This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




H. or M. Filister, d/b/a

Georgetown Court Apartments,



Charles A. Okabue,


Debra A. Okabue,


Filed July 1, 1997


Davies, Judge

Anoka County District Court

File No. C09615334

Jerry A. Burg, 930 Plymouth Bldg., 12 South Sixth St., Minneapolis, MN 55402 (for Respondent)

Charles Okabue, Debra A. Okabue, 5780 East River Rd. #213, Minneapolis, MN 55432 (Pro se Appellants)

Considered and decided by Davies, Presiding Judge, Toussaint, Chief Judge, and Harten, Judge.



In this unlawful detainer action, appellant tenants challenge the trial court's judgment of restitution in favor of respondent landlord. We affirm.


Pro se appellants Charles and Debra Okabue began renting an apartment from respondent H. or M. Filister, d/b/a Georgetown Court Apartments, on December 1, 1993. The lease was for a six-month period at the rate of $545 per month; appellants paid the rent through May 1994.

The lease provided for automatic one-year extensions if respondent sent a new lease within 60 days of the termination date and appellants failed to respond. On March 8, 1994, respondent mailed a new lease to appellants providing for an increase in rent to $550 per month and giving appellants the opportunity to give 60-day written notice of termination. When appellants did not give notice of termination, respondent notified appellants that the lease had been renewed at the increased rate of $550 (the new amount to become effective June 1994). From June 1994 through May 1995, appellants paid only $545 per month, thus accumulating an unpaid rent balance of $5 per month. When the unpaid rent balance reached $55, respondent began charging a $10 late fee each month, as provided for by the lease.[1]

Respondent increased rent again the next year, following the same notification process. Appellants again failed to give written notice of termination, and the lease was extended at an increased rate of $565 beginning in June 1995. Appellants paid the full $565 per month rental fee from June 1995 through May 1996. Their unpaid balance remained unsatisfied and the monthly late fee continued to accumulate.[2]

The same process in 1996 led to a renewal at the rate of $585. From June through December 1996, appellants paid only $565 of the new $585 rent.

In December 1996, respondent brought this unlawful detainer action based on the unpaid rent and late fees.

At trial, the court admitted samples of the numerous notices that respondent sent to appellants regarding the status of their rental account. Also in evidence were computer summaries of the account and the dates of all notices sent, showing that since appellants first began to underpay their rent, in June 1994, respondents mailed one letter per month (and sometimes two) regarding the balance owed.

The trial court concluded that respondent was entitled to restitution of the apartment.


I. Waiver

If, before the termination of a lease, a tenant is notified by his landlord that if he holds over he will be required to pay an additional amount as rent, the tenant will be bound by the terms of the notification, and this is true even if he objects to the increase.

Stees v. Bergmeier, 91 Minn. 513, 515-16, 98 N.W. 648, 649 (1904). Under this rule, it is plain that appellants are responsible for the full rent stated in each renewal notice sent by respondent.

Appellants' main argument on appeal seems to be that respondent waived the right to collect the unpaid amounts by cashing their checks for lesser amounts each month and continuing to lease the apartment without pursuing them for the claimed unpaid amounts. At trial, appellant Charles Okabue objected that he was being sued for not paying rent even though his "rent" check for December had been cashed. His confusion may arise from his knowledge that a landlord, by accepting a rent payment after commencing an unlawful detainer proceeding, compromises that proceeding. See Arcade Inv. Co. v. Gieriet, 99 Minn. 277, 279, 109 N.W. 250, 250-51 (1906) (acceptance of rent after giving notice to quit is evidence of waiver). Here, respondent accepted no rent after the unlawful detainer proceeding was commenced.

The claim here is based on the total of all the small unpaid rent amounts that had accrued over the tenancy and the resulting late charges. Paragraph 30 of the lease provides for recovery by respondent of "lost rents" if appellants fail to "keep all the conditions of [the] lease" (including full payment of rent). It includes a nonwaiver provision, which states:

[Respondent's] failure or lateness in asking me to pay these costs does not mean [respondent] has lost [its] right to them.

In addition, there is substantial evidence that respondent made written rent payment requests (which noted the possibility of legal action) on at least a monthly basis; respondent thus did not acquiesce to the lesser amounts paid by appellants. In short, respondent did not waive the right to collect the full amounts of rent.

The cases cited by appellants do not deal with breach for nonpayment of rent. For example, in Priordale Mall Investors v. Farrington, 411 N.W.2d 582, 584 (Minn. App. 1987), this court held that, if the landlord knew the tenant's conduct had violated the lease, acceptance of rent acted as a waiver of the landlord's right to assert past defaults. The case specifically noted that it did not deal with "nonpayment of rent." Id. at 584 n.1.[3]

It would be unwise to craft a rule that a landlord who cashes a check for less than the rental amount thereby waives the right to the remainder. This is especially true here, where each underpayment was too small to justify immediate legal action.

Appellants cite to Parkin v. Fitzgerald, 307 Minn. 423, 431, 240 N.W.2d 828, 833 (1976), in which a landlord, who accepted a new check after a rent check had been returned for insufficient funds and who did not take action until many months later, had waived any breach resulting from the bad check.[4] The circumstances in Parkin are much different from those here, where appellants regularly paid slightly less than the rent due and frequently were notified of the deficiency and of respondent's intent to recover the unpaid amounts.

II. Other Issues

Citing no law, appellants also argue that the only period properly at issue is June through December 1996. They argue that past due amounts from earlier lease periods are no longer relevant or recoverable. We disagree, seeing no reason why respondent could not extend the lease yet still be entitled to the amounts owed for prior lease periods.

Appellants also claim that, when given the extension and rent-increase notice in the spring of 1996, they talked to one of respondent's employees about a desire to have carpeting replaced and that they were promised new carpeting. They further state that in June 1996, when the higher rent ($585) was due, they had heard nothing about the carpet and so they decided to pay the old rent amount ($565). Appellants presented no evidence of an agreement on carpeting (the lease provides that any modifications of the lease must be in writing). Appellants did not give written (or other) notification that they wanted to terminate the lease. Therefore, it automatically renewed for a year at the increased amount.


[ ]1 The lease also provided for a $1 per day late fee, but respondents did not charge appellants this additional penalty prior to the filing of the unlawful detainer action. The complaint claims the $1 per day late fee from December 6, 1996.

[ ]2 Respondent's bookkeeper testified that each time appellants made a payment, it was first applied to the unpaid balance, and any remaining amount was applied to current rent.

[ ]3 Thomas Peebles & Co. v Sherman, 148 Minn. 282, 283, 181 N.W. 715, 715-16 (1921), also cited by appellants, similarly deals with breach of a lease provision prohibiting subletting, rather than failure to pay the full rent.

[ ]4 Parkin dealt more with the issue of whether the landlord's attempt to evict the tenants after they had instigated a housing authority inspection of the property was retaliatory. 307 Minn. at 427, 240 N.W.2d at 831. The discussion of the returned check was in the context of the court's discussion of possible nonretaliatory motives for the eviction. Id. at 431, 240 N.W.2d at 833.