Sep 08

A five day notice for payment is a “pay or quit” or right to cure. If the tenant presents the full amount within the five day period the notice is void.  Remember if you serve via certified mail, you must add two days.

The law changed with 2013 ACT 76, effective in March 2014.

799.40 (1m) Acceptance of rent or other payment. If a landlord commences an action under this section against a tenant whose tenancy has been terminated for failure to pay rent or for any other reason, the action under this section may not be dismissed solely because the landlord accepts past due rent or any other payment from the tenant after the termination of the tenant’s tenancy serving notice of default or after commencing the action.

If the tenant pays a portion but not all the rent due, the notice is probably valid.  The tricky part here is if you the tenant felt that you agreed to waive the notice if they made the partial payment.  This turns into ‘he said, she said’  To avoid that issue we have the following at the bottom of our notice:

“Non Waiver: If you make a  payment  of less than the $xxx.xx required by this notice, you will still be in default and SUBJECT TO EVICTION  unless the Owner agrees in writing to cancel this notice.”

Our system also prints the following on receipts of tenants with active five days:

“Non-waiver: This partial payment will be applied to past due rent owed and that by accepting same owner is not waiving his right  to proceed with an eviction based on the 5-Day notice dated xx/xx/xxxx unless tenant enters into a written payment agreement for the balance and owner agrees in writing to vacate the notice.”

Just because you CAN do something doesn’t mean you SHOULD.  Don’t be a jerk about it.  If the tenant owes, let’s say $900, and pays, let’s say $820, with a promise to pay the balance with next month’s rent and you quietly accept the money and then file the eviction that would meet my definition and probably the Court Commissioner’s definition of being a jerk.  Court Commissioners can find some pretty creative ways around jerks. 😉  However in the same scenario the tenant gives you $200 and promises to be back on Friday to pay the balance on Friday and fails to, then by all means evict.

Finally the reader asked about payment in full of rent and late fees.   The law does not currently permit late fees on five day notices for month to month tenants and inclusion of those on a five day will cause the eviction to fail in some counties.  The Apartment Association is working to change this law in the current session.

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