I had a good private attorney ask me on Twitter this morning what kinds of late fees landlords were prohibited from charging under the CARES Act to renters living in "covered properties”.
The answer is “all of them.” All, any kind of late fee.
The question sent me down an accidental rabbit hole and led me to draft a tweet thread about an issue that’s been on my mind since the passage of the CARES Act.
I have copied a lightly edited version of the full tweet thread below (with links!), but the bottom line is this:
Landlords are not allowed to charge late fees to tenants in "covered properties" under the CARES Act.
Some are.
Some landlords won’t even (care to) know they’re subject to the CARES Act.
Neither will their lawyers or debt collectors.
Including illegal late fees in amounts lawyers or debt collectors claim a protected renter owes violates the FDCPA.
If you are seeing landlords, their attorneys, or their debt collectors charging late fees to renters in covered properties, please help the renter find a lawyer.
Information on finding a lawyer is below and in our renters' rights FAQs.
👇👇👇Full tweet thread on this issue. 👇👇👇
There are three kinds of landlords right now.
1️⃣ Landlords waiving late fees.
2️⃣ Landlords charging late fees.
3️⃣ Landlords charging late fees in violation of the CARES Act.
If your landlord in Kentucky is a 3️⃣, feel free to slide right into my DMs or ben@kyequaljustice.org.
Under the CARES Act, landlords are prohibited from:
✅ charging to renters in “covered properties”
✅ any “fee, charge, or other penalty”
✅ related to the nonpayment of rent right now.
NO. LATE. FEES. IN. COVERED. PROPERTIES.
What does this mean for renters IRL?
First, is your home/apartment a “covered property”?
Basically, if your landlord is participating in public housing, Section 8, housing vouchers, programs for people who are elderly or disabled, Low Income Housing Tax Credits, and many rural housing programs. The National Housing Law Project has provided a full list of federal programs that would make a property a “covered property” in its CARES Act Eviction Moratorium Summary.
But, just because your landlord isn’t participating in any of those programs (that you know of), doesn’t mean that the property is not covered. Any single- or multi-family dwelling backed by Fannie Mae, Freddie Mac, or FHA is also a “covered property” under the CARES Act. Unfortunately, it’s hard for someone who is not the owner to determine whether that’s the case. That’s why some jurisdictions that are still allowing evictions require landlords to certify whether they’re subject to the CARES Act or not. But, you can find a list of multifamily dwellings covered by the CARES Act here.
One approach you might take is to write you landlord a letter/email and ask your landlord whether the property is a “covered property” under the CARES Act or whether the loan is backed by Freddie Mac, Fannie Mae, or FHA.
@KYEqualJustice has a tool to help generate a letter to your landlord. You could use it and download the Word doc to add that question to your letter before sending it. (I hope to update that tool to incorporate this question as an option soon.)
So, what do you do if you live in a CARES Act “covered property” and your landlord is charging you late fees?
YOU. GET. A. LAWYER.
You can find a @LSCtweets legal aid office anywhere in the nation here. And, @NACAdvocate has a “Find an Attorney” service for consumer lawyers in your state.
Charging late fees to renters in “covered properties” is illegal. Full stop.
What do you do if you live in a “covered property” and receive a letter from a lawyer or other debt collector claiming that you owe an amount of money that includes late fees?
YOU SUPER GET A LAWYER.
These people are debt collectors and they’re violating the FDCPA.
The Fair Debt Collections Practices Act (FDCPA) prohibits (among a lot of other things) misrepresenting the amount of a debt. If the amount includes illegal late fees, that’s a pretty
crystal-clear violation of the statute. (Hint: lawyers never say things like “crystal‑clear” without also saying "pretty" or "probably" first.)
15 USC 1692f prohibits “unfair or unconscionable means” of collecting debts, "including… (1) The collection of any amount … unless such amount is expressly authorized by the agreement creating the debt or permitted by law."
So, are late fees “permitted by law” under the CARES Act?
Repeat after me:
NO. LATE. FEES. UNDER. THE. CARES. ACT.
We punish people and companies who violate the FDCPA by making the debt collector (including lawyers collecting debts) pay statutory damages of $1,000, the victim’s actual damages, and the victim’s attorneys’ fees.
So, if you live in a “covered property” and are being charged late fees by your landlord or your landlord’s lawyer/debt collector during a global pandemic, let me give you three things to add to your to-do list today:
✅ Stay home.
✅ Stay safe.
✅ GET. A. LAWYER.