To Accept Late Rent, or Not to Accept Late Rent, That Is the Question . . .

Buckingham Attorney Matthew R. Duncan offers this sage advice to Ohio landlords deciding whether or not they can accept late rent payments from a tenant:

One question that often arises in the course of a landlord evicting a tenant for nonpayment of rent is whether or not the landlord should accept past-due rent after posting or delivering a three-day eviction notice to the tenant. Under Ohio law, past-due rent may be accepted after posting a three-day notice, but accepting any rent for periods accruing after the three-day notice is posted would require restarting the eviction process.

Under Ohio Revised Code (Section 1923.04), a landlord wishing to begin an eviction proceeding against a tenant must serve the tenant with an eviction notice three or more business days before beginning the action, by certified mail, return receipt requested, handing a written copy of the notice to the defendant in person, or by leaving it at the defendant’s usual place of residence, or at the premises where he or she is sought to be evicted.

Every notice given under this statute by a landlord to recover residential premises must contain the following language printed or written in a conspicuous manner:

You are being asked to leave the premises. If you do not leave, an eviction action may be initiated against you. If you are in doubt regarding your legal rights and obligations as a tenant, it is recommended that you seek legal assistance.

In most circumstances, it is also suggested to use this notice for commercial property. It is also advisable to have an attorney review your lease before serving such a notice, because depending upon the term of the lease and language contained in the lease, a landlord might be required to provide additional notice before beginning an eviction action. Once a notice has been given, the landlord may proceed with filing an eviction proceeding, called a “forcible entry and detainer action” in court.

The general rule in Ohio is that acceptance of future rental payments by the landlord after serving a three-day notice waives the notice and requires the landlord to begin the eviction process over again at a time when rent is unpaid. (See King v.Dolton (9th Dist. Wayne Co. 2003), 2003-Ohio-2423.) However, while it is a waiver of the three-day notice to accept payment of rent for a time period that takes place after the three-day notice is posted, it is not a waiver to accept past-due rent from the period before the three-day notice was posted. See, Presidential Park Apt. v. Colston (10th Dist., Franklin County 1980), 17 Ohio Op.3d 220. As the Franklin County Court of Common Pleas explained in the Colston case: “A tenant in occupancy defending such an [eviction] action is liable for rent during the pendency of the suit, and 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 Pace v. Buck (1949), 86 Ohio App. 25, 85 N.E.2d 401 and Schmidt v. Hummell (1947), 81 Ohio App. 167, 73 N.E.2d 806.)

Based upon this rule, payment of past-due rent from before a three-day notice was posted would not be considered a waiver by the landlord under Ohio law, but if payment is accepted for any rent accruing after the three-day notice is posted, it would constitute a waiver. For example, if a notice was posted December 5 and a landlord then accepted rental payments accruing up to December 4, it would not be a waiver. If the landlord accepted payment for rents accruing from December 5 and beyond it would be a waiver of the notice and the landlord would need to re-post the three-day notice after the tenant missed another rental payment. If there is any uncertainty or ambiguity whether rent offered is for periods before or after posting a three-day notice, a landlord should not accept the rent if he or she wishes to go forward with a forcible entry and detainer action in court.