Daily Development for Monday, December 31, 2001

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

LANDLORD/TENANT; DEFAULT; WAIVER: "Boiler plate" non waiver clause works to defend against claim that landlord failed to provide tenant statutorily required actual notice regarding waiver.

Woodman v. Sofa U Love 2001 WL 1623256 (Cal. App. 12/19/01)

Landlord and tenant had a disagreement about the amount of rent abatement that tenant was to be allowed under a prior agreement relating to temporary vacancy during an improvement program undertaken by landlord. In the course of this disagreement, tenant apparently withheld a rent installment. The Landlord promptly initiated an eviction proceeding by sending a "three day notice to quit. Tenant responded by making a partial payment of the rent, presumably that amount which it conceded that it owed. Landlord cashed the check, which it regarded as only part payment, but sent a notice to tenant that landlord's acceptance of the partial rent check was not a waiver of landlord's rights to declare tenant in default and to evict.

In the eviction proceeding, tenant raised a special California statute, applicable to commercial leases, that requires that notice of non-waiver despite acceptance of part rent must be provided prior to the tender of the partial payment:

"If the landlord accepts a partial payment of rent after filing the complaint pursuant to Section 1166, the landlord' s acceptance of the partial payment is evidence only of that payment, without waiver of any rights or defenses of any of the parties. The landlord shall be entitled to amend the complaint to reflect the partial payment without creating a necessity for the filing of an additional answer or other responsive pleading by the tenant, and without prior leave of court, and such an amendment shall not delay the matter from proceeding. *However, this subdivision shall apply only if the landlord provides actual notice to the tenant that acceptance of the partial rent payment does not constitute a waiver of any rights, including any right the landlord may have to recover possession of the property.*" (emphasis added)

The trial court rejected this defense and awarded eviction and damages.

On appeal, the tenant argued that the statute required notice prior to the tender of part rent, and could not be satisfied by a notice sent at the same time the check was cashed.

the California Court of Appeals agreed with this interpretation of the statute, but affirmed the eviction and damages award anyway, since it concluded that anti-waiver language in the lease satisfied the statutory notice requirement.

The lease contained the following language: "[t]he acceptance of rent hereunder by Lessor shall not be a waiver of any preceding breach by Lessee of any provision hereof, other than the failure of Lessee to pay the particular rent so accepted . . . ." The court concluded that this language in the lease satisfied the "actual notice" requirement of the statute.

Further, it refused the tenant's invitation to quibble about the fact that the statute speaks of "waiver of any rights" whereas the language in the lease addressed waiver of a "breach."

Comment 1: The "boiler plate" actually worked. How bout that? Given this interpretation, it would appear to be virtual malpractice for a California attorney to write a lease and not to include anti waiver language in satisfaction of the statutory requirement. It is rare that the boiler plate actually keeps the boiler together, but this appears to be one of those situations.

Comment 2: Although the editor agrees with the decision, he does note that the issue might operate differently if the party charged with "actual notice" is a successor to the original tenant. Certainly there is constructive notice in such cases, but the California legislature saw fit to use the term "actual" notice.

Comment 3: The editor refuses the gambit to make jokes about the name of the appellant tenant in this case. The editor's personal relationships with items of furniture are private and ought not to be discussed in a public forum.

Compare: Faith Reformed Church of Traverse City, Michigan vs. Thompson, 2001 WL 1543441 (Mich. App. 12/04/01), the DIRT DD for 12/11/01. (Tenant's tender of rent accompanied with statement that tenant disputes that rent is owed and views payment as an accord and satisfaction is binding on landlord, and Landlord cannot proceed to recover balance of any claimed rent unless it tenders back the amount paid.)

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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