I live in California so my question concerns rental law in that state.
 It concerns partial payment of rent.  Essentially, if a renter pays
partial rent for the month, can the landlord evict him immediately; or
does he have to wait until the next month, since the landlord has
accepted partial payment for the month?

I pay $672 a month in rent.  For this month of November, I have paid
$500.  I have told them that I will have the remainder within a week. 
But the owners are leaning on me, threatening to initiate eviction
procedures if I don?t pay everything immediately.  My understanding is
that if the landlord has accepted partial payment for November, he
cannot evict me as I have paid part of my rent for November.  Now if
we were to arrive at the end of the month without paying, that would
be different as I would now owe for part of November as well as
December.

I understand that the landlord can refuse a partial payment, but once
he has accepted partial payment for the month and cashed the check, he
cannot evict during that month.

Any assistance would be appreciated.  As I said, this concerns California law.

Dear jphighfill-ga;

Thank you for allowing me to answer your interesting question.

I need to remind you of our disclaimer that says we cannot provide
legal advice in this forum. What I am about to tell you is merely the
result of research about a matter of published law for you to consider
and consult an attorney about. So, having said that, what you are
about to learn should not be construed as advice, rather it is a
reference to published law. How that law should be interpreted when
weighed against your situation is best left to an attorney.

Now, as I understand it you essentially have two questions: 

QUESTION #1: Is the fact that my landlord accepted partial payment and
cashed my check considered a binding agreement of modified terms?

QUESTION #2: In view of the fact that my landlord accepted partial
payment, can my landlord still evict me?


First things first:  Question #1


In some case you are right; cashing a check does indeed imply
agreement. Unfortunatly, in your case, this does not appear to be one
of them. It is, however much more complicated than that as you will
see in a moment.

In statutory jargon the ?implied agreement? you are referring to is
technically known as an ?ACCORD AND SATISFACTION?. Several states
recognize UNIFORM COMMERCIAL CODE (UCC) 3-311 ?ACCORD AND SATISFACTION
BY USE OF INSTRUMENT? as their basis of law. California (as of 1992)
is one of those states. What does the UCC say on the matter? Here it
is in it?s entirety:

UNIFORM COMMERCIAL CODE 3-311 ?ACCORD AND SATISFACTION BY USE OF INSTRUMENT?
http://www.law.cornell.edu/ucc/search/display.html?terms=3-311&url=/ucc/3/article3.htm#s3-311

California also has it?s own civil code that addresses ?accord and
satisfaction? and may actually take precedence. While it?s simpler
than the Uniform Commercial Code, this statute is also clear in that
it does not apply to your situation. California Civil Code 1526
states:

?(a) Where a claim is disputed or unliquidated and a check or draft is
tendered by the debtor in settlement thereof in full discharge of the
claim, and the words "payment in full" or other words of similar
meaning are notated on the check or draft, the acceptance of the check
or draft does not constitute an accord and satisfaction if the
creditor protests against accepting the tender in full payment by
striking out or otherwise deleting that notation or if the acceptance
of the check or draft was inadvertent or without knowledge of the
notation.

(b) Notwithstanding subdivision (a), the acceptance of a check or
draft constitutes an accord and satisfaction if a check or draft is
tendered pursuant to a composition or extension agreement between a
debtor and its creditors, and pursuant to that composition or
extension agreement, all creditors of the same class are accorded
similar treatment, and the creditor receives the check or draft with
knowledge of the restriction. A creditor shall be conclusively
presumed to have knowledge of the restriction if a creditor either:

(1) Has, previous to the receipt of the check or draft, executed a
written consent to the composition or extension agreement.

(2) Has been given, not less than 15 days nor more than 90 days prior
to receipt of the check or draft, notice, in writing, that a check or
draft will be tendered with a restrictive endorsement and that
acceptance and cashing of the check or draft will constitute an accord
and satisfaction.

(c) Notwithstanding subdivision (a), the acceptance of a check or
draft by a creditor constitutes an accord and satisfaction when the
check or draft is issued pursuant to or in conjunction with a release
of a claim.

(d) For the purposes of paragraph (2) of subdivision (b), mailing the
notice by first-class mail, postage prepaid, addressed to the address
shown for the creditor on the debtor's books or such other address as
the creditor may designate in writing constitutes notice.?

CALIFORNIA CIVIL CODE 1526
http://www.aroundthecapitol.com/code/code.html?sec=civ&codesection=1521-1526

So, the bottom line here is that you are contractually obligated to
pay x-amount each month and you have failed to adhere to the terms of
your rental agreement. The landlord?s acceptance of your partial
payment, according to how the statutes appears to read, DOES NOT
represent an ?ACCORD AND SATISFACTION BY USE OF INSTRUMENT? as the law
describes it. Why? Because the scenario you described, where a
creditor accepts a check and cashes it, is, according to the statute,
only relative to situations where the payment is intended to represent
a PAYMENT IN FULL. That is not the case here. What you described was a
partial payment in lieu of full payment at later date ? essentially a
modified agreement to your existing contract (and you cannot modify a
contract at will to suit your own needs without the consent of the
other party).

The short answer to Question #1 appears to be that your partial
payment is not considered a modified agreement and does not obligate
the other party (your landlord) to extend any modified courtesies to
you based on the fact that he accepted partial payment. You should
confirm this with a licensed attorney or a qualified representative of
California Legal Aid.

CALIFORNIA LEGAL SERVICES DIRECTORY
http://www.pic.org/resx/direclsp.htm

As for Question #2, YES, it is likely that your landlord has a valid
basis for beginning eviction proceedings against you for failing to
uphold the terms of the contract. Again, you should confirm this with
an attorney.

The reality is that if partial payment were legal and binding in spite
of what our contracts say we?d all be paying week-to-week or be one
month behind in our rent. Statutes like those I mentioned in the
Uniform Commercial Code and the California Civil Code are in place to
protect those interests. While you may have had a valid claim that an
accord and satisfaction existed between you and your partial payment
represented a modified agreement if YOUR LANDLORD had failed to adhere
to the contract (i.e. failed to provide amenities that were included
in your contract and that you were paying for), I simply could not
find, in the course of my research, any evidence which indicates that
such an agreement exists between you based entirely on the fact that
you just didn?t have the money at the time your rent was due.

Yes, I know?it isn?t happy news but I hope you appreciate the research anyway.

I hope you find that my answer exceeds your expectations. If you have
any questions about my research please post a clarification request
prior to rating the answer. Otherwise I welcome your rating and your
final comments and I look forward to working with you again in the
near future. Thank you for bringing your question to us.

Best regards;
Tutuzdad-ga ? Google Answers Researcher



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I think you're gonna have the law on the side of the landlord.

Keep in mind that this isn't legal advice and is not based on
California law, but the short answer is you have breached a contract.
You got some 'splainin' to do, and the courts generally don't side
with tenants in these situations.

If you had paid the landlord one dollar and he deposited the check,
you would hardly expect to have eviction proceedings stalled, right?
Conversely, if you were five bucks short of a full payment nobody
would really be all that concerned.

Just because the landlord deposited the check doesn't mean you can't
be evicted, I expect. Even putting a note in the memo "payment in
full" or similar wouldn't get you out of it, though you could argue so
in court. Alternatively, for the landlord to refuse your rent would be
ridiculous because refusing a partial payment would open the landlord
to the risk that no payment at all would be received-- and courts
expect folks to mitigate their damages.

[I am surprised more landlords don't do what I do: offer a substantial
discount for prompt payment on or before the first of the month. The
incentive to save one or two hundred dollars is powerful indeed, and I
have only had late payments a handful of times. Just an observation.]

It would be best if you promptly paid your rent and, if your landlord
is a person instead of a corporation, sent a nice, polite, apologetic
note explaining why it won't happen again. Furthermore, talking with
your landlord instead of springing a partial payment on him may be a
good idea assuming he is reasonable. You might benefit from paying
your rent every two weeks instead of monthly (careful--- over a year
there will be an extra month's payment. Be sure it gets credited
properly!)

The landlord is quite likely making noise about eviction to ensure
that you are sufficiently scared into paying the rent. Eviction is
costly and time consuming and tenants usually don't pay rent during
it, though they are supposed to. Often, evictions are short-circuiited
by the landlord "bribing" the tenant to leave. I knew one gal who
didn't pay rent for two months AND got half a G to clear out... and it
was STILL a bargain for the landlord!

The big thing in your favor is the substantial portion of the rent you
paid. At least you didn't try to fob off $100 or $200.

I will leave a proper response to an Answerer. Good luck!

Actually it's worse than you think.  If you haven't paid the rent in
full, this would seem to indicate they can issue a three-day eviction
notice, meaning they can kick you out in three days:

http://www.dca.ca.gov/legal/landlordbook/terminations.htm

I'm not a lawyer...but the language in the link above seems pretty clear.

1st you should check w/ a CA lawyer, CA Law in some areas very diff
then other states, but first if the LL files for eviction it will take
3 weeks for a court date prop, so by that time if you have rest of the
rent the eviction will stop,  accepting partial payment maybe a
defense for you but by the time you go to court if it's the next
month, then its a mute point, also at this time better have next
month's rent in full doubt full LL will take partial again, also late
fees must be reasonable s o watch thay, but to be evicted the LL must
go to ocurt and get a judgment then have a sheriff not the LL remove
you will take some weeks so best start saving the monies to pay the
rent