EDC Associates, Ltd. v. Gutierrez, 153 Cal. App. 3d 167 (1984)

Citation: EDC Associates, Ltd. v. Gutierrez, 153 Cal. App. 3d 167 (1984)
Parent Document: EDC Associates, Ltd. v. Gutierrez, 153 Cal. App. 3d 167 (1984)
Jurisdiction: California (state)
Effective Date: 1984-03-16
Original Source: https://www.courtlistener.com/opinion/2116822/edc-associates-ltd-v-gutierrez/ ↗

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II. DID LANDLORD WAIVE THE RIGHT TO OBTAIN POSSESSION OF THE LEASED PREMISES BY ACCEPTING TENANT'S TENDER OF RENT? (1) It is a general rule that the right of a lessor to declare a forfeiture of the lease arising from some breach by the lessee is waived when the lessor, with knowledge of the breach, accepts the rent specified in the lease. (Bedford InvestmentCo. v. Folb (1947) 79 Cal.App.2d 363, 366 [180 P.2d 361].) While waiver is a question of intent, the cases have required some positive evidence of rejection on the landlord's part or a specific reservation of rights in the lease to overcome the presumption that tender and acceptance of rent creates. Thus, inKarbelnig v. Brothwell (1966) 244 Cal.App.2d 333
[53 Cal.Rptr. 335], the Court of Appeal noted, in finding a lack of waiver, "[h]ere the lessor not only relied upon the express agreement in the contract of the lease against waiver of its right to assert a forfeiture for the acceptance of rent after knowledge of the breach . . . but it also gave notice that its acceptance of the rent after the breach . . . became known was not to be construed as a . . . waiver of its right to assert a forfeiture." (Id., at p. 342.) Similarly, in Thriftimart,Inc. v. Me Tex (1981) 123 Cal.App.3d 751 [177 Cal.Rptr. 24], the finding of no waiver was justified because, "[the landlord], from the [inception of the breach], clearly evidenced its objection to it. . . . [I]t . . . evidence[d] its willingness to make a new agreement. . . . [Landlord] from the start, evidenced, not a willingness to waive . . . but a willingness to lease the land encroached upon, and, if that extended lease were arrived at, to continue the lease on the original parcel. We cannot impose on [landlord] a penalty for a reasonable effort to achieve an amicable adjustment of the breach." (Id., at p. 754.)

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