New York: Late Rent Fee Limits

Requirements one by one

The $50-or-5% cap

New York fixes both the timing and the size of a residential late fee in Real
Property Law § 238-a(2). A landlord may not charge a late fee "unless the payment
of rent has not been made within five days of the date it was due," and the fee
"shall not exceed fifty dollars or five percent of the monthly rent, whichever is
less." So the lawful maximum is whichever figure is smaller: on a $1,000 rent, 5%
is $50, so the cap is $50; on a $900 rent, 5% is $45, so the cap is $45; and on a
$2,000 rent, 5% is $100 but the $50 dollar limit controls, so the cap is still
$50. The one special case is a cooperative, which may charge up to 8% of the
monthly maintenance fee for a late maintenance payment if the proprietary lease
provides for it.

Because the statute caps the total "payment, fee, or charge for the late payment
of rent," a landlord cannot stack a flat fee plus a daily charge to get above the
$50/5% ceiling for a given month. The cap is on the whole late charge, not on each
line item.

Five days before any fee

The five-day rule is a hard floor. No late fee is lawful until rent is more than
five days past due, regardless of what the lease says. This pairs with a separate
duty: under § 235-e(d), once rent is unpaid for five days past the date set in the
lease, the landlord "shall send the lessee, by certified mail, a written notice
stating the failure to receive such rent payment," and a landlord who skips that
notice hands the tenant an affirmative defense in a nonpayment eviction.

Waivers are void

Section 238-a(3) makes "any provision of a lease or contract waiving or limiting
the provisions of this section ... void as against public policy." A lease clause
setting a $75 late fee, or charging a fee on day two, does not override the
statute; the statutory limit controls and the excess is uncollectible.

Related fees

The same section limits two neighboring charges. A returned-check (bounced-rent-
check) fee is allowed only if the lease provides for it and is capped at the
landlord's actual costs or the amount set in General Obligations Law § 5-328(3),
whichever is greater (§ 238-a(2-a)). And fees for processing an application or
running a background or credit check are separately capped — the credit/background
check fee at actual cost or $20, whichever is less (§ 238-a(1)).

What trips people up

"Whichever is less" cuts the other way from what many leases assume. A lease
that says "5% of rent" is only lawful up to $50. Above a $1,000 rent, 5% exceeds
$50, and the flat $50 cap wins. The tenant always pays the smaller of the two
figures.

The fee cannot start on day six by lease alone if the rent was paid. The fee
attaches only when rent "has not been made within five days." A payment made on
the fifth day is timely, and no fee is due.

A "we waived the cap in the lease" clause is worthless. Section 238-a(3) voids
any lease term that tries to waive or shrink these protections, so a signed lease
with a higher late fee does not make the higher fee collectible.

Common questions

My rent is $1,500 and the lease charges a $75 late fee. Is that allowed? No.
Five percent of $1,500 is $75, but the flat $50 cap is lower, so $50 is the most
the landlord can charge. The extra $25 is uncollectible, and the lease clause
setting $75 is void under § 238-a(3).

Can I be charged a late fee if I pay on the fourth day? No. Rent is not late
for late-fee purposes until it is unpaid more than five days after the due date.

What if the landlord never sent me the certified-mail late notice? Under
§ 235-e(d), the landlord must send a certified-mail notice once rent is five days
late, and failing to do so can be raised as an affirmative defense if the landlord
later sues to evict you for nonpayment.

Statutes and sources

• N.Y. Real Prop. Law § 238-a(2), (3) — late fee capped at the lesser of $50
  or 5% of monthly rent, only after rent is more than five days late; co-op
  maintenance fee up to 8%; waivers void.

  2. No landlord, lessor, sub-lessor or grantor may demand any payment, fee, or
     charge for the late payment of rent unless the payment of rent has not been
     made within five days of the date it was due, and such payment, fee, or charge
     shall not exceed fifty dollars or five percent of the monthly rent, whichever
     is less ... 3. Any provision of a lease or contract waiving or limiting the
     provisions of this section shall be void as against public policy.

Official source: https://www.nysenate.gov/legislation/laws/RPP/238-A (accessed 2026-07-20)
- N.Y. Real Prop. Law § 238-a(2-a) — returned-check fee allowed only if in the
lease and capped at actual costs or the Gen. Oblig. Law § 5-328(3) amount.

2-a. (a) No landlord ... shall demand any payment, fee, or charge from a tenant
for the delivery of a check ... subsequently dishonored ... except as provided
in paragraph (b) ... (i) such payment, fee, or charge shall not exceed the
actual costs, charges or fees incurred ... for the return of such dishonored
check or the amount set forth in subdivision three of section 5-328 of the
general obligations law, whichever is greater[.]

Official source: https://www.nysenate.gov/legislation/laws/RPP/238-A (accessed 2026-07-20)
- N.Y. Real Prop. Law § 235-e(d) — certified-mail non-payment notice after
five days; failure is an affirmative defense in a nonpayment eviction.

If a lessor, or an agent of a lessor authorized to receive rent, fails to
receive payment for rent within five days of the date specified in a lease
agreement, such lessor or agent shall send the lessee, by certified mail, a
written notice stating the failure to receive such rent payment. The failure of
a lessor ... to provide a lessee with a written notice of the non-payment of
rent may be used as an affirmative defense by such lessee in an eviction
proceeding based on the non-payment of rent.

Official source: https://www.nysenate.gov/legislation/laws/RPP/235-E (accessed 2026-07-20)