In the commercial lease context there is generally a greater ability for the landlord to accept payment of rent or less than the full amount of rent and still be able to proceed with the unlawful detainer. The landlord can still pursue the tenant for any deficiency in rent. However, where the landlord accepts the payment of rent despite another breach of the lease the acceptance of rent may be construed as a waiver.
Indeed, as a general rule, the landlord’s acceptance of rent after the landlord’s knowledge of a tenant’s breach, without objection or protest, constitutes a waiver of the tenant’s breach. Kern Sunset Oil. Co. v. Good Roads Oil Co., (1931) 214 435, 440-441 (Internally quoting: “In other words, the acceptance by a landlord of the rents, with full knowledge of a breach in the conditions of the lease, and of all the circumstances, is an affirmation by him that the contract of lease is still inforce, and he is thereby estopped from setting up a breach in any of the conditions of the lease, and demanding a forfeiture thereof”). To avoid waiver, the landlord must take some actions that evidence an intent not to waive the breach, such as a return of the rent checks or a notice to the tenant that the landlord does not waive the tenant’s default. EDC Associaties Ltd. V. Gutierrez 153 Cal.App. 3d 167, 170 (1984) (“the cases have required some positive evidence of rejection on the landlord’s part or a specific reservation of rights in the lease to overcome the presumption that tender and acceptance of rent creates.” Citing Karbelnig v. Brothwell (1966) 244 Cal.App. 2d 333.)
Most commercial leases avoid this waiver problem with the use of somewhat standard anti-waiver provisions in the lease which would allow the landlord to accept rent and to still to consider the tenant to be in breach or in default under the lease.
For help with your commercial unlawful detainer and for a free consultation on a commercial unlawful detainer, contact Schorr Law’s commercial unlawful detainer attorneys at 310-954-1877, firstname.lastname@example.org or at www.schorr-law.com.