Monday, July 17, 2017
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Appellate Division Says Tenant Can’t Be Ousted Because Rent Check Wasn’t Received
By a MetNews Staff Writer
A tenant who was told by the landlord that he was to remit rent each month in the form of a postal order and send it to a specified Post Office box can’t be evicted if she followed those instructions but the payment wasn’t received, the Appellate Division of the Los Angeles Superior Court has ruled.
The opinion was filed April 4 but not made public until Thursday, after the Court of Appeal determined that transfer of the case to itself was unnecessary.
The opinion upholds the decision of Los Angeles Superior Court Judge Elaine Mandel in favor of the tenant in an unlawful detainer action. The action was brought to eject a tenant of 30 years because her rent, due Sept. 1, 2015, had not been received by Sept. 8, upon expiration of a Sept. 5 three-day notice.
“We hold here that, when a tenant mails rent at a landlord’s direction and, through no fault of the tenant, the landlord does not receive it, the tenant is not in default in the payment of rent in an unlawful detainer action,” Acting Presiding Judge Alex Ricciardulli wrote in Sleep EZ v. Mateo, BV 031618.
Ordinarily, he said, payment is not made until received. However, an exception applies, the declared, pointing to Civil Code §1476, which provides:
“If a creditor, or any one of two or more joint creditors, at any time directs the debtor to perform his obligation in a particular manner, the obligation is extinguished by performance in that manner, even though the creditor does not receive the benefit of such performance.”
Ricciardulli said:
“Pursuant to Civil Code section 1476, defendants’ obligation to pay the September rent was extinguished by the mailing of the money order. [The landlord’s] direction to pay exclusively by mail shifted the risk of loss onto plaintiff, and therefore defendants were not in default in the payment of rent on September 1, 2015.
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