California Civil Jury Instructions (CACI) (2017)

4324. Affirmative Defense—Waiver by Acceptance of Rent

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4324.Affirmative Defense—Waiver by Acceptance of Rent
[Name of defendant] claims that [name of plaintiff] is not entitled to evict
[him/her/it] because [name of plaintiff] accepted payment of rent [after
the three-day notice period had expired/[name of defendant] had violated
the [lease/rental agreement]]. To succeed on this defense, [name of
defendant] must prove:
[1]. That [name of plaintiff] accepted a [partial] payment of rent after
[the three-day notice period had expired/[name of plaintiff] knew
that [name of defendant] had violated the [lease/rental
agreement]] [./; and]
[2.That [name of plaintiff] failed to provide actual notice to [name of
defendant] that partial payment would be insufficient to avoid
If [name of defendant] has proven that [he/she/it] paid rent, then [he/she/
it] has the right to continue occupying the property unless [name of
plaintiff] proves [one of the following:]
[1.That even though [name of plaintiff] received [name of
defendant]’s [specify noncash form of payment, e.g., check], [he/she/
it] rejected the rent payment because [e.g., it never cashed the
check]][./; or]
[2.That the lease contained a provision stating that acceptance of
[late rent/rent after knowing of a violation of the [lease/rental
agreement]] would not affect [his/her/its] right to evict [name of
defendant]][./; or]
[3.That [name of plaintiff] clearly and continuously objected to the
violation of the [lease/rental agreement].]
New August 2007; Revised April 2008, June 2010, December 2011
Directions for Use
The affirmative defense in this instruction applies to an unlawful detainer for
nonpayment of rent or breach of another condition of the lease if either the
landlord accepts a rent payment after the three-day period to cure or quit has
expired or the landlord waived a breach of a condition by accepting rent after the
breach and then subsequently served a notice of forfeiture and filed an unlawful
detainer. Acceptance of rent may also be a defense to an unlawful detainer if the
tenant remains in possession after the expiration of the terms of the lease. (See Civ.
Code, § 1945; Kaufman v. Goldman (2011) 195 Cal.App.4th 734, 740 [124
Cal.Rptr.3d 555].) This defense is available for breach of a covenant prohibiting a
sublease or assignment only if the landlord received written notice of the sublease
or assignment from the tenant and accepted rent thereafter. (See Civ. Code,
§ 1954.53(d)(4).)
With regard to the tenant-defendant’s burden, include the word “partial” in element
1 and read element 2 only in cases involving commercial tenancies and partial
payment. (Code Civ. Proc., § 1161.1(c).)
With regard to the landlord plaintiff’s burden, give option 3 if there is evidence that
the landlord at all times made it clear that acceptance of rent was not a waiver of
the breach. (See Thriftmart, Inc. v. Me & Tex (1981) 123 Cal.App.3d 751, 754 [177
Cal.Rptr. 24] [accepting rent for five years was not a waiver].)
Sources and Authority
• Commercial Tenancy: Acceptance of Partial Payment Not Waiver. Code of Civil
Procedure section 1161.1(c).
• Acceptance of Rent After Expiration of Term. Civil Code section 1945.
• When Acceptance of Rent Is Not Waiver. Civil Code section 1954.53(d)(4).
• “It is a general rule that the right of a lessor to declare a forfeiture of the lease
arising from some breach by the lessee is waived when the lessor, with
knowledge of the breach, accepts the rent specified in the lease. While waiver is
a question of intent, 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.” (EDC Assocs. v.
Gutierrez (1984) 153 Cal.App.3d 167, 170 [200 Cal.Rptr. 333], internal
citations omitted.)
• “The acceptance of rent by the landlord from the tenant, after the breach of a
condition of the lease, with full knowledge of all the facts, is a waiver of the
breach and precludes the landlord from declaring a forfeiture of the lease by
reason of said breach. This is the general rule and is supported by ample
authority. . . . ‘The most familiar instance of the waiver of the forfeiture of a
lease arises from the acceptance of rent by the landlord after condition broken,
and it is a universal rule that if the landlord accepts rent from his tenant after
full notice or knowledge of a breach of a covenant or condition in his lease for
which a forfeiture might have been demanded, this constitutes a waiver of
forfeiture which cannot afterward be asserted for that particular breach or any
other breach which occurred prior to the acceptance of the rent. 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 of the circumstances, is an affirmation by
him that the contract of lease is still in force, and he is thereby estopped from
setting up a breach in any of the conditions of the lease, and demanding a
forfeiture thereof.’ ” (Kern Sunset Oil Co. v. Good Roads Oil Co. (1931) 214
Cal. 435, 440–441 [6 P.2d 71], internal citations omitted.)
• “Here the lessor not only relied upon the express agreement in the contract of
the lease against waiver of its right to assert a forfeiture for the acceptance of
rent after knowledge of the breach of covenant prohibiting assignment of the
lease without its written consent first obtained, but it also gave notice that its
acceptance of the rent after the breach of covenant became known was not to
be construed as a consent to the assignment of the lease or a waiver of its right
to assert a forfeiture.” (Karbelnig v. Brothwell (1966) 244 Cal.App.2d 333, 342
[53 Cal.Rptr. 335].)
• “The landlord had the obligation of going forward with the evidence in order to
prove that the money orders were not negotiated or that it took other action to
insure that there was no waiver. ‘Although a plaintiff ordinarily has the burden
of proving every allegation of the complaint and a defendant of proving any
affirmative defense, fairness and policy may sometimes require a different
allocation. Where the evidence necessary to establish a fact essential to a claim
lies peculiarly within the knowledge and competence of one of the parties, that
party has the burden of going forward with the evidence on the issue although
it is not the party asserting the claim.’ ” (EDC Assocs., supra, 153 Cal.App.3d
at p. 171, internal citations omitted.)
• “Waiver is a matter of intent. Here plaintiff, from the start, evidenced, not a
willingness to waive—which would have kept the original lease in force at the
contractual rent—but a willingness to lease the land encroached upon and, if
that extended lease were arrived at, to continue the lease on the original parcel.
We cannot impose on plaintiff a penalty for a reasonable effort to achieve an
amicable adjustment of the breach.” (Thriftmart, Inc., supra, 123 Cal.App.3d at
p. 754.)
• “ ‘When the term of a lease expires but the lessee holds over without the
owner’s consent, he becomes a tenant at sufferance. [Citation.] “Since the
possession of the tenant at sufferance is wrongful, the owner may elect to
regard the tenant as a trespasser . . . .” [Citation.] If instead the owner accepts
rent from a tenant at sufferance he accepts the tenant’s possession as rightful
and the tenancy is converted into a periodic one.’ ” (Kaufman, supra, 195
Cal.App.4th at p. 740.)
Secondary Sources
12 Witkin, Summary of California Law (10th ed. 2006) Real Property, § 669
2California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) § 10.60
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 6.31–6.37, 6.41,
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, § 210.64
(Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.21
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.10 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, § 236.65
(Matthew Bender)
Miller & Starr, California Real Estate, Ch. 19, Landlord-Tenant, § 19:205
(Thomson Reuters)