Accepting rent after filing

I recently was involved with two cases where tenants sent rent payments after eviction actions had been filed with the courts. In both cases, the amount sent was not full payment for what was owed at the time. Each landlord proceeded differently with regard to how the rent payment was handled but evictions were obtained in both cases.

In the first case, the landlord held on to the partial payment (but did not cash it) and informed the tenant of the other amounts that were still due and owing. The landlord’s goal was to have the tenant get current on what was owed and move forward with the landlord tenant relationship. The landlord also informed the tenant that he was not accepting the partial payment and would not cash it until the entire balance had been paid.

The tenant (probably following someone else’s poor advice) disputed the additional monies owed and refused to pay them. Because the tenant had tendered the partial payment near the very end of the month in which it was due, the following month’s rent (March) was coming due very shortly. Instead of attempting to work out the balance owed with the landlord, the tenant placed her March rent in escrow with the clerk of court. The tenant had no valid legal reason for placing March’s rent in escrow and had not given 30 days’ written notice of her intention to place the rent in escrow.

The day of the hearing arrived and the landlord and tenant attempted to work out a resolution prior to the hearing. Unfortunately, no resolution was reached. At the hearing, the landlord attempted to return the rent payment to the tenant. The tenant refused to take it. The court did not reach a decision in the matter as the parties requested a continuance of the hearing.

At the next hearing, the tenant arrived with representation and argued that the landlord had accepted February’s rent; therefore, the eviction should be dismissed as it was based upon nonpayment of February’s rent. The landlord argued that he had made it clear via email correspondence that he was not accepting February’s rent but was merely holding it in the hope that the tenant would pay the remainder of February’s rent. Since the tenant would not accept the money order at the first hearing, the landlord returned it to her via ordinary mail and she received it.

The tenant’s attorney relied upon the case of Pace v. Buck arguing that the landlord had never informed the tenant that he was not accepting the money order as payment for rent. The landlord, however, had brought the entire email correspondence between the parties to court. At least two emails indicated that the landlord was not accepting the money order and that the landlord was not cashing the money order as it did not represent full payment of February’s rent. The Pace case proved more favorable to the landlord then the tenant in this matter.

In Pace v. Buck, the court found: “We are of the opinion that where the landlord retains a money order received from the tenant in payment of rent and the landlord fails to notify the tenant that the money order was not accepted in payment of rent, or that it was retained for evidentiary purposes, and fails to tender the money order to the tenant on or Before the day of trial, the retention of the money order constitutes an acceptance in payment of the rent.”

Under the reasoning of that case, if a landlord receives partial payment and/or late payment of rent after an eviction has been filed, the landlord must inform the tenant in writing that he is not accepting the payment and will not cash it if the landlord intends on proceeding with the eviction. At or before the eviction hearing, the landlord should return the money order to the tenant and provide a copy of his correspondence indicating his nonacceptance of the partial/late payment to the court.

In the second eviction matter, a similar scenario occurred. The tenant tendered a partial/late payment of rent. Not too long before the eviction hearing, the landlord returned the payment to the tenant along with a correspondence explaining his refusal to accept the payment. At court, the tenant testified that she never received this correspondence and that the landlord never returned her payment. Fortunately, the landlord had a copy of his correspondence at the hearing and presented it to the court. The correspondence indicated that he was returning the tenant’s payment. The court granted the eviction.

The tenant later contacted the court via telephone and claimed that she had just spoken with the landlord and he had admitted cashing the money order and then sending her a different money order; however, she had still not received the second money order. The court ordered an emergency hearing on the matter. In the meantime, the landlord received his original mailing back. Someone (most likely the tenant) had written “return to sender” upon the envelope. The tenant had basically made several misrepresentations to the court in order to avoid the eviction.

At the emergency hearing, the landlord presented the unopened envelope to the court and the eviction was upheld. The court refused to sanction the tenant for her patent misrepresentations.

If you are a landlord and you receive partial/late rent after you have filed an eviction action, your best course of action is to send a correspondence to the tenant indicating that you are not accepting the payment and that you are proceeding with the eviction. Include the partial payment with the correspondence and keep copies of the properly addressed and postmarked envelope, the correspondence and the payment. If you are a tenant and find yourself facing eviction because of a partial/late payment, you may want to consider a course of action towards resolving the matter with the landlord so that you may avoid the eviction.