LEGAL MEMORANDUM

LEGAL ISSUE:

Does the fact that the landlord has not refunded any monies to you, and in fact has

continued to hold on the any monies collected by them instead of remitting them to you

even after preparing and serving the termination notice imply a waiver of the notice to

terminate because the rent accepted was in an amount to cover the rent period beyond the

period specified in the termination notice. The second legal issue is can an oral

modification be made to a contract that was originally in writing.

RULE:

“Tender of rent and its acceptance by the landlord within the notice period

probably results in an implied withdrawal of the landlord's notice to terminate the

periodic tenancy provided the rent accepted is sufficient to cover a period beyond the 30-

day period. The mere tender of the rent does not, however, result in a waiver. In order for

there to be a waiver, the landlord must accept the rent and the rent accepted must be an

amount sufficient to cover the rent period beyond the period specified in the termination

notice.” Highland Plastics, Inc. v. Enders (1980) 109 Cal. App. 3d Supp. 1, 11. (internal

citations omitted). See also Cal. Real Est. 2d Digest Landlord & Tenant s 134, Breach of

covenant or condition, generally-Waiver and estoppel ; and Miller and Starr California

Real Estate s 19:239, Waiver and estoppel.

“It is well established that a landlord who serves a tenant with notice of

termination of tenancy and thereafter accepts rent from the tenant with knowledge of the

tenant's breach of the lease waives the right to terminate the lease.” Savett v. Davis (1994)

29 Cal.App.4th Supp. 13, 16, citing Kern Sunset Oil Co. v. Good Roads Oil Co. (1931)

214 Cal. 435, 440–441.

Payment is the performance of an obligation for the delivery of money, Civil

Code§ 1478.The performance may take place by the delivery and acceptance of other

things of value instead of money, but there is only payment when the money or other

things of value are given and accepted in discharge of the obligation in whole or in part.”

Sousa v. First Cal. Co. (1950) 101 Cal.App.2d 533, 540. (internal citations omitted).

California Civil Code § 1473 states that, “Full performance of an obligation, by

the party whose duty it is to perform it, or by any other person on his behalf, and with his

assent, if accepted by the creditor, extinguishes it.”

California Civil Code § 1698 states that, “(a) A contract in writing may be

modified by a contract in writing. (b) A contract in writing may be modified by an oral

agreement to the extent that the oral agreement is executed by the parties. (c) Unless the

contract otherwise expressly provides, a contract in writing may be modified by an oral

agreement supported by new consideration. The statute of frauds (Section 1624) is

required to be satisfied if the contract as modified is within its provisions. (d) Nothing in

this section precludes in an appropriate case the application of rules of law concerning

estoppel, oral novation and substitution of a new agreement, rescission of a written

contract by an oral agreement, waiver of a provision of a written contract, or oral

independent collateral contracts.”

“Oral modifications of written agreements are precluded only if the written

agreement provides for written modification.” Conley v. Matthes (1997) 56 Cal.App.4th

1453, 1465. (citing text).

There are no provisions in the space lease agreement which state any modifications must

be in writing which means that oral modifications are not precluded.

And the California Supreme Court has ruled that an oral modification to a written

contract can be proven by a preponderance of the evidence.

“Indeed, even where a contract has been solemnized by a writing, an oral

modification of that written contract may be proved by a preponderance of the evidence.”

Weiner v. Fleischman (1991) 54 Cal.3d 476, 488. (citing text).

CONCLUSION:

Based on the legal research performed it is clear that by the actions of the landlord

they waived the thirty-day notice of termination as they are holding on to rent for a rent

period beyond the period specified in the termination notice, and they have also collected

more monies after the date that they prepared and served the thirty-day notice of

termination.

Further, as they have not required you to pay rent directly to them for such a long

period of time, a Court or jury could easily conclude that there was an oral modification

to the written contract regarding how your rent was to be paid.