Landlord that Didn’t Cash Tenant’s Rent Payment Check Didn’t Waive Right to Evict

What Happened: A restaurant exercised its renewal option but furnished notice only after the option period had expired. A month later, the landlord sold the property and notified the new owner that the restaurant’s tenancy was now month to month. The tenant sent the next month’s rent check, but the new owner didn’t cash it and gave the tenant a 30-day termination notice. When the tenant didn’t vacate, the owner went to court to evict. The tenant claimed that the new owner had waived its eviction rights by accepting the rent check. The trial court sided with the new owner, and the tenant appealed.

Ruling: The California appeals court upheld the lower court’s ruling.

Reasoning: The tenant cited a California law stating that 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” (emphasis added). But the court rejected the argument noting that:

• The California rule pertains to residential property;
• The new owner didn’t accept the rent because it didn’t cash the tenant’s check and sent the tenant a notice to vacate; and
• Even if it had accepted the payment, the lease contained a non-waiver clause specifying that “acceptance of rent by Lessor shall not be a waiver of any Default or Breach by Lessee.”
• Southwest Fuel Mgmt. v. Ampak-I Enters., 2022 Cal. App. Unpub. LEXIS 7703, 2022 WL 17750493