CACI No. 4324. Affirmative Defense - Waiver by Acceptance of Rent

Judicial Council of California Civil Jury Instructions (2023 edition)

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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/nonbinary pronoun/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

eviction.]

If [name of defendant] has proven that [he/she/nonbinary pronoun/it] paid

rent, then [he/she/nonbinary pronoun/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/nonbinary

pronoun/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/nonbinary pronoun/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

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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 Thriftimart, 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

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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.” (Thriftimart, 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 (11th ed. 2017) Real Property, § 696

2 California 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, 6.42

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 4th, § 19:205 (Thomson Reuters)

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Page last reviewed May 2023