I served my tenant a 72 hour pay or quit notice for non payment & weren't able to agree on anything & are going to a trial. They mailed me a cashier's check for a partial payment, I know if I cash it I won't be able to move forward with the eviction. My question is can I mail the cashier's check back to them or do I have to cash it and then mail them a money order? I read that I need to do this within 6 days of receiving the payment & am confused on how to properly return the partial payment. Thanks!
Don't assume you can't cash the check. In fact, be careful assuming that you need to mail it back to them. They might accuse you of failing to mitigate your damages, and that is a good defense at trial. They might say you were the landlord that wouldn't take yes for an answer and you've been refusing their rent just so you can file for eviction. You should probably accept the partial payment, and because there is still a balance, you can evict for the remaining balance. Either way, you need to consult with your attorney on this, if you don't have one, get one before trial. Having an attorney at a trial, even a simple eviction trial, can make all the difference.
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You need to be VERY careful about accepting the advice of out-of-state attorneys, no matter how well meaning they may be. Advice to accept partial rent payments and arguments about failing to mitigate your damages if you do not do so are non-sense in Oregon. There is a statute directly on point - see ORS 90.417(4) which specifies accepting partial rent payments waives your right to evict under a 72 hour notice unless you fully comply with the very limited exceptions specified therein, such as having a written agreement to the contrary with the tenant - and why would they enter into such an agreement? No, return the rent to the tenant - you are most likely be set up by a knowledgeable tenant in hopes of saving their court case at your expense. You actually have 10 days to return the rent to them and either way you suggest is perfectly fine. You can return the actual check/money order, etc. that they gave you or you can simply send them your own back, as long as your actions are timely. You can return it either in person or by first class mail (NOT certified) - those are the only ways. Not slipping it under the door, etc.
If you are unsure, consider retaining a local landlord-tenant attorney to represent you. It will maximize your chances of getting everything right the first time though it sounds as if most of your actions have already been taken so you will live with their results, right or wrong.
Best of luck.
Nothing contained herein should be considered as legal advice for any specific situation and nothing herein is intended to create a lawyer-client relationship. Every case is very "fact-specific" and persons wishing legal advice on a specific matter should contact me or another attorney for an appointment to review their particular circumstances and to create a lawyer-client relationship.
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