LAURENE H. YOUNG, RMP, REALTOR
Lui & Young Realty, Inc.
2011 President, Oahu Chapter
National Association of Residential Property Managers
Can you please explain if it is okay to accept partial payment from a residential tenant after a 5 business day eviction notice for nonpayment of rent has been issued. I gave my tenant notice that he owes me $2,300 and he mailed me a check for $500. I am unsure if I should cash it.
This is a frequent question for those going through with an eviction. It is all dependent on what is stated in your 5-day demand letter. Wouldn’t it be wonderful if all tenants paid in full on time, besides keeping the unit in excellent condition and never causing any problems? However, the reality is that many tenants cannot pay in full on the first of each month. They must pay in installments. If your tenant is one of those tenants who struggle to make rent payments each month but is otherwise a good tenant, you might accept partial payments each month. In this situation, you should still send a 5-day demand letter to protect yourself and remind your tenant that they do need to pay the rent in a timely manner. Communicate with the tenant to find out what the problem is, keep close track of all payments, and be sure that the problem doesn’t get worse. You should consider the likelihood that the tenant will come current with payments, and also take into consideration the time and costs involved for the eviction process and finding a new tenant.
There are other tenants who don’t seem to make good faith efforts to pay or are a month or more in arrears. In this situation, you should send a letter informing your tenant that you will proceed with the eviction unless they pay in full. You want to cut your losses by collecting as much rent as you can, but you need to have the correct verbiage in your notice to allow you to go to court to evict those tenants even if they pay partial rent. You also want to circumvent a situation where the tenant deposits minimal payments directly and regularly into your account (e.g., a couple of dollars a week), believing that they cannot then be evicted.
You should always send a 5-day demand letter for payments not received by the deadline stated on the lease. Your notice of lease termination for non-payment of rent should be in writing and should state that, unless payment is made in full within 5 business days of receipt of the notice, eviction proceedings will commence and the rental agreement will be terminated. Sample verbiage could also include, “Acceptance of a partial rent payment shall not constitute a waiver of any of Landlord’s rights available under this Lease, including, without limitation, the right to recover possession of the Premises.” (Please consult with your attorney for advice.) The notice should provide an accounting of how much rent is due and that you are attempting to collect a debt. The tenant should also be advised that once the eviction case has been sent to the attorney and filed in court, they will be responsible for all court costs and reasonable attorney fees. All adult tenants on the lease should be listed on the notice. You should also mail the notice to any co-signers or guarantors and to Section 8, if applicable. The notice should be sent via certified and regular mail, or posted across the door of the unit, if mailing is not possible.
If you do collect partial rent, when and if you do go to court you should have the current accounting of all rent and fees due. Remember that you may not lock the tenant out of the unit for failure to pay rent until you have the writ of possession. The landlord may not “hold for ransom” or keep or sell the tenant’s possessions in order to recover back rent. (Note: Abandoned property is another issue and not discussed in this article.)
If the tenant does pay in full within the 5 business days, he or she cannot be evicted for non-payment of rent. You also have the option of allowing the tenant to stay, even if you have been granted possession of the unit from the court.
Answers to questions in Landlord Tenant Q&A are provided by members of the Oahu Chapter of the National Association of Residential Property Managers (NARPM), an organization that supports the professional and ethical prac-tices of rental home management through networking, education, and certification. The Oahu Chapter, founded in 2004, has become the largest in the nation with 175 registered members.
Disclaimer: The answers provided in this column by Realtors address individual cases and should not be construed as interpretations of the law. For specific information on Hawaii State Law, go to http://hawaii.gov/dcca/areas/ocp/landlord_tenant or contact an attorney.