Accepting partial rent payment AFTER 3 day notice but BEFORE eviction filing

[leebirnbaum]

Texas

I'm a Texas landlord.
I have a tenant that gave me a personal rent check last month (March), which I later (recently) found out bounced.
Further he did not give me a rent for this current month (April).

Due to this, I issued a 3 day notice to vacate for violation of the lease: Failure to pay March rent, failure to pay April rent, failure to comply with the late fee schedule.

Today, being day 4, the day I'm eligible to file for eviction, he contacts me and offers a partial payment (approximately 2/3 of 1 month's rent), and says he will probably have the remainder of 1 month's rent with in a week, and then will have the other month unpaid rent soon.

In attempt to minimize my loses, I accepted the partial rent today (cashiers check).
I plan to give him until his next payday (this Friday), and if he doesn't come up with more $, or communicate with me about a plan, issue a new 3 day notice to vacate, with new amounts itemized, accounting for the credit for the partial rent payment.

My question is this: By accepting the partial rent payment, did I inadvertently void my rights to pursue eviction?
Note that I accepted the partial payment AFTER the 3 day notice to vacate was issues, but BEFORE a legal court eviction was filed (since I never filed the eviction).
And if the tenant decides to not pay further, I would plan on issuing a new, updated fresh 3 day notice that states the current status of the rent situation, and take it from there.

Further, I point out that the partial rent I accepted is less than the past due amount. Anotherwords, none of it can be considered "future" rent. It is all undisputedly "past rent".

From my research, I feel it is unclear as to Texas law, if I have forfeited my eviction rights or not.
If it sounds like I DID forfeit my rights in accepting the partial payment, then I will further point out that while I accepted the cashiers checks, I did NOT yet cash them, meaning I can in theory return them to the tenant.

While I very much want to accept (cash) this partial payment, I would not want to do so if it means potentially forfeiting my right to evict, and even the balance of the unpaid rent (which is far more than the partial payment tenant made.

Thx in advance for any advice.

 

[STEPHAN]

Your 3 day notice is very likely to be invalid anyway if you included late fees. Even if you make them part of the rent per the contract, judges in Texas usually do not agree to that.

It is end of April, how did you recently find out that the March check bounced? Did you not have it under control or did it take weeks to bounce?

 

[leebirnbaum]

Your 3 day notice is very likely to be invalid anyway if you included late fees. Even if you make them part of the rent per the contract, judges in Texas usually do not agree to that.

It is end of April, how did you recently find out that the March check bounced? Did you not have it under control or did it take weeks to bounce?

1st, thanks for the quick reply!

In all past experiences, I've included late fees in notice to vacate.
In fact, I've probably evicted at least twice with the same judge/precinct that this particular house falls into.
Afterall, failure to pay late fees is a lease violation/breech.
However, if memory serves me correct, I think the actual court form to file explicitely states NOT to include things like late fees, so I leave all that off on the actual filing.
The reason I include it in the notice to vacate is so that late fees are fair game in terms of deposit disposition should that come into play.
In court, my experiences is that the judge only asks to see/verify that I did infact give at least 3 days notice.

That said, 90% of my evictions were done as default judgements, with out the tenant present.

As for the timing - Every month I fought with this tenant over rent, sending notices monthly.
Finally, I figured out the reason for delay - he get's paid on the 2nd Friday of each month.
In accordance, I agreed to allow him to pay on that day - 2nd fri, and would not charge late fees unless the postmart indicated that he did NOT pay at that time.
In the case of March, he dated his check 3/16 (the 2nd fri). He insists he mailed it then, but the postmark reveals 3/19.
I received it in the mail 3/20, and deposited it on 3/21.
I then was out of town with a mail hold.
The letter from the bank showing bounced came 1st week of April.
I returned April 16, and discovered it then.
Been struggling to communicate with the tenant ever since, including a trip to the property, which is when I was able to obtain his new cell #.

I'm not keen on enforcing late fees, especially in a situation where the tenant hasn't money to pay the base rent.
I only try to stick with them to a) show Im serious and consequence b) be consistent since I have other properties.
Still, when I send a legal notice, for my own protection (at least so I thought), I always include late fees per lease, or later agreement that modified it like in this case.

But based on your comments, if I send a new future notice, I will provide a non-late fee total, and then mention the late fees in a downplayed manner, just to state them, but not emphasize as what's required to save the tenancy.

Ill also add that I'm a bit jumpy about collecting from this tenant because I know he's "secretly" trying to move.
I was contacted by a prospective landlord about his rental history.
He said the tenant is wanting to move "asap", yet he's never supplied me notice.
Ultimately he was rejected for the new property, and I assume that's why he remains with me.
So I want to be very cautious about how I handle this, especially with respect to trying to have rent to cover as much of his possibly abandonment that I'm expecting.

But if I am understanding you, I think you're possibly implying that I'm good to go should I need to restart the eviction process, beginning with a new 3 day notice, even though I've accepted partial rent.

All my research suggests this is valid, UNLESS rent is accepted AFTER the court filing takes place. But that's the crux of what I am unsure about.

THanks again!

 

[FarmerJ]

Since you accepted a partial for march then any unpaid rent complaint that would be the basis to begin to evict again is unpaid April rent, Stop accepting partials if you want this tenant out.

 

[leebirnbaum]

Generally speaking, I do not want a tenant out if I think theres a chance we can get straight on the rent.
The cost and effort of dealing with likely damages and finding a new tenant usually means that if they're already there, I prefer to keep them as long as possible.

But the need to be able to legally evict is oviously still critical.
For one thing, its the "nuclear deterrent" for the landlord to maintain some form of control.

The other thing is that if it does come to eviction, I hope it can be in a situation where they owe just 1 month or less rent and not 2 - another reason why I like the idea of partial payments vs.nothing.

The timing us ironic in that this happening is exactly when I had to be out of town, and thus couldnt be as on top of monitoring payments as I try to be.
...Murphy's law - never fails.

So im kinda trying to dig out if the hole and financially salvage things to the best extent possible.

But ultimately forfeiting eviction leverage eould be a game changer...

Thanks again fir the help.
Lee