Partial payments-eviction. Help please!

[Mary Jay]

I need to evict  a tenant  and this tenant is paying the first part of the rent through zelle, and the second part  of the rent by a check (because she has a limit on zelle.)

Her zelle pmt for the month of February went through but her check bounced. So she paid partially for the month of February.

She wrote me checks for her second portions of the rent all the way through July.

She is on a month to month lease so I sent her a notice of the lease non renewal yesterday.

My attorneys paralegal is saying that I need to accept the second portion of the rent if its done in february. But if she pays her second portion  for february in march then I have to refuse it because it wont be the full payment.

Then the paralegal  said that since Ive accepted those checks from the tenant all the way through July Ive accepted the payments.

I asked the paralegal if I can return those checks because I sent the notice of lease non renewal,  but she said she does not know and will have to set up the meeting with an attroney. Thats fine, but he is busy and will be able to talk to me in two weeks. Meanwhile, I wanted to ask your guys opinion on it.

I know the state laws might differ but usually it gives a general idea, plus people on this forum are super smart.

Question:

1) If I am not renewing the lease do I return the checks to the tenant?

2) If I need to return the checks do I keep the March check and try to cash it because her last day according to the lease non renewal notice is March 31 of 2023

Thank you so much!

[Jeff Copeland]

First of all, Eviction and Termination or Non Renewal of a Month to Month Tenancy are two completely separate things. 

Having your month to month lease terminated by the landlord is not an eviction. 

An eviction is a lawsuit where you sue the tenant for possession of the rental unit because they refuse to pay and/or refuse to leave and/or are violating some other term or condition of the lease. 

Are you evicting the tenant for non-payment of rent? In this case, you'd normally serve the tenant a "pay or quit" notice (it's called different things in different states, but that's the gist of it: Pay us everything you owe before this notice expires, or move out, or we're going to evict you.) 

Here in Florida, once such as notice has been posted, you MUST accept payment in full prior to expiration of the notice. You don't have to accept a partial payment. IF you do accept a partial payment, the eviction notice becomes null and void (but you could take the partial payment and serve a new notice for the new amount owed and start over). Sometimes this is a tough call: Do you take the money, or do you preserve your right to move forward with the eviction and get it over with?

Or are you simply terminating their month to month tenancy? If this is the case, then you should expect to collect the rent as stated in the lease through the time the tenancy expires, which you stated is March 31st. Assuming you served a legally sufficient notice, if the tenant stays beyond March 31st, you could then evict them for holding over, commonly referred to as a holdover eviction.

But this is complicated by the fact that I think you are saying you already accepted payment for April, May, June, and July as well? On this point, you need to talk to your attorney. If I were the tenant, I'd argue you already extended my tenancy through July 31st, and you can't have it both ways. And the judge might very well agree.