CACI 4324 Affirmative Defense—Waiver by Acceptance of Rent

California Civil Jury Instructions CACI

4324 Affirmative Defense—Waiver by Acceptance of Rent

[Name of defendant] claims that [name of plaintiff] is not entitled to evict [him/her/nonbinary pronoun/it] because [name of plaintiff] accepted payment of rent [after the three-day notice period had expired/[name of defendant] had violated the [lease/rental agreement]]. To succeed on this defense, [name of defendant] must prove:

[1.That [name of plaintiff] accepted a [partial] payment of rent after [the three-day notice period had expired/[name of plaintiff] knew that [name of defendant] had violated the [lease/rental agreement]] [./; and]

[2.That [name of plaintiff] failed to provide actual notice to [name of defendant] that partial payment would be insufficient to avoid eviction.]

If [name of defendant] has proven that [he/she/nonbinary pronoun/it] paid rent, then [he/she/nonbinary pronoun/it] has the right to continue occupying the property unless [name of plaintiff] proves [one of the following:]

[1.That even though [name of plaintiff] received [name of defendant]’s [specify noncash form of payment, e.g., check], [he/she/nonbinary pronoun/it] rejected the rent payment because [e.g., it never cashed the check]][./; or]

[2.That the lease contained a provision stating that acceptance of [late rent/rent after knowing of a violation of the [lease/rental agreement]] would not affect [his/her/nonbinary pronoun/its] right to evict [name of defendant]][./; or]

[3.That [name of plaintiff] clearly and continuously objected to the violation of the [lease/rental agreement].]

Directions for Use

The affirmative defense in this instruction applies to an unlawful detainer for nonpayment of rent or breach of another condition of the lease if either the landlord accepts a rent payment after the three-day period to cure or quit has expired or the landlord waived a breach of a condition by accepting rent after the breach and then subsequently served a notice of forfeiture and filed an unlawful detainer. Acceptance of rent may also be a defense to an unlawful detainer if the tenant remains in possession after the expiration of the terms of the lease. (See Civ. Code, § 1945; Kaufman v. Goldman (2011) 195 Cal.App.4th 734, 740 [124 Cal.Rptr.3d 555].) This defense is available for breach of a covenant prohibiting a sublease or assignment only if the landlord received written notice of the sublease or assignment from the tenant and accepted rent thereafter. (See Civ. Code, § 1954.53(d)(4).)

With regard to the tenant-defendant’s burden, include the word “partial” in element 1 and read element 2 only in cases involving commercial tenancies and partial payment. (Code Civ. Proc., § 1161.1(c).)

With regard to the landlord plaintiff’s burden, give option 3 if there is evidence that the landlord at all times made it clear that acceptance of rent was not a waiver of the breach. (See Thriftimart, Inc. v. Me & Tex (1981) 123 Cal.App.3d 751, 754 [177 Cal.Rptr. 24] [accepting rent for five years was not a waiver].)

Sources and Authority

Commercial Tenancy: Acceptance of Partial Payment Not Waiver. Code of Civil Procedure section 1161.1(c).

Acceptance of Rent After Expiration of Term. Civil Code section 1945.

When Acceptance of Rent Is Not Waiver. Civil Code section 1954.53(d)(4).

“It is a general rule that the right of a lessor to declare a forfeiture of the lease arising from some breach by the lessee is waived when the lessor, with knowledge of the breach, accepts the rent specified in the lease. While waiver is a question of intent, the cases have required some positive evidence of rejection on the landlord’s part or a specific reservation of rights in the lease to overcome the presumption that tender and acceptance of rent creates.” (EDC Assocs. v. Gutierrez (1984) 153 Cal.App.3d 167, 170 [200 Cal.Rptr. 333], internal citations omitted.)

“The acceptance of rent by the landlord from the tenant, after the breach of a condition of the lease, with full knowledge of all the facts, is a waiver of the breach and precludes the landlord from declaring a forfeiture of the lease by reason of said breach. This is the general rule and is supported by ample authority. … ‘The most familiar instance of the waiver of the forfeiture of a lease arises from the acceptance of rent by the landlord after condition broken, and it is a universal rule that if the landlord accepts rent from his tenant after full notice or knowledge of a breach of a covenant or condition in his lease for which a forfeiture might have been demanded, this constitutes a waiver of forfeiture which cannot afterward be asserted for that particular breach or any other breach which occurred prior to the acceptance of the rent. In other words, the acceptance by a landlord of the rents, with full knowledge of a breach in the conditions of the lease, and of all of the circumstances, is an affirmation by him that the contract of lease is still in force, and he is thereby estopped from setting up a breach in any of the conditions of the lease, and demanding a forfeiture thereof.’ ” (Kern Sunset Oil Co. v. Good Roads Oil Co. (1931) 214 Cal. 435, 440–441 [6 P.2d 71], internal citations omitted.)

“Here the lessor not only relied upon the express agreement in the contract of the lease against waiver of its right to assert a forfeiture for the acceptance of rent after knowledge of the breach of covenant prohibiting assignment of the lease without its written consent first obtained, but it also gave notice that its acceptance of the rent after the breach of covenant became known was not to be construed as a consent to the assignment of the lease or a waiver of its right to assert a forfeiture.” (Karbelnig v. Brothwell (1966) 244 Cal.App.2d 333, 342 [53 Cal.Rptr. 335].)

“The landlord had the obligation of going forward with the evidence in order to prove that the money orders were not negotiated or that it took other action to insure that there was no waiver. ‘Although a plaintiff ordinarily has the burden of proving every allegation of the complaint and a defendant of proving any affirmative defense, fairness and policy may sometimes require a different allocation. Where the evidence necessary to establish a fact essential to a claim lies peculiarly within the knowledge and competence of one of the parties, that party has the burden of going forward with the evidence on the issue although it is not the party asserting the claim.’ ” (EDC Assocs., supra, 153 Cal.App.3d at p. 171, internal citations omitted.)

“Waiver is a matter of intent. Here plaintiff, from the start, evidenced, not a willingness to waive—which would have kept the original lease in force at the contractual rent—but a willingness to lease the land encroached upon and, if that extended lease were arrived at, to continue the lease on the original parcel. We cannot impose on plaintiff a penalty for a reasonable effort to achieve an amicable adjustment of the breach.” (Thriftimart, Inc., supra, 123 Cal.App.3d at p. 754.)

“ ‘When the term of a lease expires but the lessee holds over without the owner’s consent, he becomes a tenant at sufferance. [Citation.] “Since the possession of the tenant at sufferance is wrongful, the owner may elect to regard the tenant as a trespasser … .” [Citation.] If instead the owner accepts rent from a tenant at sufferance he accepts the tenant’s possession as rightful and the tenancy is converted into a periodic one.’ ” (Kaufman, supra, 195 Cal.App.4th at p. 740.)

Secondary Sources

12 Witkin, Summary of California Law (11th ed. 2017) Real Property, § 696
2 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) § 10.60
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 6.31–6.37, 6.41, 6.42
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, § 210.64 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5, Unlawful Detainer, 5.21
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant: Eviction Actions, § 333.10 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, § 236.65 (Matthew Bender)
Miller & Starr, California Real Estate 4th, § 19:205 (Thomson Reuters)