Preserve Right to Collect Partial Rent After Sending Eviction Notice

If you have a tenant that fails to pay its rent, you may decide to send it an eviction notice so that you can kick it out of its space. You may even start the eviction proceeding. But if the tenant pays you some—but not all—of its overdue rent after getting your eviction notice (and after you've started the eviction proceeding), there might be an unexpected problem. That's because, if your lease is like many we've seen, it may have this loophole: It doesn't say whether you can continue to evict the tenant after accepting its partial payment. So a court might decide to bar you from evicting the tenant.

To plug this loophole, add language to the lease that preserves your right to evict the tenant, says Los Angeles attorney Sheldon A. Halpern.

California Owner Can Evict Tenant

Because a California owner had such language in its lease, it preserved its eviction right. The lease said that by accepting rent, the owner wouldn't waive any rights it was entitled to as a result of a previous lease violation by the tenant. When the tenant failed to pay rent, the owner sent the tenant a notice demanding the overdue rent within three days, or the owner could evict it. This notice didn't address whether the owner could accept partial rent payments without waiving its right to evict the tenant. The tenant didn't pay the overdue rent within the three days, so the owner sued to evict it. The tenant then paid part of the overdue rent. The owner accepted this partial payment, but notified the tenant that it was still proceeding with the eviction.

A lower court said that the owner could evict the tenant. The tenant appealed, claiming that the owner failed to comply with a California law that requires the owner to notify the tenant that the owner's acceptance of rent isn't a waiver of its right to evict the tenant.

A California appeals court ruled that the owner could evict the tenant. The court said that the lease's language satisfied the law's requirement that the owner notify the tenant that its acceptance of partial rent wouldn't be a waiver of its right to evict [Woodman Partners v. Sofa U Love].

Make Sure Lease Has Nonwaiver Provision

To preserve your rights, too, make sure your lease has a nonwaiver provision, says Halpern. The nonwaiver provision should say that your acceptance of partial rent won't waive any of your rights or remedies under law or the lease, including your right to evict the tenant and recover possession of the space, he says.

Halpern suggests adding this nonwaiver provision to your lease:

Model Lease Language

Acceptance of a partial rent payment shall not constitute a waiver of any of Landlord's rights available under this Lease or at law or equity, including, without limitation, the right to recover possession of the Premises.

Add Nonwaiver Language to Eviction Notice

Although having the nonwaiver provision in the lease may be enough to protect you, Halpern also suggests adding it to the eviction notice. After all, while the California owner won its case, the lawsuit started because its eviction notice didn't include a nonwaiver provision, notes Halpern. So the California owner had to waste time and money defending itself. By putting the nonwaiver provision in your eviction notice, you may be able to prevent a similar lawsuit from ever starting, he says.

Practical Pointer: Check with your attorney to see if your state's laws require that you take any additional steps to prevent a tenant's partial rent payment from damaging your eviction right, says Halpern.

CLLI Source

Sheldon A. Halpern, Esq.: Partner, Pircher, Nichols & Meeks, 1925 Century Park E., Ste. 1700, Los Angeles, CA 90067; (310) 201-8900.