Dear Consumer Ed:
Due to the Covid-19 pandemic, my landlord has been forcing residents to pay their rent online, which incurs an $18 to $30 fee. Is this legal?
Consumer Ed says:
Your question raises two issues: (1) Can a landlord require you to change your method of payment, and (2) can that landlord require you to pay for the services of a third-party online company collecting your rent?
Method of Payment
In Georgia, landlord-tenant relationships are generally governed by the terms of your lease agreement, except for some general protections provided by Georgia law. If you and your landlord have a lease agreement, you need to look at the terms of that lease for your agreed-upon methods of payment. If your lease explicitly states that payment is only allowed by check or cash at your option, then to deny you that right is a breach by the landlord. While you’re still under lease, you are protected by its terms, and the landlord cannot change its terms and require you to pay online. However, if the lease does not specify that payment is to be made only by cash or check, and the landlord requires that you pay online, there is nothing preventing him or her from enforcing the lease as written. Prior acceptance of cash or checks does not limit the landlord’s rights under the lease. Similarly, if the lease does not specify a particular method of payment, or if the lease allows the landlord to specify a particular method of payment, the landlord is likely free to use any commercially reasonable method of payment.
If you don’t have a lease agreement, you’re what’s known as a tenant-at-will, and only have the protections in Georgia law. In Georgia, a tenant-at-will may be a tenant whose lease expired but the landlord continues to accept rent, or it may be there was no written lease but the landlord accepts rent each month. In either case, for the landlord to make a change regarding the payment method or other items other than the term of the lease, or to demand higher rent or possession of the property by termination, the landlord must first give 60 days’ advance notice, generally in writing. This notice must be measured from the time the rent is initially due, such as the first of the month, not merely 60 calendar days. For the tenant to leave the property under a tenancy-at-will, the tenant must first give 30 days’ advance notice, generally in writing, also measured from the time the rent is initially due.
For example, if a tenant pays rent on the first of the month and wants to give notice to move, the tenant could not give notice on the fifteenth of November and calculate 30 days. Rather, the tenant would have to give notice to include a full 30 days following the term beginning on December 1st, the date the rent is due under the current tenancy-at-will term. The tenant would be liable for December rent. The same is true for the landlord. The 60-day period must coincide with the existing term of the lease, usually the first of the month unless a different date has been mutually agreed upon.
In either case, if you do submit payment to your landlord, and he refuses to accept your payment, keep a record of it. It may be a defense if the landlord seeks future action against you. As always, proof in writing is best, if possible.
Cost of Service
A landlord can only recoup merchant fees or require a tenant to incur merchant fees if it is spelled out in the lease and disclosed in the total cost of the apartment to the tenant in advance.
If the landlord requires rent payment through an online payment service provider, you may be able to avoid a merchant fee if your payment is linked to your bank account as opposed to a credit card. Always check the terms and conditions of the service you are using for any fees.
It’s worth re-stating that in Georgia, the lease controls. You should always read the lease thoroughly and understand its terms before you sign it. This is generally the best protection to prevent issues with rent payments (you should also keep a copy of your lease, should any issues arise).
The Georgia Apartment Association (GAA) reports that many apartment rental companies across Georgia are waiving fees associated with making online payments during the pandemic, as well as offering flexible payment plans and rent deferral programs for residents facing hardship due to the COVID-19 crisis. GAA recommends reaching out to your property manager as soon as possible to discuss flexible options that may be available to you.
If you cannot settle this dispute with your landlord, you should consider consulting with an attorney or seeing if your county magistrate court offers a mediation program.
For more information, you should consult the Georgia Landlord Tenant Handbook available on the Department of Community Affairs’ website at dca.ga.gov.