Q: How do i get around the non waiver clause in my residential lease in california
My landlord has filed an unlawful detainer. I paid half of my rent but when i went to pay the other half i was blocked. I told her on the 8th that i would pay the rest on the 20th. She told me that she would check with the owners to see if that was ok. I never heard anything from her until i went to pay on the 20th and she told me that the owners have elected to follow through with the notice delivered on the 8th( 3 day pay or quit). Historically i have been allowed to pay late. Even after being served with a notice. Usually they dont follow through with it. Even if i pay after it has expired. It seems to me that they should have let me know this time that it wasnt going to be the same as before and i feel that i should have been given notice that they were not going to accept the second half of my rent. The problem im having a hard time with is there is an anti waiver stilulation in my lease agreement. How do i get around this?
A:
I understand your frustration with the situation, but it's important to note that getting around a non-waiver clause in a residential lease can be challenging. A non-waiver clause typically states that even if the landlord accepts late rent or doesn't enforce certain lease terms, it doesn't mean they have waived their right to enforce the terms in the future.
However, you may have a few options to explore:
1. Habituality: If you can demonstrate that the landlord has consistently accepted late payments without enforcing the lease terms, you might argue that a habitual pattern has been established. This could potentially override the non-waiver clause.
2. Estoppel: If you can show that you reasonably relied on the landlord's past behavior of accepting late payments and that you suffered a detriment as a result (e.g., you didn't seek alternative housing because you believed late payment was okay), you might have a case for estoppel.
3. Waiver by conduct: If the landlord's actions or communications led you to believe that late payment was acceptable, you could argue that they waived the right to enforce the lease terms in this instance.
4. Negotiate with the landlord: Try to discuss the situation with your landlord and see if you can reach a compromise or payment plan.
It's crucial to note that these arguments can be complex and may not always succeed in court. Your best course of action would be to consult with a local tenant rights attorney who can assess your case's specific details and provide guidance on how to proceed. They can also help you understand your rights and obligations under California's landlord-tenant laws.
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