Accepting partial rent after serving Notice to Vacate

Accepting partial rent after serving Notice to Vacate

Oxnard, CA · Member since 2015 · 12 posts · 0 votes

This is my first time evicting a tenant. This relates to a commercial (retail) building in CA.

On 11/6, I served a delinquent tenant with a  3-day notice to pay or quit. Tenant requested that I give him until 12/15 to pay back rent and late fees, which I agreed to. However, on November 15, I served a 30-day notice to vacate and told him that if he paid everything he owed by 12/15, I might void the notice to vacate. 

The 3-day and 30-day notices were served (substitute service) on his business partner (the store manager who is not named on the lease) rather than the leaseholder, who was absent both times. For the 3-day notice, a separate copy was mailed to the leaseholder at the tenant's business address, but this wasn't done for the 30-day notice. I completed a Proof of Service form for both notices.

Is the 3-day notice still valid and I can go ahead and file an UD complaint using it as proof of service? Or is it considered to be "overridden" by the 30 day-notice that was later served, which could be ruled invalid since I did not mail a separate copy to tenant?

Tenant failed to pay by the 12/15 deadline and I now wish to file a UD complaint. However, the leaseholder is claiming that he never received any notices. I told him they were served on his partner. As long as I have a completed Proof of Service form, will any claim that he was never served be rejected by the court?

He also agreed to pay 50% of the back rent. Is there any downside to accepting a partial rent payment after serving a notice to pay or quit but before an unlawful detainer has been filed?

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Attorney, CPA, Broker & Author · Scottsdale, AZ · Member since 2018 · 532 posts · 488 votes
7y

Every jurisdiction has their own rules. You need to call the court and ask them your questions. Alternatively, you should probably get an attorney for your first eviction so you can do it right the first time and learn from watching them.

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  • Bay Area, CA · Member since 2018 · 46 posts · 32 votes
    7y

    do not accept partial rent,.....devoids all your letters ( or so i have heard)

  • Rental Property Investor · Northern, CA · Member since 2012 · 5k+ posts · 5k+ votes
    7y

    Actually there's different rules for commercial tenants (at least in California) and you actually can accept partial payments (provided the notice contained specific language) and still proceed with the Unlawful Detainer action.

    Here's some more reading on the topic:

    https://www.kts-law.com/commercial-landlordtenant-questions-answers/

    http://www.fastevictionservice.com/blog/california-eviction-notices-for-commercial-tenancies/

    As for serving both 3-day and 30-day notices, even with residential leases that would be allowed and one wouldn't void out the other.  (You could serve both.) 

    Ultimately, if you're not sure how to proceed, it might be wise to hire (or at least consult with) an experienced attorney as an eviction can get tricky and you have to make sure you do everything properly. 

  • Attorney, CPA, Broker & Author · Scottsdale, AZ · Member since 2018 · 532 posts · 488 votes
    7y

    Every jurisdiction has their own rules. You need to call the court and ask them your questions. Alternatively, you should probably get an attorney for your first eviction so you can do it right the first time and learn from watching them.

  • Contractor · Pensacola, FL · Member since 2018 · 303 posts · 240 votes
    7y

    Consult a lawyer

  • Bryan ZuetelPro Member
    Attorney · Orange County, CA · Member since 2017 · 242 posts · 99 votes
    7y

    @Michael W., you have a potential service problem with the 30 day notice that wasn't mailed.  The tenant's claim that he has not been properly served is likely to be rejected by the court, since he now knows about the notice, will certainly know about the notice by the time it reaches court, and still hasn't paid the rent.  Many of the answers to your other questions (in this commercial context) will depend on the terms of the lease.

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