landlord tenant
Verbal Agreement To Pay Rent On A Certain Date Admissable in Court
<p>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? </p>

<p>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.</p>

<p>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).</p>

<p>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.</p>

<ol>
<li>She said "OK, I'll make a note of that." or similar, or</li>
<li>She said "OK, that will be fine." or similar.</li>
</ol>

<p>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.</p>

<p>If its something like the second then you can make an argument that the landlord has waived their rights under the lease and is <a href="https://en.wikipedia.org/wiki/Estoppel" rel="nofollow noreferrer">estopped</a> 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).</p>

<p>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.</p>

<blockquote>
  <p>Do I have an argument in court?</p>
</blockquote>

<p>Possibly, to the extent (if any) that you can establish that the representative's acceptance is tantamount to <em>Modification of Executory Contract</em>. See <a href="https://www.nylitigationfirm.com/files/restat.pdf" rel="nofollow noreferrer">Restatement (Second) of Contracts</a> at § 89. See also <a href="https://www.leagle.com/decision/1991520437mich831513" rel="nofollow noreferrer"><em>Scholz v. Montgomery Ward &amp; Co.</em>, 437 Mich. 83, 104 (1991)</a> and <a href="https://www.leagle.com/decision/2002694232fsupp2d4621647" rel="nofollow noreferrer"><em>University of Virgin Islands v. Petersen-Springer</em>, 232 F.2d 462, 470 (2002)</a> (listing factors pursuant to that item of the <em>Restatement</em>).</p>

<p>In particular, see the analysis in <em>Univ. of Virgin Islands</em> at 104</p>

<blockquote>
  <p>[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.</p>
</blockquote>

<p>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 "<em>an objectively demonstrable reason for seeking a modification</em>" exists in your case.</p>

<p>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.</p>

<p>The fact that the company began eviction proceedings a day before the new deadline you two agreed upon constitutes evidence of <em>malice</em> (thereby contradicting the <em>contract law</em> covenant of <em>good faith and fair dealing</em>). 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.</p>

<p>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 <em>in writing</em> (at least by email) the oral agreements between you and the other person/entity.</p>

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