Evictions – Should a landlord accept a partial payment after serving a notice to quit?

In my years of eviction practice at Topkins & Bevans I have on many occasions been asked by landlords if a partial payment should be accepted from a tenant after the expiration of a notice to quit for nonpayment of rent.   As noted hereafter, such payments may be accepted so long as the landlord has taken certain steps in advance of accepting such payments. 

After being served with a notice to quit for nonpayment of rent a tenant-at-will can cure the default by paying in full the rent that is due within ten days of the tenant’s receipt of the notice to quit.   A tenant under a lease that has been served with a notice to quit for nonpayment of rent can cure the default by paying in full the rent that is due, plus any legal costs, on or before the due date of tenant’s answer in a summary process proceeding.   But what should a landlord do if the tenant sends in a partial payment after the tenant’s right to cure the non-payment of rent has expired?   Except as noted hereafter, in this situation a landlord should not accept the payment as most courts would find the acceptance of the payment reinstates the tenancy, or creates a new tenancy.   However, the landlord can accept the payment if certain steps have taken. 

 Generally, what the landlord needs to do to avoid reinstating the tenancy, or establishing a new tenancy, is to set forth in the notice to quit that any payments accepted by the landlord after service of the notice to quit are only for the tenant’s use and occupancy of the premises.  Properly worded, such notice establishes to the tenant, and more importantly to the court on review, that the tenant knew in advance that any partial payments made by the tenant would not serve to reinstate the tenanc, or establish a new tenancy.  This notice does not have to be set forth in the notice to quit; it is acceptable if such notice is contained in a separate document  received by the tenant.   Whether set forth in the notice to quit or a separate document, such notice must be received by the tenant before a landlord accepts a payment from the tenant.   That is, if the landlord accepts the payment and subsequently sends such notice to the tenant, then most courts would find that the landlord re-established the tenancy or created a new tenancy by accepting the payment before giving the requisite notice to the tenant.  

If after providing the proper notice to the tenant the tenant makes a partial payment via a check then the landlord should print on the back of the check  that the check is “Accepted only for use and occupancy, and with a reservation of rights to proceed with summary process.”  A landlord should also send  a written receipt to the tenant confirming that the check has been accepted only for the tenant’s use and occupancy and that the landlord has not waived the right to proceed with eviction. A similarly worded receipt should be given in the event the tenant tenders a cash payment to the landlord.

At Topkins & Bevans we have years of experience in handling commercial and residential evictions on behalf of landlords as well as tenants.   If you have need of an eviction attorney please contact Topkins & Bevans so that a skilled attorney may assess your case and guide you through the process.

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