Can you still collect rent if you serve a notice to quit?

[Daniel Lao]

Hi BP!

My rental property is currently being managed by a property manager. We currently have a tenant who is not cooperative (grinch-like) and hasn't been paying rent. This tenant is also a section 8 tenant and receives a portion of her rent from Section 8.  She hasn't been paying her portion of rent since October, but Section 8 has been paying their portion for the month of October, and November. 

My property manager says that the notice to quit (which is used to evict tenant) will be void if we collect rent for the month that the notice to quit is being served. 

Is this correct? I am confused because the tenant still owes us money and i'm unsure how collecting rent will void the notice to quit for the month.

Thank you!

[Craig Larrain]

Hey Daniel,

I am a landlord in NJ and have the same situation. In my case the tenants portions isn't that much but over time and with fees it added up. I looked the other way until the tenant became the 20% of my headaches so I decided to file against her for the portion she owed, late fees, and attorney fees.  So in NJ if you want to evict a tenant on a lease violation such as habitual lateness you would file a notice to cease first and after the second violation a notice to quit. Any subsequent violations and you file for eviction based on the lease violation. When sending these violation notices I have still collected rent and that doesn't impact my ability to evict. The other separate issue is suing for possession due to non payment of rent. In NJ you don't have to do any notices but just file for the non payment issue. This is what I have done in my case although I am still accepting the section 8 portion but will not accept any portion from her. The court would see this as agreeing to resolve the case with the tenant. If you have decided to be a landlord sometimes it pays to hire an attorney as you will receive an education (call it tuition) and can always know the correct way to handle a situation in the future. Hope this helps and good luck!

[Randall Alan]

Quote from @Daniel Lao:

Hi BP!

My rental property is currently being managed by a property manager. We currently have a tenant who is not cooperative (grinch-like) and hasn't been paying rent. This tenant is also a section 8 tenant and receives a portion of her rent from Section 8.  She hasn't been paying her portion of rent since October, but Section 8 has been paying their portion for the month of October, and November. 

My property manager says that the notice to quit (which is used to evict tenant) will be void if we collect rent for the month that the notice to quit is being served. 

Is this correct? I am confused because the tenant still owes us money and i'm unsure how collecting rent will void the notice to quit for the month.

Thank you!

 In Florida, your 3 day notice serves as a part of your eviction package stating how much you are owed.  If a tenant paid their entire balance and I was going to not evict them, I would go ahead and collect their rent and not pursue the court case.

But once you file your lawsuit (again, in Florida) you are no longer able to collect rent directly if you are going to proceed with your case.  The tenant must pay it to the court clerk and if the tenant pays in full, the judge can decide whether to proceed with the eviction.  You can petition the court to have the funds distributed to you if he dismisses the case.   Or if he evicts them you can still petition for whatever amount they paid to the court.  Be sure to include allowable court costs as well (filing fees, process server, etc)  

 If you take money in lieu of the court receiving it the judge will dismiss your case because you didn’t follow the proper procedure. 

Hope it helps.  Not sure of the rules in California though.

Randy 

[Daniel Lao]

Thank you for responding @Craig Larrain, @Randall Alan! 

One piece of information I forgot to add was that the lease has already expired in October 2022 (Denver, Colorado). I wouldn't want to evict the tenant but giving the issues and the tenant not paying it seems like the only way. Also thank you for the tip in accepting Section 8 Portion but not accepting the tenants rent portion. It sounds like we can't accept tenant rent portion this would be viewed as agreeing to resolve the case with the tenant. However, receiving section 8 rent portion may still be applicable here. 

[Kelly Sennholz]

If the lease is expired, why don't you just given notice to vacate? 

[Theresa Harris]

Why not talk to their case worker at section 8?  They may end up losing their section 8 money, but what do they expect if they aren't paying their part of the rent.

[Greg Weik]

@Daniel Lao, a few things

-Your PM is right in the sense of accepting rent while the 10 day notice clock is ticking, voids that particular 10 day notice.  If you want to accept the rent, you need to immediately re-deliver an updated 10 day notice. 

-Section 8 properties have specific rules to deal with non-paying tenants.  You need to reach out to the tenant's section 8 case manager first. 

-Best bet is what @Kelly Sennholz said - simply non-renew.  Your tenant is on a month-to-month lease, so give them notice and non-renew.  If they fail to vacate, it's probably going to be a much more straightforward eviction for failure to vacate, vs. partial rent paid/unpaid over time.  You do not need cause to end a lease (month-to-month or at the end of a long-term lease.) 

Good luck!