Split Payments, Roommate Replacements and more

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Question: I just received a phone call from one of my tenants asking me whether she can pay her rent for this month in two payments. I don’t like doing it, but she has been a great tenant over many years and this is the first time she has made such a request. While I want to help her, I don’t want to create any legal problems for myself. What are your thoughts on this situation?

Answer:
Generally, I’m not a fan of allowing tenants to make partial payments, as it sets up expectations that you will do so in the future. However, in your case, the tenant has been there quite a while and actually took the time to notify you in advance that she is short on rent. Based on her responsible behavior (which seems to be more and more rare these days), you might decide to allow her to pay rent in payments. Before you make that decision, be sure to check your rental agreement for a “nonwaiver” provision which states your decision to accept rent in two payments does not waive your right to insist on the entire amount on its due date in the future.

Assuming your rental agreement has such a provision (most modern agreements do), you can allow her to pay rent in payments without worrying about waiving your rights. Additionally, avoid putting anything in writing indicating the payment is for any specific period. Instead, simply provide her with a receipt (if you provide receipts) indicating the payment is a “partial payment” for the entire amount owed with a “balance due” for the unpaid amount. You can either issue a three day notice at the time she makes the partial payment, with a promise you won’t file eviction until the day after the date on which she has agreed to pay the balance (provided she fails to do so) or you can wait to serve the three-day notice until after the date on which she agreed to pay.

Either way, you are able to accept the partial payment without creating legal problems for yourself, keep control over the situation, and keep the relationship intact by accommodating her needs this month.

Question: In our lease agreements we require tenants to pay their rent on the first of the month. If the first falls on a holiday, such as Labor Day, do I have to give the tenant’s until midnight on the 2nd to pay the rent or can we still enforce the late fee as of midnight on the first?

Answer:
Rent is not delinquent unless one business day has expired from the date the rent is due. Where the first falls on a weekend or holiday, the rent becomes due on the following business day. So, you would not be permitted to charge them a late fee until 12:00 am of the following morning. For example, let’s say the first of the month fell on a Sunday. Rent would not be due until Monday morning at 12:00 am and you would not be able to charge them a late fee until Tuesday morning at 12:00 am.

Let’s change the example a bit. Let’s say the first fell on a Sunday, but Monday was a legal holiday. In that case, the rent “due date” will be Tuesday morning at 12:00 am and you will not be able to charge them a late fee until Wednesday morning at 12:00 am.

Question: I have a month-to-month rental agreement with a long term resident. I recently gave her a 60-day notice to vacate. Since the service of the notice, she hasn’t paid the rent so I served her with a three-day notice to pay rent or quit. A fellow landlord told me I may have invalidated my 60-day notice by serving the second notice afterwards. Did I void the 60-day notice?

Answer:
The three-day notice would not invali date the 60-day notice unless the notice de manded rent for a period of time beyond the expir ation of the 60-day period. However, if the situation were slightly different (e.g., you serve a three-day notice to remove un authorized occupants you discovered after serving a three-day notice to pay rent), the latter notice would act to reinstate the tenancy and invalidate the first three- day notice. In that situation, the removal of the unauthorized occupants would leave the tenancy intact and you would have to re-serve the three-day notice to pay rent or quit.

Question: I have a dilemma. I recently rented an apartment to four college roommates on a nine month lease that they all signed. Recently I received an email from one of them notifying me that one of the roommates moved out because he couldn’t get along with one of the other roommates, and that they had actually ended up in a fist fight one night. He then asked whether they would be permitted to “replace” the one who moved out in order to avoid the increase in rent the remaining three would have to pick up. What do I tell him?

Answer:
The nine month lease provides each of the students with a legal right to occupy the premises for the entire nine months, including the individual who moved out. Allowing the students to “replace” the individual who moved out without first confirming he has given up his right to occupy the premises could cause unanticipated problems.

While there is nothing preventing you from allowing the original lessees to amend the lease to “add” someone to the lease, doing so does not necessarily mean the roommate who left may not return. He still has a legal right to be there. Unless you, as the landlord, agree in writing with the roommate who moved out that he is releasing his right to occupy the property, he is legally permitted to return at any time (and he is still bound to the terms of the contract, including the payment of rent). Consider making an attempt to contact the roommate who vacated and letting him know that once his former roommates find a suitable replacement, you would like him to sign something stating he has no intention of returning and he gives up his right to occupy the property. That way, in the event the others fail to find a replacement and they fall behind in rent, you still have the ability to seek the rent from the original four roommates, including the individual who moved out, as they are all joint and severally liable for the rent during the contract period.

Question: The other day I served a three-day notice to pay rent or quit on a month-to-month resident. I was amazed to discover he actually vacated within the three-day period rather than digging in and making me evict him. My question is whether I now have the right to charge him for thirty days of rent after the move-out to comply with the month-to-month agreement?

Answer:
Sure. California law requires tenants to provide written 30-day notice of termination of tenancy unless the agreement provides for a shorter notice period. In this case, he owes you for thirty days rent, even if the 30-day period runs into the following month. However, be sure to document your efforts to relet the property (e.g., ads on Craig’s list, Westside Rentals, etc.) to prove your diligence in mitigating your losses. Additionally, you may deduct that unpaid amount from his security deposit.

The foregoing information is presented and intended to address the topic(s) covered above in a general nature. Specific situations and their facts should be presented to your attorney for review. Mike Brennan is the founder of Brennan Law Firm, one of the fastest growing and most experienced landlord-tenant law firms in Southern California, representing landlords exclusively in evictions, negotiations, and judgment enforcement. The firm may be reached at (626)294-0500, or toll free at (855)285-2230. Visit our website at www.MBrennanLaw.com for more information.

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