Evicting my tenant, can I take partial payment from tenant?

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Latest post 01-04-2013 9:35 PM by Drew. 10 replies.
  • 01-03-2013 11:18 PM

    • Kbr
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    Evicting my tenant, can I take partial payment from tenant?

    Thanks in advance for the help. There is no rent from my tenant for a month. I served a 3 day pay or quit. No rent still living at my property. Told them going to take legal action. Going to court tomorrow to file paper work. Tenant said mailed a check for partial payment today. Can I accept it whenever it reaches me and still go ahead with eviction? Should I reject the check and go to small claims to collect my rent later after eviction. Thanks again for the help.

  • 01-03-2013 11:52 PM In reply to

    • M Read
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    Re: Evicting my tenant, can I take partial payment from tenant?

    Probably NOT, so be safe, and do not cash it.  Check your state law re collecting rent at or after evictons. Probably do not even open the envelope, since they told you it's coming. I don't know whether you should hold onto it for court, or return it. Maybe somebody else has that answer.

     

  • 01-04-2013 11:15 AM In reply to

    Re: Evicting my tenant, can I take partial payment from tenant?

    I agree. If you accept partial payment you are probably doomed to more of same and many months and lots of expense trying to get the tenant out.

    Check your statutes right now.

    Starts at Section 1940:

    http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=civ&codebody=&hits=20

    "Telling" your tenant you were going to court was a bad move. You should have just filed on the 4th day.

    You are apparently unwise in the ways of being a landlord and are about to learn some lessons the hard way.

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 01-04-2013 12:22 PM In reply to

    Re: Evicting my tenant, can I take partial payment from tenant?

    Kbr:

    Thanks in advance for the help. There is no rent from my tenant for a month. I served a 3 day pay or quit. No rent still living at my property. Told them going to take legal action. Going to court tomorrow to file paper work. Tenant said mailed a check for partial payment today. Can I accept it whenever it reaches me and still go ahead with eviction? Should I reject the check and go to small claims to collect my rent later after eviction. Thanks again for the help.

    I think you can probably accept it, but I also think you almost certainly need a lawyer's help to evict your tenant so you should ask your eviction lawyer this question.

     

  • 01-04-2013 12:29 PM In reply to

    Re: Evicting my tenant, can I take partial payment from tenant?

    karen2222:
    I think you can probably accept it

    Actually in some states it is a VERY bad idea to accept partial rent as it allows the tenant to stay, renews the lease terms, and puts the landlord in a more difficult position to evict.  A few states have specific wording that partial rent will not stop an eviction, only payment in full. 

    GA is a state that allows for partial payment.  However, only once and then if there are future instances no partial payment will stop eviction.

    Since California is a VERY tenant friendly state I would not cash the check.  I would return it to the tenant stating no partial payments are accepted and only the full amount due will resolve the eviction process.

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • 01-04-2013 2:09 PM In reply to

    • Drew
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    Re: Evicting my tenant, can I take partial payment from tenant?

    Old LL's suggestion:

    Read your lease --in CA acceptance of partial payment (assuming the check is good)  may kill your odds to prevail on a current eviction UNLESS you have a lease which is carefully worded to have a waiver as to partial payment to preserve your right to evict for nonpayment  --professionally crafted leases of last 10 years may have such language as a CA court upheld such a waiver.  .

    If you don't know then don't cash/accept the check just yet and be blind as to if it is any good. .



  • 01-04-2013 3:58 PM In reply to

    Re: Evicting my tenant, can I take partial payment from tenant?

    Kbr:
    Can I accept it whenever it reaches me and still go ahead with eviction?

    Yes, but you may need to serve a new 3-day notice that shows the tenant owes $(X-Y) instead of $X (with $X being the monthly rent and $Y being the amount of the partial payment).  Just make sure the check doesn't contain a memo saying "full payment for January 2013" or something like that.  If it does, you can cross it out and accept it as a partial payment.

  • 01-04-2013 4:09 PM In reply to

    • Drew
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    Re: Evicting my tenant, can I take partial payment from tenant?

    The lay literature takes it a step further--that you MUST file a corrected 3 day notice with the new correct amount in it if you accept partial paymant --I'm NOT a lawyer --just if you are a LL in CA do extra careful homework to get it right unless you want to give tenant a free window for a do over on your part.

    I'm pragmatic--like money so I'd probably take the check and issue a new 3 day correct notice AFTER the check had cleared --for all you know the tenants check is a rubber one---be there...



  • 01-04-2013 7:38 PM In reply to

    • M Read
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    Re: Evicting my tenant, can I take partial payment from tenant?

    And this tie, do NOT tell them you are taking legal action.

  • 01-04-2013 9:24 PM In reply to

    Re: Evicting my tenant, can I take partial payment from tenant?

    According to the below, ca19lawyer2 is right, if you accept the partial payment you will have to file a new, revised 3-day notice with the amount owed changed to reflect the payment (scroll down to page 77):

    http://books.google.com/books?id=N5zqaOZIyGUC&pg=PA75&lpg=PA75&dq=stop+eviction+in+ca+by+partial+payment+of+rent&source=bl&ots=0tyDFTH4uO&sig=QYFMxG8CT5fhmQB8Ph9ZrzWTTEU&hl=en&sa=X&ei=q3XnUKrtOMX6qwHm4IFo&ved=0CE8Q6AEwAjgK#v=onepage&q=stop%20eviction%20in%20ca%20by%20partial%20payment%20of%20rent&f=false

    Of course, if the explanation in this book is exactly correct, and the rent that's past due on the date of filing is still the same because the check hasn't arrived in your mail yet, I 'd think you could file your eviction lawsuit and THEN a couple of days later deposit the check.

    But I'm no lawyer so I could be wrong about that.  If you're really not planning to hire a lawyer for the eviction, might be best to play it safe and send the check back.

  • 01-04-2013 9:35 PM In reply to

    • Drew
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    • Joined on 03-30-2000
    • PA
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    Re: Evicting my tenant, can I take partial payment from tenant?

    Without digging into CA issues I'd NOT assume a check in the mail counts nor a check which has yet to be deposied AND clear counts --but I've been faced with a judge in L-T court who viewed any scrap of paper looking like a check as good until some bank turned it down and told me my remedy was under the bad check laws ---



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