October 9th 2007 06:33 am
Bygones are Bygones – Avoid Waiver of Tenant Breaches
A landlord who accepts rent for the current month waives the right to evict a tenant for prior breaches of the lease, including previous failures to pay rent. MH2 CO. v. Hwang, 104 Wn. App. 680 (2001), Wilson v. Daniels, 31 Wn.2d 633 (1948).
For example, if a landlord accepts rent for, say October, the landlord may not evict for rent owed for September, August, etc. Recently I have seen several notices to pay rent or vacate demanding rent for several monthly periods, but skipping a month somewhere in the middle in whole or in part. This is a defective notice.
There are several ways to avoid this situation.
Practice tips:
1. Always read any check or other financial instrument presented by the tenant for payment as well as any accompanying letters, memos, etc. If the “for” section of the check states the money is for the current month’s rent, the landlord has waived the right to evict for any previous breaches, including non-payment of previous months’ rent.
2. Provide written receipts to the tenant that indicate moneys received have been applied to oldest obligations first, never to newer ones first. A written receipt is required if requested. RCW 59.18.063.
3. If the tenant insists that money tendered is for current rent and there are previous obligations you wish to credit the payment towards, reject the payment and issue appropriate notices.
It should be noted that the financial obligation is not waived, “only” the right to evict. In theory, a landlord could sue on the old rent owed and obtain a money judgment. However, if the landlord has accepted current month’s rent and the tenant continues to abide by the lease, the tenant stays.
As a practical matter, few property owners in this situation will find it worthwhile to pursue the paper victory. And bygones will be bygone.
Scott Eller
Washington Landlord-Tenant Attorney
TM
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