May a landlord accept a partial rent payment after filing an unlawful detainer action? The answer is a cautious yes, if the landlord provides “actual notice” to the tenant that the acceptance of the partial payment of rent does not constitute a waiver of the landlord’s right to recover possession of the property or to sue for the remaining balance owed.
On the other hand, if a landlord accepts a partial payment of rent without providing the “actual notice” required, the landlord may have waived the right to collect any other amounts due and the right to seek possession of the property with respect to that default.
As you might imagine, the timing and nature of the “actual notice” has been the subject of some dispute. A recent California appellate case has helped landlords, by providing that the “actual notice” could be language in the lease itself. Therefore, it is important that the lease contain proper non-waiver language. If it does, it may provide a safety net for landlords that do accept partial payments during the pendency of an unlawful detainer action. Of course, a landlord would be well advised to add appropriate non-waiver language to the 3-day notices and the unlawful detainer complaint filed by the landlord.