COVID-19 Crisis

Phil Querin Q&A - Extending 30 Day Notices During Court Closing

Question:  We need clarification on 30- day notices.  Assuming courts are closed for longer than 2 weeks - this could become 2 months. What should a landlord do who has a tenant  problem that warrants issuance of a 30-day notice?  If the landlord gives a 30-day notice now, he/she has two possible choices: (a) Accept no rent for the second month the 30-day notice spans; or (b) or accept only a portion of the second month’s rent prorated through the last day of the “Deadline” (i.e. the last day in the Notice for the tenant to cure the default). Is there a way around this, so the landlord can collect the entire month’s rent for the second month?


Answer. Accepting rent for the period beyond the Deadline means that the tenant is entitled to occupy the space even after the failure to cure within the 30-day cure period. Yet the failure to cure is the event after which the landlord may file for eviction; the tenant has no legal right to remain on the space. Accepting rent for that period creates a waiver of the right to treat the failure to cure as a default upon which the eviction may be filed.


There are perhaps three ways to prevent that from happening, so that a landlord may receive rent for the entirety of the second month, notwithstanding the fact that it covers a period beyond the Deadline.


1. The preferred way in my opinion, is to extend the cure period in the notice. When it is issued, extend the 30-day cure period so that it goes through the 30thor 31stday (as applicable) of the second month.


EXAMPLE:If a 30-day notice is mailed on March 19, normally, the time to cure would end 33 days hence, i.e. starting with March 20 being the first day, and ending at midnight April 21stas the end of the cure period. In that case, the landlord can either take no rentfor April or take rent proratedthrough the 21 days of April. 


But if the cure period in the notice is extended through April, and ends  at midnight (end of day) on April 30ththe L could accept rent for the entire month of April. If the tenant pays the rent for April andcures the violation by April 30, the problem has gone away.  


Of course, there still is a problem if the tenant does not cure and does not pay any rent, if the courts are still closed and no eviction (either for the failure to cure, or failure to pay after issuance of a 72-hour notice) can be filed.


2. Another alternative is to unilaterally extend (in writing) the cure period for another 30 or 31 days on condition rent was paid, to span the following month. Can a landlord do that? In my opinion yes – it does not reduce a tenant right, but expands it. Of course, a judge could see it differently.


3. Lastly, the landlord can try to enter into a written agreement with the tenant (after issuance of the 30-day notice) that acceptance of rent for the balance of the second month shall not be construed as a waiver. But what’s in it for the tenant?


The only time this seems feasible is where the tenant is cooperative about curing within the 30 days, and agrees in writing that if landlord accepts the full rent for the second month it will not constitute a waiver.

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