A management company asked me to call them and tell them when I was going to pay my rent. I called and spoke with a representative from their company. She accepted my date to pay and said she was going to make a note on my account. I paid the rent on the day I said I would be saw that a legal proceeding for eviction was started the day before. Do I have an argument in court? Why would they send me a letter telling me to call them and let them know what day I can pay if when I do that and get a verbal agreement, they commence legal action against me as if I did not?

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    Is there a date in your lease agreement? Did they call and ask when you could make a payment that was already overdue? – Ron Beyer Feb 17 '19 at 3:42
  • What country are you in, and if in the US, in what state and what city or county? Landlord/tenant law varies a good deal for one jurisdiction to another. It also includes a good many quite specific provisions different from general contract law. Therefore knowing the jurisdiction is quite significant. Also, did eviction proceedings continue after you paid the rent? in most jurisdictions, payment, even if late, halts eviction proceedings that were started because of unpaid rent.. – David Siegel Feb 17 '19 at 13:45
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    It's not necessary that these two facts be in conflict. One part of the management company could have already been working on eviction and another part was working on getting the monies they were owed. Unless they said they would forgive the lateness as part of you paying on a certain date then there's not necessarily anything you can do. It's not just that they noted when you would make the payment. Did they promise that they wouldn't evict if you paid by that date or did they just accept that as the date to expect your payment? – Dave D Feb 17 '19 at 19:29

This is an unanswerable question without knowing your jurisdiction, the details of your contract and what, precisely, was said. Of course, if you supply that, you will be asking for legal advice.

However, these are the general principles. I assume you have a lease and that it requires payment of the rent on or before a given day. I assume that if you do not pay the rent on or before that day the landlord can start eviction procedures. I assume that if the landlord does start eviction procedures, subsequent payment of the rent won't stop them (local law will be very relevant here).

I gather that you had not paid the rent when it was due and it was this that prompted the landlord's agent to call you and ask when you would be paying. You suggested a date. Now, what she did is absolutely critical.

  1. She said "OK, I'll make a note of that." or similar, or
  2. She said "OK, that will be fine." or similar.

If it is something like the first statement she has made no indication that your proposed date is acceptable to the landlord. As such, the landlord is free to exercise any of their rights under the lease including starting eviction procedures.

If its something like the second then you can make an argument that the landlord has waived their rights under the lease and is estopped from acting on your breach of contract. To be estopped there needs to have been a clear, unambiguous promise by the agent upon which you relied to your detriment. Silence is not a promise, "OK" is not a promise (its an acknowledgement that she heard you) - "that will be fine" is a promise (a promise that it will be fine).

Note that your underlying lease has not been varied - variation of an existing contract requires consideration by both parties - they allow you to pay late but you offered nothing in return. Further, a waiver for one breach is not a general waiver of all similar breaches.

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Do I have an argument in court?

Possibly, to the extent (if any) that you can establish that the representative's acceptance is tantamount to Modification of Executory Contract. See Restatement (Second) of Contracts at § 89. See also Scholz v. Montgomery Ward & Co., 437 Mich. 83, 104 (1991) and University of Virgin Islands v. Petersen-Springer, 232 F.2d 462, 470 (2002) (listing factors pursuant to that item of the Restatement).

In particular, see the analysis in Univ. of Virgin Islands at 104

[the plaintiff] was silent and raised no objection and made no claim for additional pay and accepted the increases in pay, again without complaining that it was inadequate. Since there was "an objectively demonstrable reason for seeking a modification," we conclude that the modification was "fair and equitable" and constituted a legally binding modification to Springer's 1988-1989 contract.

Here, the representative did not complain that your proposed new deadline was inadequate. Quite the contrary, she seemed satisfied with your answer and never (thereafter) expressed to you disapproval thereof. It is unclear from your description, though, whether "an objectively demonstrable reason for seeking a modification" exists in your case.

The details of the representative's subsequent remark (namely, that she was going to make an annotation on your account) may have reasonably reinforced your understanding that the representative accepted your new date. Accordingly, you might need to elaborate on how the representative's wording reinforced your understanding that the company would refrain from engaging in eviction proceedings.

The fact that the company began eviction proceedings a day before the new deadline you two agreed upon constitutes evidence of malice (thereby contradicting the contract law covenant of good faith and fair dealing). This is aggravated by the company's failure to notify you of its intent to commence eviction proceedings regardless of your compliance with the new deadline. The company's omission deprived you of the opportunity to (1) memorialize (for evidentiary purposes) the oral contract, and/or (2) seek arrangements elsewhere to possibly avert eviction proceedings.

Another difficult issue will be for your to prove that the representative accepted the new deadline. Expect the company or representative to deny in court (even if under oath) that any such oral agreement took place. Hence why it is utmost important to reflect in writing (at least by email) the oral agreements between you and the other person/entity.

I am not familiar with eviction proceedings and how much they vary among jurisdictions. But contract law does not necessarily foreclose your defense that this matter subjected you to unfair surprise.

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  • There is no contract - the tenant offered no consideration, paying rent was a legal obligation under another contract and is therefore not good consideration. – Dale M Feb 17 '19 at 19:48
  • @DaleM Thanks. That's a good point. I fixed accordingly. – Iñaki Viggers Feb 17 '19 at 23:54
  • The Restatement (Second) of Contracts is available here, now that the law firm of the link in this answer removed that resource and posted some useless "overview of contract law" instead. – Iñaki Viggers Jan 3 at 15:40

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