How Landlords should Handle an Offer of Payment in Response to a 3 Day Notice to Pay or Quit

A 3 Day Notice to Pay Rent or Quit is commonly used by Landlords when dealing with a tenant who is delinquent on his monthly rental payments.  Often the Notice is ignored, forcing the landlord to pursue an eviction lawsuit against the tenant.  But what happens if the tenant wants to pay? Should the landlord accept the payment and, if so, what effect does that acceptance have on the landlord’s ability to evict the tenant?

The landlord can only move forward with an eviction against the tenant if the tenant fails to pay the rent due or move out of the house within three days after being served with the 3 Day Notice to Pay Rent or Quit.  If the tenant pays the full rent within the 3 day period, the landlord will be unable to sue the tenant in an eviction proceeding based on non-payment of rent.  Accordingly, it the tenant tenders full payment during the 3 day period, the landlord must accept it, which extinguishes the landlord’s eviction claim based on that three day notice.   

What happens if the tenant attempts to make a partial payment of the amount set forth in the 3-Day Notice during the 3 day period? The landlord has no obligation to accept the payment.  If he does, acceptance of the partial payment will operate as a waiver of the landlord’s right to proceed with the eviction based on that notice.  If the landlord desires to pursue an eviction case after accepting partial payment, he or she would need to first serve a new Notice demanding payment of the outstanding amount due after deducting the amount tendered in partial payment.

How should the landlord respond to a tender of payment made after the 3 Day Notice period has expired? It depends on the landlord’s ultimate objective.  If the tenant is generally acceptable and the non-payment was an isolated occurrence, the landlord may decide to accept the payment, but doing so invalidates using the 3 Day notice as a basis for an eviction case against the tenant.  If the ultimate objective is repossession of the subject premises, the landlord can reject the payment and proceed with the eviction.  No California law requires the landlord to accept a payment made after the 3 day period expires. Unlike tendering rent during the 3 day period, an offer by the tenant to pay the rent to the landlord after the 3 day notice period expires is normally no defense to the eviction.

The 3 Day Notice time period is calculated as starting the day after it is served and expires at midnight of the third day after it was served.  If the third day is a weekend or holiday, it will expire at the midnight of the next business day. The day on which the notice is served is not counted. Weekends and holidays also are not counted when calculating the three day period.  So for example, a 3 Day Notice issued on Monday will expire at midnight on Thursday. And if Thursday is a holiday, it will expire at midnight on Friday.  

Please contact Lynx Legal with any questions regarding the above, or to discuss any issues relating to a contemplated eviction of your tenant.  We can be reached at 888-441-2355 or info@lynxlegal.com.  You can also schedule a free telephone consultation with one of our representatives on our website.  Our experienced professionals are standing by to assist in any way we can.