Draft Nonwaiver Provision to Collect Partial Rent After Eviction Notice

If you have a tenant that fails to pay its rent, you may decide to send it an eviction notice so that you can kick it out of its space—and even start the eviction proceeding. But if the tenant pays you some—but not all—of its overdue rent after getting your eviction notice (and after you’ve started the eviction proceeding), there might be an unexpected problem. If your lease doesn’t say whether you can continue to evict the tenant after accepting its partial payment, a court might decide to bar you from evicting the tenant. Instead of being stuck in this situation, add language to the lease that preserves your right to evict the tenant. Here’s how you can do this.

Don’t Waive Rights

To preserve your rights, make sure your lease has a nonwaiver provision. The nonwaiver provision should say that your acceptance of partial rent won’t waive any of your rights or remedies under law or the lease, including your right to evict the tenant and recover possession of the space.

Ask your attorney about adding this nonwaiver provision to your lease:

Model Lease Language

Acceptance of a partial rent payment shall not constitute a waiver of any of Landlord’s rights available under this Lease or at law or equity, including, without limitation, the right to recover possession of the Premises.

Don’t Forget Eviction Notice

Although having the nonwaiver provision in the lease may be enough to protect you, to be on the safe side, add it to the eviction notice. But make sure that your state’s laws require that you take any additional steps to prevent a tenant’s partial rent payment from damaging your eviction right.