Yes and no. A non-payment petition would purely deal with the issue that the tenant did not pay the rent. An absolute defense to that is the payment of rent. It has happened to me and to other attorneys, where a non-payment petition was brought in and on the first or second appearance, the tenant came in with a certified check, paid the rent and handed it over to the lawyer.
At that point, the judge would make the landlord take the rent for two reasons. Firstly, the claim by the Landlord is that the rent had not been paid, so as long as that rent is correct and it included the late fees and everything that was due, the judge would make the landlord take it. The other reason would be that the judge just wanted the case done because he wanted to move on to the next case so from both the legal and practical standpoint, the case would be done.
It would be different in a holdover proceeding, because every time a landlord accepted rent in a holdover during a month to month proceeding, he would be creating a new rental period. If the person was a month to month tenant and they were in the house in September and then on October 1st they went to meet the landlord and they handed the check to him and if the landlord accepted it, he would be creating a new term of 30 days.
If, for example, October 23rd came and we terminated the tenant as of November 30th, the landlord would be entitled to the rent for November. However, they would not be able to accept the rent after November 30th. The landlord would be able to receive back rent but they would not be able to take new rent, so in this case they would not be able to take rent for December. They would be creating a new term if they accepted rent from the tenant in December for their December rent.
I have been in court plenty of times on a holdover where the tenant offered us money but I had to refuse it on the record because my client did not necessarily want the money and they wanted the tenant out for whatever reason. Maybe they wanted to sell the place, they wanted to re-let it for a higher rent, or they were just sick of the tenant. My client, the landlord, would just want the tenant out. The landlord would not be able to accept rent after a termination date and holdover because there are a many reasons why or why not a landlord would want to accept rent.
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