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Common Pitfalls for San Diego Landlords in the Unlawful Detainer (Eviction) Process: Accepting Partial Rent

Once an eviction notice is served on a tenant, he or she may try contacting the landlord to ask for an extension of time to pay the rent. It’s likely that by the time the landlord has gotten around to actually starting the eviction process, the tenant is MORE than one month’s rent behind….and probably owes the landlord a substantial amount of money. A common scenario involves the tenant trying to give the landlord partial payment and promising to pay the remainder of the amount due in the future as a compromise.

Ultimately, accepting partial rent after starting the eviction process is a judgment call for the landlord. Do you really believe the tenant will eventually pay the full amount due? How long are you willing to wait for it? Do you think the tenant will be short on rent again in the future? The landlord needs to know that accepting any money throws a wrench into the process that has already been started.

It might be tempting to accept any money the tenant may try to provide, but it will only delay the eviction process if the landlord still wants to go forward with the unlawful detainer in the event that the tenant doesn’t keep his word and make the subsequent payment on the remaining amount due. In a residential unlawful detainer case, once the landlord has served a 3 Day Notice for nonpayment of rent, if he or she accepts rent from the tenant, the notice is invalid as it no longer accurately reflects the amount the tenant owes. A new notice will have to be served. If the UD lawsuit had already been started when the landlord accepts partial rent from the tenant, a new complaint will have to be filed. In an eviction lawsuit, the amount due that is stated in the Complaint must match the amount due that is stated in the 3 Day Notice.

It’s important to note that these rules apply to residential leases only and commercial leases are governed by different rules, which may allow accepting partial rent.

In order to avoid the problems described above, always consult with a real estate attorney about your Unlawful Detainer questions. For more information, please contact Richardson “Red” Griswold of Griswold Law.

For further reading on this topic, be sure to check out other recent articles on common UD pitfalls, like service evasion and unnamed occupants.

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