Last updated: September 2006

The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "Q&A: The Law," runs in the St. Louis Post-Dispatch (Illinois Edition) and the Champaign News Gazette.

Question

I'm a landlord. I've been told that if I accept any rent from a tenant after I've given them an eviction notice, I lose my right to evict them. Is that true? I don't see why I should have to choose between collecting money, and evicting the tenant.

Answer

If you're evicting for non-payment of rent, accepting rent from tenants after you start the eviction process shouldn't jeopardize your eviction case.

The legal issue here is whether accepting rent waives the landlord's right to evict the tenant. Waiver can be a matter of intent-did someone, by taking a certain action, intend to give up a right they had.

Landlords who accept rent in the middle of the eviction process rarely intend to forfeit their right to evict their tenant. Like you, they simply want to cut their losses by collecting as much money as they can.

An eviction for non-payment of rent starts with a 5 day notice. That notice says how much rent is due, and says that the tenant's right to live in their apartment will be terminated if they don't pay up within 5 days. If they do pay in full within 5 days of getting the eviction notice, the tenant can't be evicted.

If a tenant pays only part of what's owed within 5 days, you can still evict them-but only if your notice contains some magic language. That language, set out in the eviction law, warns the tenant that "only full payment of the rent demanded . . . will waive the landlord's right to terminate the lease . . . , unless the landlord agrees in writing to continue the lease in exchange for receiving partial payment."

So, full payment within 5 days of the delivery of an eviction notice stops the eviction, but part payment does not, as long as your 5 day notice warns about part payment.

Accepting full or partial payment after 5 days is definitely OK once an eviction case has been filed. The law clearly states that "collection by the landlord of past due rent after the filing of a suit for possession . . . pursuant to failure of the tenant to pay the rent demanded in the notice shall not invalidate the suit."

The in-between case would be where the landlord takes money more than 5 days after delivery of the eviction notice, but before an eviction case is filed in court. The eviction statute doesn't specifically cover this situation, but it's a lot like taking rent after the court case has been filed, so it's probably not a waiver, either.

Unless, of course, you really meant to forfeit your right to evict, in which case you'd be dropping the eviction case, anyhow.

The results could be different in an eviction based on something other than non-payment of rent, and if the landlord leads the tenant to believe that payment will stop the eviction.

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