Updated on October 10, 2023
If you give a your tenant a 60-day notice to terminate their tenancy, can you still collect rent during that 60-day period? In this post we touch upon the options landlords have when they decide to end a lease with their tenant, and discuss whether or not it is a good idea to collect rent during that time period.
As a general matter, a real property lease may be terminated by any number of events. One of the ways to terminate a periodic tenancy, such as a month-to-month tenancy, is to serve a sixty day notice to terminate a tenancy. However, before you do so, if you are seeking to terminate a residential tenancy, it is important to ensure you comply with any tenant protection or rent control rules that may limit your ability to do so.
Assuming you are entitled to terminate a month-to-month tenancy via a sixty day notice to terminate, one issue that often comes up is whether you can still collect rent during the sixty day period.
This is because, generally speaking, landlords are advised against accepting rent when they are in the process of evicting a tenant because a landlord’s acceptance of rent could potentially operate to create a month to month tenancy once a tenancy has expired by operation of law.
For example, if a landlord serves a 3 day notice to pay rent or quit, and the tenant fails to timely pay rent before the notice expires, it is very important that the landlord does not accept rent thereafter as that could be deemed to create a new month to month tenancy.
Similarly, if the landlord intends to evict a tenant that holds over after the expiration of a fixed term, the landlord should not accept rent as that could also be construed to create a month to month tenancy.
However, in a situation where a sixty day notice is pending, the tenant is entitled to possession during that sixty day period.
Accordingly, it is usually acceptable for the landlord to accept rent during that sixty day period as long as they do so before expiration of the 60-day notice. Nonetheless, there is a gray area with respect to rent that was intended to cover time after the 60-day notice expired.
In that scenario, one option would be to return the prorated excess rent paid. Another option would be to reject the payment and request the tenant to pay the prorated amount.
But, if the priority is to ensure you can recover possession, the most conservative route may be to reject any payment of rent that would cover any period after the notice expires and, instead, deduct that amount from the security deposit to the extent permitted.
Schorr Law, APC has experience with all types of issues arising out of terminating a tenancy.
To inquire about scheduling a consultation with one of our California real estate attorneys regarding tenancy termination, give us a call today at (310) 954-1877. You can also contact us via text at (310) 706-2265, or send us a message here