Phil Querin Q&A: Rules for Acceptance of Partial Rent

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May 4, 2015
Phil Querin
MHCO Attorney
Querin Law

Question:  A resident paid partial rent in April and now has not paid the full May rent.  On the 72 hour notice does the manager include ALL the rent due, i.e. the balance of the unpaid rent for April plus all of May’s rent?

 

Answer:   ORS 90.417 (Duty to Pay Rent) provides as follows:

 

  • Effect of acceptance of partial rent:

 

  1. A tenant’s duty regarding rent payments is to tender to the landlord an offer of the full amount of rent owed within the time allowed by law and by the rental agreement;

 

  1. A landlord may refuse to accept a rent tender that is for less than the full amount of rent owed or that is untimely.

 

  1. A landlord may accept a partial payment of rent. The acceptance of a partial payment of rent does not constitute a waiver of the landlord’s right to terminate the tenancy for failure to pay all rent due so long as the landlord and tenant by written agreement provide that monthly rent shall be paid in regular installments of less than a month pursuant to a schedule specified in the agreement. Installment rent payments paid in this manner are not considered partial payment of rent.

 

  1.  However, if there is no such written agreement, the acceptance of a partial payment of rent waives the right of the landlord to terminate the tenant’s rental agreement for nonpayment of the balance rent unless:
    1. The landlord accepted the partial payment of rent before the landlord gave a nonpayment of rent termination notice based on the tenant’s agreement to pay the balance by a time certain and the tenant does not pay the balance of the rent as agreed;

(b) The landlord’s notice of termination is served no earlier than it would have been permitted under had no rent been accepted; and

(c) The 72-hour or 144-hour notice permits the tenant to avoid termination of the tenancy by paying the balance within 72 hours or 144 hours, as the case may be, or by any date to which the parties agreed, whichever is later; OR

(d)The landlord accepted a partial payment of rent after giving a 72-hour or 144-hour notice and entered into a written agreement with the tenant that the acceptance does not constitute waiver. This written agreement may provide that the landlord may terminate the rental agreement and take possession under the eviction statutes without serving a new notice of termination if the tenant fails to pay the balance of the rent by a time certain.

 

  • Note: Notwithstanding any acceptance of a partial payment under the written agreement arrangement above, the tenant continues to owe the landlord the unpaid balance of the rent.

 

Applying the above rules to your question, my response is as follows:

 

  • Although you had no legal duty to accept  the partial rent, you did accept it;
  • Since you apparently had no written agreement with the tenant at the time of the partial payment, you would have had to issue a 72-hour or 144-hour notice for the balance of April’s rent;
  • You did not issue that notice;
  • May’s rent is now due, together with the unpaid balance of April’s rent;
  • As noted above, ORS 90.417 provides that a tenant has a duty to tender to the landlord an the full amount of rent owed and acceptance of partial rent does not mean the tenant does not owe the landlord for the unpaid balance that remains;
  • In this case the full amount would be the remainder of April’s unpaid rent, plus May’s rent.
  • Caveat: Remember that if your rental or lease agreement provides that rent is due on the first day of the month, the earliest you can issue a 72-hour is the 8th day of the month.  If you issue a 144-hour notice, the earliest you could issue it is the 5th day of the month. Don’t issue your May notice before the applicable time!
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