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I am often asked whether a landlord should accept rent from a tenant after starting an eviction against that tenant. The short answer is no, probably not – unless the landlord has language in their lease that allows the landlord to proceed with an eviction even if the tenant makes a partial payment.

By accepting a partial payment when the landlord knows that the tenant actually owes more or has violated the lease in other ways, the landlord waives the right to bring an eviction against that tenant for those reasons.  The "magic language" that needs to be included in a lease for the landlord to accept a partial payment is found in Minn. Stat. 504B.281, subd. 1 (C):

partial payment of rent in arrears which is accepted by the landlord prior to issuance of the order granting restitution of the premises pursuant to section 504B.345 may be applied to the balance due and does not waive the landlord's action to recover possession of the premises for nonpayment of rent.
The above language should be included in every lease, so that the landlord cannot bring an eviction action, even if the landlord accepts partial payment. If the above language is not included in the lease and the landlord accepts a partial payment, then a judge is likely to dismiss the eviction and award the tenant $200 in costs pursuant to Minn. Stat. 549.02, subd. 1. This means that the landlord will have to pay $200 to the tenant if the eviction is dismissed.  As such, a landlord should not accept a partial payment unless the "magic language" is in the lease.

After the landlord starts an eviction against a tenant for nonpayment of rent or for any other reason, the landlord should not accept partial payment. Indeed, the landlord should only accept payment in full of the amounts owing, plus the filing fee and the cost of service. Failure to do so risks dismissal of the eviction, and a judgment against the landlord in favor of the tenant for $200 in costs.

The question becomes what should the landlord do with a partial payment, whether that payment is made by way of cashier's check, money order, personal check, or cash? The answer is that the landlord must return the partial payment to the tenant. I would recommend that the landlord enclose a letter to the tenant stating that the landlord cannot accept partial payment, can only accept payment in full, and provide the total amount due and owing. If the tenant makes a partial payment by way of cash, the landlord has to give the tenant a receipt for the cash, return it in the same way (although I would recommend returning it personally to the tenant), and get a receipt from the tenant that the cash has been returned. Getting a receipt will avoid the key-said she-said in court.

Every landlord – tenant situation is unique, and I recommend that landlords talk to an attorney experienced in evictions and landlord tenant law before taking action based on this blog post.  To that end, I invite landlords to give me a call at 763-450-9494 to discuss their unique situation. The first thing I will ask you is what you want to have happen because, ultimately, the landlord is in control. I have represented many landlords, but typically do not represent tenants.

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Tim is licensed to practice law only in Minnesota, and the information contained in this blog post may not apply to jurisdictions outside of Minnesota.  Further, reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  You should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation.
 


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