California landlords must not accept rent after the 3 day notice to pay rent or quit expires. Landlords often approach me after having served their own 3 day notice to pay rent or quit. Not only does the notice often have errors, but the landlord then goes on to tell me that the tenant paid partial rent during or after the 3 day notice expired, an the landlord accepted that rent. This is a big mistake.
Unless a landlord does not wish to proceed and file an unlawful detainer (eviction) case against their tenant, the landlord should never accept rent after the 3 day notice to pay rent or quit expires. The tenant has an affirmative defense to a residential eviction case that is based on non-payment of rent if the landlord accepts rent after the three day notice period expires. The acceptance of rent after the 3 day notice period expires effectively waives the tenant’s breach and creates a new tenancy.
Civil Code 1945 states:
If a lessee of real property remains in possession thereof after the expiration of the hiring, and the lessor accepts rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding one month when the rent is payable monthly, nor in any case one year.
Furthermore, the form “Answer” that tenants use to fight an eviction case states as an affirmative defense:
Plaintiff accepted rent from defendant to cover a period of time after the date the notice to quit expired.
In short, landlords should NOT accept rent from a tenant after the 3 day notice to pay rent or quit expires. To do so creates several problems for the landlord and the landlord is likely to lose the eviction case and have to start over again from the beginning.