A. 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 Presidential Park Apts. v. Colston (1980), 17 Ohio Op. 3d 220, 221, Pace v. Buck (1949), 86 Ohio App. 25, and Schmidt v. Hummell (1947), 81 Ohio App. 167, 36 Ohio Op. 485, 73 N.E.2d 806.
But many landlords, while accepting the rent checks or money orders will simply not cash them until they find out the disposition of the eviction action. If pressed on the subject in Court they will offer up the un-cashed instruments and argue that their failure to cash them constituted non-acceptance.
But in the case of Cipolla v. Waters 1998 Ohio App. LEXIS 5851 Lorain App. No. 97 CA 006866, unreported, the Court of Appeals for the Ninth Appellate District held as follows:
However, as stated in Pace, supra, at 28 if the landlord merely holds a money order sent by the tenant for evidentiary purposes, such conduct does not constitute an acceptance of the rent payment, if the landlord asserts, and communicates the assertion, that the money order is and will not be accepted in payment of rent. Pillot v. Moss (1943), 72 Ohio App. 492, 495, 53 N.E.2d 73; Wilcke v. Smith (1946), 34 Ohio Op. 255, 257, 68 N.E.2d 386; Hile v. Besecker (1947), 82 Ohio App. 301, 306-07, 79 N.E.2d 582.
Thus if the landlord does not inform the tenant that the rent is not being accepted, then he will be deemed to have accepted it. Not cashing the instrument is not a defense to acceptance. Such acceptance of future rent waives the three day notice to vacate that is a requisite component of every eviction action.
What if I have accepted partial or full rent from a tenant while an eviction action is pending?
If you want to proceed with the eviction action, I recommend returning the rent to the tenant and indicating in writing that you are not accepting the rent and are going to proceed with the eviction action. Accepting a partial or full payment of rent may give the tenant a defense to an eviction action based on nonpayment of rent. It may also provide a defense to eviction actions based on other lease violations. If your court date is rapidly approaching, you may want to inform the tenant in writing that you will be returning the rental payment at the court hearing as you do not have enough time to mail the payment back. If you have held the payment for a significant length of time, the tenant may argue that your failure to return the payment within a reasonable amount of time constitutes acceptance of the payment.
Another option (if the payment is significant enough) is to indicate to the tenant that if he/she can pay the balance of the rent owed at or before the eviction hearing then you will accept the initial payment. You could also agree to postpone the hearing if the tenant needs an additional week or two to come up with the rent balance. Another option is to enter into a written payment agreement which becomes the court’s judgment and thus is enforceable through the court system. You would indicate to the tenant that the initial payment received would constitute the first payment under the written payment agreement. You would tell the tenant that the parties would need to agree to future payment amounts and payment dates and that if the tenant failed to make the payment, such failure would result in an eviction without need for another eviction hearing. With all of these options, you would indicate to the tenant that if no agreement were reached, you would be refusing and returning the initial payment at the hearing.