CACI 4327 Affirmative Defense—Landlord’s Refusal of Rent

California Civil Jury Instructions CACI

4327 Affirmative Defense—Landlord’s Refusal of Rent

[Name of defendant] claims that [name of plaintiff] is not entitled to evict [him/her/nonbinary pronoun/it] because [name of plaintiff] refused to accept [name of defendant]’s payment of the rent. To succeed on this defense, [name of defendant] must prove:

1.That after service of the three-day notice but before the three-day period had expired, [name of defendant] presented the full amount of rent that was due to [name of plaintiff]; and

2.That [name of plaintiff] refused to accept the payment.

[Giving a check constitutes payment if [name of plaintiff]’s practice was to accept payment by check unless [name of plaintiff] had previously notified [name of defendant] that payment by check was no longer acceptable.]

Directions for Use

Give the last bracketed paragraph if the tender was by check and there is an issue as to the landlord’s motive in refusing the check.

Sources and Authority

Debtor’s Deposit of Amount of Debt. Civil Code section 1500.

“The mere giving of a check or checks does not constitute payment.” (Mau v. Hollywood Commercial Bldgs., Inc. (1961) 194 Cal.App.2d 459, 470 [15 Cal.Rptr. 181], internal citation omitted.)

“On this appeal appellants do not discuss or mention the above finding of their bad faith, but argue that respondent was in default because its rental debt was not extinguished within the three-day period as respondent tendered checks instead of money, sent the checks by mail without checking delivery instead of making personal tender and did not keep the tender alive by deposit in a bank as provided by section 1500 of the Civil Code within the three-day period. However, we think that the finding of bad faith, which is supported by the evidence showing the facts, as stated hereinbefore, is of primary importance where appellants try to enforce a forfeiture.” (Strom v. Union Oil Co. (1948) 88 Cal.App.2d 78, 81 [198 P.2d 347].)

“With respect to appellants there is no doubt that they could have had timely payment if they had so desired, but that they were intentionally evasive and uncooperative, hoping thereby to induce some technical shortcoming on which to terminate a lease which they thought disadvantageous.” (Strom, supra, 88 Cal.App.2d at pp. 83–84.)

“Appellants complain that respondent mailed checks for the rent instead of tendering money in person. The lease does not contain any place or mode of payment of rent. Payment of rent to the original lessor had been made by mailing of checks to his assignee. Appellant was entitled to continue payment by mailing of checks so long as he had not been notified that this form of payment was no longer acceptable. … If the payment by mailing of check, a normal mode of payment though not a legal tender, was not acceptable to appellants, as it had been to their predecessors, they should have notified respondent to that effect. Neither was respondent after the mailing under duty to take special measures to check timely receipt of the checks. ‘The ordinary principles of reason, common sense, and justice should govern in questions of this kind. The lessee, in law, had a right to assume that the Post [O]ffice Department would do its duty and deliver the envelop[e] containing the rent in due time, and that the lessor would, in justice, accept such rent; and if for any reason it was not received or delivered the lessee should, as a matter of ordinary fairness and justice, be advised of such fact and have a chance to remedy the same.’ This principle was held applicable even where the letter containing the rent was lost in the mail. It must govern a fortiori here, where the mail functioned correctly and the fact that the checks did not reach appellants was solely attributable to circumstances for which they were responsible. No further action of any kind could be expected from respondent until it was informed, by the return of the unclaimed letter, of the fact that the payment had not been effectuated. If respondent’s action is open to any criticism it would be that the deposit of the rent in a bank … did not follow soon enough after the checks were returned … . However the delay did not cause any prejudice or make any difference to appellants as they had then already launched the action in unlawful detainer at which they had been aiming ever since respondent refused increase of rent. The shortcoming of respondent is trivial compared to appellants’ bad faith.” (Strom, supra, 88 Cal.App.2d at p. 84.)

“Nor does the rejection of the ‘tender’ that appellants made by letter, unaccompanied by payment, and conditioned upon dismissal of the action, after the action was brought, compel a finding of bad faith. It did not extinguish the debt, since the procedure prescribed by Civil Code, section 1500, was not followed. Nor was there a showing of continuous readiness to pay after the tender.” (Budaeff v. Huber (1961) 194 Cal.App.2d 12, 21 [14 Cal.Rptr. 729].)

Secondary Sources

12 Witkin, Summary of California Law (11th ed. 2017) Real Property, § 797
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 7.53–7.56
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) § 17.21
3 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, § 210.22 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5, Unlawful Detainer, 5.21