Today’s case is Rafizadeh v. KR Snellville LLC, 280 Ga. App. 613 (2006). Rafizadeh, the owner of a restaurant, leased a space in a shopping center from KR Snellville. The lease required Rafizadeh to pay a monthly rental payment, his share of the common area maintenance expenses, and his share of the annual real estate tax. Rafizadeh’s monthly lease obligation was $5,229.93. In 2004, Rafizadeh began making monthly payments of only $3,600. KRS filed an action seeking to recover rent due and owing under the lease, but two of the checks Rafizadeh sent prior contained the following restrictive endorsement:
ACCEPTANCE, ENDORSEMENT, NEGOTIATION OF THIS CHECK CONSTITUTES AGREEMENT AS TO PAYMENT IN FULL AND FINAL SETTLEMENT, WITHOUT EXCEPTION OR OFFSET FOR ANY AND ALL OBLIGATIONS OF DEMAND OWING BY THE MAKER OF THIS CHECK.
However, Rafizadeh produced no evidence of an independent agreement that KRS would accept a reduced rental payment or dispute as to the correctness of the amount of the debt. The trial court’s holding that KRS’s claim for the $1,813.13 in CAM reconciliation charges was barred by the doctrine of res judicata was reversed.
The lesson learned is Practice Pointer #7: The landlord who wishes to evict a tenant for failing to pay rent must not accept rent payments in any amount after making a demand for possession.
Acceptance of a payment – even if less than the total amount due – will waive the landlord’s right to dispossess the tenant, and could give the tenant the ability to plead the defense of accord and satisfaction when a claim for rent is filed. If the landlord wishes to recover possession of the premises, the proper action for the landlord to take upon tender by the tenant is to promptly refuse or return.