4324. Affirmative Defense Waiver by Acceptance of Rent

4324. Affirmative Defense--Waiver by Acceptance of Rent Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 [Name of defendant] claims that [name of plaintiff] is not entitled to evict [him/her/it] because [name of plaintiff] accepted payment of rent [after the threeday notice period had expired/[name of defendant] had violated the [lease/rental agreement]]. To succeed on this defense, [name of defendant] must prove: [1]. That [name of plaintiff] accepted a [partial] payment of rent after [the three-day notice period had expired/[name of plaintiff] knew that [name of defendant] had violated the [lease/rental agreement]] [./; and] [2. That [name of plaintiff] failed to provide actual notice to [name of defendant] that partial payment would be insufficient to avoid eviction.] If [name of defendant] has proven that [he/she/it] paid rent, then [he/she/it] has the right to continue occupying the property unless [name of plaintiff] proves [one of the following:] [1. That even though [name of plaintiff] received [name of defendant]'s [specify noncash form of payment, e.g., check], [he/she/it] rejected the rent payment because [e.g., it never cashed the check]][./; or] That the lease contained a provision stating that acceptance of [late rent/rent after knowing of a violation of the [lease/rental agreement]] would not affect [his/her/its] right to evict [name of defendant]][./; or] That [name of plaintiff] clearly and continuously objected to the violation of the [lease/rental agreement].] [2. [3. ________________________________________________________________________________ New August 2007; Revised June 2010, December 2011