A recent published Court of Appeals unlawful detainer case ruled on the issue of whether a landlord may accept rent after service of a notice terminating a month to month tenancy. The court ruled that the landlord did not waive the notice to terminate tenancy.
After having been served a notice to terminate their month to month tenancy the tenants sent money orders marked as “rent” to the landlord. The landlord’s attorney deposited the funds in his trust account and wrote a letter to the tenants informing them that the landlord still considered their continued occupation of the premises illegal.
The tenants argued that the acceptance of rent waived the notice or in the alternative created a new agreement. The trial court rejected this argument and issued the writ of restitution.
The Court of Appeals noted earlier case law that established the rule in Washington that a landlord may not accept rent after serving a notice to pay rent or vacate or a notice to comply with lease terms or vacate. The court distinguished these cases in that the landlord is not required to cite a breach in a notice to terminate a month to month tenancy and there is nothing to cure. Therefore nothing is waived.
The Court also held that an unsolicited payment did not create a new agreement, particularly in light of the landlord’s attorney’s letter.
A landlord should not accept rent for any rental period after the termination date of a notice to terminate tenancy. Also, rent should not be accepted for the period covered by a notice to terminate tenancy if the tenant pre-paid last months rent.
Before accepting rent after service of any unlawful notice a landlord should consult with an attorney. Accepting rent after service of a notice may waive the notice and force the landlord to start the eviction process over.
