Accepting Rent after Posting a 3 Day Eviction Notice

Q. Can a landlord accept rent checks or money orders from tenants after he has posted a three day notice of eviction and still maintain the eviction?

A. The landlord may accept rent paid for liability already incurred without acting inconsistently with the notice to vacate. But, by accepting future rent payments, the landlord has waived the three-day notice since such acceptance is inconsistent with the landlord's notice to vacate. See Presidential Park Apts. v. Colston (1980), 17 Ohio Op. 3d 220, 221, Pace v. Buck (1949), 86 Ohio App. 25, and Schmidt v. Hummell (1947), 81 Ohio App. 167, 36 Ohio Op. 485, 73 N.E.2d 806.

But many landlords, while accepting the rent checks or money orders will simply not cash them until they find out the disposition of the eviction action. If pressed on the subject in Court they will offer up the uncashed instruments and argue that their failure to cash them constituted non-acceptance.

But in the case of Cipolla v. Waters 1998 Ohio App. LEXIS 5851 Lorain App. No. 97 CA 006866, unreported, the Court of Appeals for the Ninth Appellate District held as follows:

However, as stated in Pace, supra, at 28 if the landlord merely holds a money order sent by the tenant for evidentiary purposes, such conduct does not constitute an acceptance of the rent payment, if the landlord asserts, and communicates the assertion, that the money order is and will not be accepted in payment of rent. Pillot v. Moss (1943), 72 Ohio App. 492, 495, 53 N.E.2d 73; Wilcke v. Smith (1946), 34 Ohio Op. 255, 257, 68 N.E.2d 386; Hile v. Besecker (1947), 82 Ohio App. 301, 306-07, 79 N.E.2d 582.

Thus if the landlord does not inform the tenant that the rent is not being accepted, then he will be deemed to have accepted it. Not cashing the instrument is not a defense to acceptance. Such acceptance of future rent waives the three day notice to vacate that is a requisite component of every eviction action.

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