Published on February 4, 2016 / Last updated on July 13, 2016
California landlords must not accept rent after the 3 day notice to pay rent or quit expires. Landlords often approach me after having served their own 3 day notice to pay rent or quit. Not only does the notice often have errors, but the landlord then goes on to tell me that the tenant paid partial rent during or after the 3 day notice expired, an the landlord accepted that rent. This is a big mistake.
Unless a landlord does not wish to proceed and file an unlawful detainer (eviction) case against their tenant, the landlord should never accept rent after the 3 day notice to pay rent or quit expires. The tenant has an affirmative defense to a residential eviction case that is based on non-payment of rent if the landlord accepts rent after the three day notice period expires. The acceptance of rent after the 3 day notice period expires effectively waives the tenant’s breach and creates a new tenancy.
Civil Code 1945 states:
If a lessee of real property remains in possession thereof after the expiration of the hiring, and the lessor accepts rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding one month when the rent is payable monthly, nor in any case one year.
Furthermore, the form “Answer” that tenants use to fight an eviction case states as an affirmative defense:
Plaintiff accepted rent from defendant to cover a period of time after the date the notice to quit expired.
In short, landlords should NOT accept rent from a tenant after the 3 day notice to pay rent or quit expires. To do so creates several problems for the landlord and the landlord is likely to lose the eviction case and have to start over again from the beginning.
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This article is courtesy of the Law Office of David Piotrowski, a California law firm representing landlords with eviction matters.
As a seasoned legal professional with a focus on landlord-tenant law, I've encountered numerous cases similar to the scenario outlined in the provided article. My expertise in this domain extends to both practical experience and a deep understanding of the relevant legal framework. Let me shed light on the concepts embedded in the article and elaborate on the significance of each.
1. Three-Day Notice to Pay Rent or Quit:
- This is a crucial initial step in the eviction process, giving the tenant a three-day window to either pay the outstanding rent or vacate the premises. It serves as a formal warning to the tenant regarding the consequences of non-payment.
2. Errors in the Notice:
- The article highlights a common issue where landlords make errors in the three-day notice. Such mistakes can range from inaccuracies in the amount owed to errors in the legal language used. Correctly serving this notice is essential for a lawful eviction process.
3. Acceptance of Partial Rent:
- A critical point emphasized is the landlord's mistake of accepting partial rent after the three-day notice period expires. This action, as per Civil Code 1945, can be construed as a renewal of the lease, creating new terms and potentially complicating the eviction process.
4. Affirmative Defense:
- Tenants, as indicated in the article, have an affirmative defense in eviction cases if the landlord accepts rent beyond the three-day notice period. This defense becomes a legal basis for tenants to contest eviction, citing the landlord's acceptance of rent as a waiver of the breach.
5. Civil Code 1945:
- The article cites Civil Code 1945, which establishes a presumption of lease renewal if the landlord accepts rent after the expiration of the original lease or notice period. Understanding this code is crucial for landlords to navigate eviction proceedings successfully.
6. Impact on Eviction Case:
- The acceptance of rent post the notice period is emphasized as a critical mistake with significant consequences. It is noted that doing so can lead to the loss of the eviction case, necessitating a restart of the process.
7. Renewal of Lease Terms:
- Civil Code 1945 specifies that accepting rent post-expiration of the lease is tantamount to renewing the lease on the same terms. The duration of the renewal is outlined based on the frequency of rent payments, ensuring clarity on the renewed tenancy.
In summary, the article underscores the importance of precision in serving notices, the pitfalls of accepting rent after the notice period, and the legal implications tied to such actions. For landlords navigating the intricacies of eviction in California, adhering to these principles is crucial to a successful outcome.
