My Landlord Said I Didn’t Have To Pay Rent, But Now She Wants It

a promise is not a contract

Dave’s at the SF Appeal to answer your questions every Wednesday, so send them to him at tenant@sfappeal.com, here’s what to make sure to include in your letter.

My landlord has filed for bankruptcy. At the time she filed, she also notified me in writing that she was releasing me from my obligation to pay rent to her since she wouldn’t be owning the house any longer.

Since then, we worked out payment arrangements to ensure that our utilities, which are in her name, were still paid by us. Per that agreement, also in writing, we are up to date in all payments owed to her. She sent us a letter saying our rent was in arrears for the last month and that we had to pay the full amount within 36 hours or be served with a 3 day pay rent or quit notice. After reminding her of our written agreement and giving her our 30 day notice, she still served us with a 3 day notice. Are we required to pay her the rent she claims we owe, even once other arrangements had been made? We will be moving out before the eviction process is complete so the threat of being removed from the premises is moot.

This is a great question. The scenario you describe is becoming more common and your question also demonstrates a reasonable, but fundamental misunderstanding of the law.

Are you technically required to pay rent to the landlord, despite her promises–yes. Wait a minute, as small children we are told that if we make a promise we must honor it. It’s fundamental morality, right? It may be, but one can only enforce a contract under the law, not a promise.

Well, you say, we had it writing, that’s a contract, right? Not necessarily. A valid contract must always contain an essential element–valuable consideration. In modern society consideration is almost always the payment of money or an exchange of promises–like I agree to pay you five bucks to scratch my back or you scratch my back and I’ll scratch yours.

If you think about your arrangement with your landlord, ask yourselves: What did we have to do or pay to extinguish our duty to pay rent? Reading your description of your agreement, I don’t see that you had to provide any consideration. All you did was to arrange to pay the utilities. If the landlord was responsible to pay the utilities before your agreement, her three-day notice may be invalid because it may be stating the wrong amount you owed, but the landlord did not bargain away her right to collect the rent.

When are mere promises enforceable? Only when one has detrimentally relied on the promise and the reliance was justified. In your case detrimental reliance would mean that you spent the rent money and now don’t have the dough to pay the rent. Let’s say you relied on the landlord’s promise and spent the rent money for that nose job you always wanted. Is your reliance justified? Probably not.

Frankly, I don’t think you could ever show that your reliance on the landlord’s promise was justifiable. Why? Because the duty to pay rent in this culture is practically sacrosanct. Courts, even San Francisco courts, are loathe to excuse tenants from their duty to pay the rent. That’s why I almost always advise tenants to pay the rent if they receive a three-day notice.

So, if the notice period has not expired, the conservative advice is to pay the rent.

Functionally, given your thirty-day notice to vacate, it would be foolish for the landlord to serve you with an unlawful detainer (eviction) lawsuit: 1) She probably doesn’t have the money to successfully prosecute the case and 2) You will likely vacate before the trial.

The problem for you, if she does file a lawsuit, is that your credit record will be tainted if the case is not dismissed within 60 days of the filing. The unlawful detainer action can be also converted to a breach of contract lawsuit that could last for years.

Do not fail to respond to an unlawful detainer just because you are moving. Your default will speed up the process by which the landlord can recover possession and your credit record will certainly suffer.

Take your documents down to the San Francisco Tenants Union. Discuss your options with a counselor and to develop a strategy which will include communication to the landlord informing her that evicting you now will simply be throwing good money after bad. If you have a security deposit, also remind her that the deposit can be applied to any arrearage in the rent.

Crow & Rose’s legal practice emphasizes eviction defense, wrongful eviction and other landlord tenant and real property matters.

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