Can I state in 3-Day Failure to pay notice that partial payments are not accepted?
Is there another way (other than stopping deposits) to handle this to avoid the situation again? Thank you!
1 attorney answer
Yes, And this might be an example (for others) why one should NOT try to lease property in this state without a landlord's attorney guidance. While YEARS ago, one could just put a sign up, and collect rent without a hitch, these days a landlord has to play it smart from the very beginning (just watch "Pacific Heights" with Matt Modine, Melanie Griffith - and Michael Keaton as the psychotic tenant if you don't believe me); and the critical starting point is in drafting a solid (and enforceable) LEASE. These days, tenats are getting very CRAFTY. But, JUST to avoid the modest fees a lawyer would charge, many wanna-be landlords use a "form lease," or potentially worse, try to craft their own (or add extra provisions or modifications to the form) without the help or guidance of a lawyer. then, a particular problem arises, and where do we look for answers? The Lease. That said, as expected, the answer here - turns on the terms of your Lease. The trigger for the need for a "new" 3 day notice under Section 83.56 - is the Landlord's ACCEPTANCE of partial rent. The problem here - is the ability to make a partial direct deposit. While arguably, you could return the partial payment the tenant deposited in your account immediately, that would take as much time as complying with the statute - and the latter method would avoid any possible defense based on statutory noncompliance. But this depends entirely on the terms of your Lease, which COULD provide that the direct deposit method of paying rent is the ONLY acceptable method of paying rent (thus you could not close off that possibility to the tenant); or it could provide that the DD method is suspended whenever a three day notice is delivered; and that upon default, and with the proper delivery of the 3 day notice, the payment on the 3-day notice must be delivered to XYZ, and then copy that same address on the notice itself (again as per 83.56). There are also several applications )some bigger companies use) that provide an "on line portal" to make payments (instead of DD) and with this application a LL can restrict partial payments. My guess is, however, you may have locked yourself into to this particular payment method, and may have to play the tenants games until it's time for a new lease. But you will have to check your Lease to be sure, and seek counsel if you are not. And please see a good landlords attorney when it comes time to establish a new Lease. Hope this helps. gsg
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