Can a landlord file a unlawful detainer for late rent ifI have been paying late for over a year?

UPDATED: May 25, 2011

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Can a landlord file a unlawful detainer for late rent ifI have been paying late for over a year?

I just got served with an unlawful detainer for being late on paying my rent. Yet for over a year I have paid rent at the end of the month, every month, and have never had any legal action taken against me. I did research a case where the tenant won because of a pattern of late payments that the landlord had accepted for over a year. Do I have a chance in court?

Asked on May 25, 2011 under Real Estate Law, California


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

You seem to have done the research on the case law here and it sounds like a fair analogy to your case.  Your legal argument would include an implied agreement to change the date of payment.  However, a lease is a contract and contracts can not generally be changed unless they are done so in writing.  Landlord tenant law is very particular and sometimes court can be a crap shoot.  So I would try and consult with an attorney in your area on the matter and the standards used.  Discuss the case you found and ask the attorney to "shepardize" it for you, which means to see if it was later overturned or affirmed or used in other cases.  Good luck.

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