, and none on rent received within ten days after the due date. The charge has to be in the lease or the park’s rules. Late charges can’t be compounded and aren’t additional rent. N.Y. Real Prop. Law § 233(r)