One of the defenses that California tenants often raise when a landlord files an unlawful detainer (eviction) case is known as “waiver” and “estoppel.” The difference between waiver and estoppel is not entirely clear. In the court case of DRG/Beverly Hills, Ltd. v Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 CA4th 54, the court said waiver by one party does not require an act by the other party, whereby estoppel requires that the other party rely on the conduct and become injured because of it.
One example of a landlord waiving his rights is when he accepts rent from a tenant after the landlord knows that the tenant is violating a term of the rental agreement. For example, if there is a no-smoking clause in the lease, and the landlord knows the tenant is smoking, but takes no action to stop it, and at the same time, keeps accepting monthly rent from the tenant, an argument can be made by the tenant that the landlord waived his right to enforce the no smoking clause in the rental agreement. Another example of landlord waiver is when the landlord accepts rent after expiration of the 3 day notice to pay or quit. Therefore, it is very important for the landlord to take immediate documentable steps to enforce his or her rights as soon as the landlord becomes aware of a breach.
A best practice for landlords in order to avoid a tenant from winning the case because of waiver or estoppel would be to keep good written records and if a landlord notices that the tenant is not doing what they are supposed to be doing with respect to the rental property, take action immediately. The landlord should not “sit on his hands and do nothing.” By doing nothing, the landlord is giving the tenant a better chance of winning an eviction case based on waiver or estoppel if a landlord later tries to evict a tenant due to the same issue.
The Law Office of David Piotrowski can assist landlords with drafting and serving an unlawful detainer eviction action on a tenant. If you need help with an eviction in California, contact us today. We represent landlords only with eviction cases.
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