Just Because I Accepted Partial Rent Payments, Doesn't Mean That I Won't Evict You!

There’s one remaining lease clause to discuss that is usually included in all landlord leases and that’s the “anti-waiver” clause.  Below is an example of an actual lease clause used by a large East Bay property owner.

"The waiver of either party of any breach shall not be construed to be a continuing waiver of any subsequent breach.  The receipt by Owner of the rent with the knowledge of any violation of a covenant or condition hereto shall not be deemed a waiver of such breach.  No waiver by either party of the provisions herein shall be deemed to have been made unless expressed in writing and signed by all parties to this Rental Agreement."

Here’s where the anti-waiver clause may come into play. Let’s say that you had a job loss and could only make a partial payment of rent on time, and the remaining rent in two-weeks. You call your landlord and explain the situation and how you are going to handle rent payments while you are seeking new employment. Your landlord orally agrees, this time only, to accept a partial payment.

During the next month, you are on unemployment. You family is squeezed for cash and can cover some, but not all of your rent, and your savings are quickly being depleted. You pay the rent late and your landlord charges late fees and threatens that, if rent is paid late next month, he or she may begin eviction proceedings.

You argue that your Landlord accepted partial payments of rent last month and no late charges were paid. You are trying your best to pay the rent. Your landlord can point to the anti-waiver clause in the lease agreement and say, “Just because I accepted partial rent payments doesn’t mean that I waived my rights to your failure [e.g. your breach] to pay rent on time.  Look at your lease!  See the waiver clause?”

A breach occurs when a party to the lease agreement fails to uphold one or more covenants (promises) in the lease.  Here, you agreed to pay the rent on time.  Your failure to pay the entire rent on time is a breach.

So, look at your current lease agreement or the one that you plan to sign.  Does it have an anti-waiver clause?  If it does, be careful about breaking any lease promises.

Finally, any lease clause (e.g. paragraph) in which a tenant waives their statutory rights (e.g. rights under California law), is void under Cal. Civ. Code section 1953. 

Lease clauses that contradict Cal. Civ. Code sections 1950.5 (security deposit), 1954 (notice of property inspection by landlord), 1942.1 (right to habitable premises) and 1942.5 (prohibition against landlord retaliation for reporting your landlord to the rent board, building inspection, fire inspection, or to the court) can be overturned in court as illegal lease clauses.