Landlord accepts rent payment after 60 day notice

[BobWhere]

California residential rental lease- landlord gave 60 day notice expiring on December 8, 2015 on a month to month lease resulting from an original one year rental agreement.

Landlord accepted cash payment for full December 2015 rental payment due, and provided a written receipt describing payment made was for "December Rent".

Since the landlord accepted the rent for the entire month of December, 23 days of which occur after the 60 day notice expiration, and since the tenant WAS NOT DELINQUENT ON RENT at that time or in the past, it would appear that the landlord has effectively voided the 60 day notice by accepting the payment for rent after the time governed by the 60 day notice.

QUESTION: Must the landlord create a new 60 day notice because he accepted this rent payment???

Ignoring tenant's argument that the rent acceptance invalidated the current 60 day notice, the landlord's attorney then sent a "Seven (7) Day Notice to Quit" letter - "based on the prior breach and default of the Residential Lease and failure to vacate the subject premises with the 60 day notice period that expired this date. Otherwise, legal proceedings will be instituted against you..." "You are futher notified that by this Notice, the lessor hereby elects to, and does herby declare a forfeiture of any such Lease, Rental Agreement or other arrangement under which you currently occupy the subject premises."

I am unable to find any provision for a 7 day notice to quit under California real estate law. It seems that this notice is complete bluster and an attempt to force out tenant without re-filing a 60 day notice (as landlord was made aware of the law and admitted to being "tricked" by tenant over accepted December rental payment.

No breaches of any kind, except the alleged breach of the 60 day notice to move out, have been created by tenant or alleged by landlord.

Tenant believes that 7 day notice to quit has no legal relevance. Tenant will send landlord a letter stating the need for and reasons why a new 60 day notice is required in the hopes of deterring landlord from filing a court case.

QUESTION: Is there any way the landlord can currently prevail in court on the matter of failure to vacate premises???

 

[STEPHAN]

What is your involvement in this?

We usually do not solve homework and respond to involved parties only.

 

[Zigner]

Since the landlord accepted the rent for the entire month of December, 23 days of which occur after the 60 day notice expiration, and since the tenant WAS NOT DELINQUENT ON RENT at that time or in the past, it would appear that the landlord has effectively voided the 60 day notice by accepting the payment for rent after the time governed by the 60 day notice.

Your conclusion is faulty. Once you realize that you are wrong, the rest falls in to place.

 

[Nellibelle]

California residential rental lease- landlord gave 60 day notice expiring on December 8, 2015 on a month to month lease resulting from an original one year rental agreement.

Landlord accepted cash payment for full December 2015 rental payment due, and provided a written receipt describing payment made was for "December Rent".

Since the landlord accepted the rent for the entire month of December, 23 days of which occur after the 60 day notice expiration, and since the tenant WAS NOT DELINQUENT ON RENT at that time or in the past, it would appear that the landlord has effectively voided the 60 day notice by accepting the payment for rent after the time governed by the 60 day notice.

QUESTION: Must the landlord create a new 60 day notice because he accepted this rent payment???

Ignoring tenant's argument that the rent acceptance invalidated the current 60 day notice, the landlord's attorney then sent a "Seven (7) Day Notice to Quit" letter - "based on the prior breach and default of the Residential Lease and failure to vacate the subject premises with the 60 day notice period that expired this date. Otherwise, legal proceedings will be instituted against you..." "You are futher notified that by this Notice, the lessor hereby elects to, and does herby declare a forfeiture of any such Lease, Rental Agreement or other arrangement under which you currently occupy the subject premises."

I am unable to find any provision for a 7 day notice to quit under California real estate law. It seems that this notice is complete bluster and an attempt to force out tenant without re-filing a 60 day notice (as landlord was made aware of the law and admitted to being "tricked" by tenant over accepted December rental payment.

No breaches of any kind, except the alleged breach of the 60 day notice to move out, have been created by tenant or alleged by landlord.

Tenant believes that 7 day notice to quit has no legal relevance. Tenant will send landlord a letter stating the need for and reasons why a new 60 day notice is required in the hopes of deterring landlord from filing a court case.

QUESTION: Is there any way the landlord can currently prevail in court on the matter of failure to vacate premises???

It appears to me your LL effectively waived the 60 day notice by accepting rent for a period of time after the 60 day notice elapsed. It seems reasonable to me that another 60 day notice would be required before you have to move out (providing you haven't done anything to warrant an eviction, which could get you out sooner).

To be safe, you should consult with an Attorney regarding the fact the LL accepted rent for the whole month of Dec. rather than institute his right to start the eviction process due to the fact you did not vacate the premises by the time the 60 day notice expired. Surely, you have a good defense to stave off eviction!

 

[TigerD]

It appears to me your LL effectively waived the 60 day notice by accepting rent for a period of time after the 60 day notice elapsed. It seems reasonable to me that another 60 day notice would be required before you have to move out (providing you haven't done anything to warrant an eviction, which could get you out sooner).

To be safe, you should consult with an Attorney regarding the fact the LL accepted rent for the whole month of Dec. rather than institute his right to start the eviction process due to the fact you did not vacate the premises by the time the 60 day notice expired. Surely, you have a good defense to stave off eviction!

It should be noted for the OP that the above poster is more frequently than not wrong in her assertions and advice on this forum.

I'd refer you to this guide published by the state: http://www.dca.ca.gov/publications/landlordbook/catenant.pdf
If you still have questions, a visit with an attorney in California might be in order.

TD

 

[quincy]

QUESTION: Must the landlord create a new 60 day notice because he accepted this rent payment???

QUESTION: Is there any way the landlord can currently prevail in court on the matter of failure to vacate premises???

The 60-day notice started the day after you received the notice and you had to pay rent up through the 60th day, in your case, the 8th of December (unless you paid the last month's rent when you moved in).

You overpaid by 23 days and should have this amount refunded to you by the landlord.

HOWEVER, unless the landlord cancelled the 60-day notice IN WRITING, you were required to move before the notice expired if you did not want a negative report on your credit. The 60-day notice was not voided.

Yes, it appears from what you have posted that the landlord can prevail in court on the matter of failure to vacate premises, because you did not vacate the premises before the end of or at the end of the expiration of the notice.

You can consult with a landlord/tenant lawyer in your area to verify and to see where you go from here (other than a different place to live).



(I am assuming the "2015" in your post is an error on your part and you meant "2014")

 

[LdiJ]

Your conclusion is faulty. Once you realize that you are wrong, the rest falls in to place.

Can you expand on how the conclusion is faulty? I am honestly curious since rent has been paid through December 31st at this point.

 

[quincy]

Can you expand on how the conclusion is faulty? I am honestly curious since rent has been paid through December 31st at this point.

Payment of rent past the expiration date of the 60-day notice does not void the notice. You cannot hope to extend your lease by paying extra money if you have already been notified the premises must be vacated - UNLESS the landlord agrees to extend the lease and does so IN WRITING.

So BobWhere's conclusion, that the landlord accepting more rent than is due effectively voids the 60-day notice, is faulty.

 

[LdiJ]

Payment of rent past the expiration date of the 60-day notice does not void the notice. You cannot hope to extend your lease by paying extra money if you have already been notified the premises must be vacated - UNLESS the landlord agrees to extend the lease and does so IN WRITING.

So BobWhere's conclusion, that the landlord accepting more rent than is due effectively voids the 60-day notice, is faulty.

So, basically the landlord can move to evict someone prior to the date that they are paid up in rent?...when there are no other violations? Does the landlord have to refund the excess rent?

 

[Zigner]

So, basically the landlord can move to evict someone prior to the date that they are paid up in rent?...when there are no other violations? Does the landlord have to refund the excess rent?

Yes, the LL will need to refund any excess rent paid. The LL is NOT evicting - the LL is simply terminating the MTM tenancy.

 

[quincy]

So, basically the landlord can move to evict someone prior to the date that they are paid up in rent?...when there are no other violations? Does the landlord have to refund the excess rent?

The written 60-day notice is what controls. The eviction process can start if the premises have not been vacated after the 60th day.

It does not matter how terrific a tenant has been or if the tenant has regularly paid rent on time, in other words. The 60-day notice can be given a tenant for reasons other than how the tenant behaved during their tenancy. Reasons for a 60-day notice could include the landlord's sale of premises, the converting of premises to another use, the renovation of the premises.

Because the tenant overpaid the rent due for the month of December, he is owed a refund (although, because he did not move by the 9th and needs to be evicted from the premises, I am not sure how California will handle the overpayment).

The bottom line is that a tenant cannot extend his lease just because the tenant wants to extend it. There must be an agreement in writing with the landlord that states the lease will be extended.

 

[Nellibelle]

The written 60-day notice is what controls. The eviction process can start if the premises have not been vacated after the 60th day.

It does not matter how terrific a tenant has been or if the tenant has regularly paid rent on time, in other words. The 60-day notice can be given a tenant for reasons other than how the tenant behaved during their tenancy. Reasons for a 60-day notice could include the landlord's sale of premises, the converting of premises to another use, the renovation of the premises.

Because the tenant overpaid the rent due for the month of December, he is owed a refund (although, because he did not move by the 9th and needs to be evicted from the premises, I am not sure how California will handle the overpayment).

The bottom line is that a tenant cannot extend his lease just because the tenant wants to extend it. There must be an agreement in writing with the landlord that states the lease will be extended.

I agree that the LL cannot extend the lease, however, I'm pretty sure that by accepting the full amount of DEC rent, the LL effectively created a new month to month tenancy! Therefore, I'm sure the judge would require a new 60 day notice to vacate!

 

[Ohiogal]

I agree that the LL cannot extend the lease, however, I'm pretty sure that by accepting the full amount of DEC rent, the LL effectively created a new month to month tenancy! Therefore, I'm sure the judge would require a new 60 day notice to vacate!

Can you back that up with ANYTHING?
Oh and you cant because caselaw disagrees. Start with the Supreme Court: Lindenberg v. Macdonald, 34 Cal.2d 678, 214 P.2d 5
Supreme Court of California
February 3, 1950
34 Cal.2d 678
214 P.2d 5

There are more but I think you need to educate yourself.

 

[Nellibelle]

Can you back that up with ANYTHING?
Oh and you cant because caselaw disagrees. Start with the Supreme Court: Lindenberg v. Macdonald, 34 Cal.2d 678, 214 P.2d 5
Supreme Court of California
February 3, 1950
34 Cal.2d 678
214 P.2d 5

There are more but I think you need to educate yourself.

I researched California 'Landlord/Tenant Basics' which is quite an extensive explanation on California Landlord/Tenant Law! http://www.courts.ca.gov/partners/documents;lthandouts.pdf

If you scroll down a ways you will see "Defenses to Eviction" and it describes one of the defenses one would have if the LL accepted rent beyond expiration of the 30/60 day notice.

Based on the above, I'm quite sure the OP would prevail in court if the LL tried to evict him after accepting rent that covered a period of time AFTER the 60 day notice to vacate expired!

 

[Nellibelle]

Can you back that up with ANYTHING?
Oh and you cant because caselaw disagrees. Start with the Supreme Court: Lindenberg v. Macdonald, 34 Cal.2d 678, 214 P.2d 5
Supreme Court of California
February 3, 1950
34 Cal.2d 678
214 P.2d 5

There are more but I think you need to educate yourself.

The case you cited here is over 64 years old! I'm pretty sure things have changed since then!