concurring in the result only.
In my mind the crucial facts in this case are those relating to the second fourteen-day notice, and the tender and refusal of rent that occurred in the course of the unlawful detention trial. In short, Duran made a tender of the rent in a timely manner in accordance with the demand in the second notice.
Duran made two alleged “tenders” of rent to the Housing Authority. The first was made on December 4, 1985, the day after the unlawful detention action was filed, and consisted of no more than a statement that Duran “would try to get the money together.” In addition, the time period set forth in the first, or November 25, 1985, demand for payment or possession had expired and the Housing Authority had no obligation to accept Duran’s “offer” of payment, even if the tender had been sufficient. See International Indus., Inc. v. United Mortgage Co., 96 Nev. 150, 606 P.2d 163 (1980) (a tender is ineffective after expiration of the notice to quit); Briggs v. Electronic Memories & Magnetics Corp., 53 Cal.App.3d 900, 126 Cal.Rptr. 34 (1975) (a landlord can refuse a post-notice tender of rent). The trial court correctly found that Duran’s December 4, 1985 offer of payment was not a “tender” within the legal definition of the term.
Duran’s second tender of rent was made during the trial on December 19, 1985, thirteen days after the second fourteen-day notice was served and is part of the record.
(Examination of Joan Duran)
Q: Do you have one hundred and forty-one dollars to give the ... plaintiff today?
A: I have a hundred — I think I have one hundred and forty-four dollars.
Q: One Hundred and forty-four, I am sorry.
A: Yes.
Ms. Abernathy: Your honor, if you will, we would like to give that one hundred and forty-four dollars and offer it in symbol as well as words and tender it to the [plaintiff] for payment within the fourteen day period as expressed by the second notice.
Mr. Mills: Your Honor, I think we can avoid the histrionics. We are here on a perfected right to evict for the failure to pay the rent in November not in December. And I think it is not relevant to that cause.
Ms. Abernathy: And we are here because the plaintiff has expressed an intent to accept the entire amount of one hundred forty-four dollars which is the rent for November and the rent for December and is now unwilling to accept the very payment he asked for.
The second fourteen-day notice did not waive the Housing Authority’s right to proceed with its action for unlawful detention, but Duran’s compliance with the terms of the notice bars further action to terminate the lease. We held in Merkowitz v. Mahoney, 121 Colo. 38, 43, 215 P.2d 317, 320 (1974), that “the landlord may accept payment of back rent under agreement to stop the litigation and recognize the continuance of the term of the lease. This would constitute a waiver.” In Marshall v. Davis, 122 Ky. 413, 91 S.W. 714 (1906), the Kentucky Supreme Court held that a landlord gave up the right to enforce a judgment evicting her tenant by entering into an *188agreement to accept back rent and continue the lease.
In the present case, the Housing Authority advised Duran on December 6, 1985 that:
We are sorry to have to inform you that, unless this rent is fully paid, within fourteen (14) days from the date of the delivery of this notice to you, or to the premises you now occupy as a tenant of the Authority, the Authority intends to terminate and cancel your month to month lease. We surely hope that you will make up the rent payments that you owe, so that you can remain in your unit.
(Emphasis added.)
Duran complied with that notice on December 19, 1985, by making a timely, absolute and unconditional tender that evidenced a present intent and ability to perform. Although she did not produce the money at trial, the Housing Authority’s unequivocal rejection of her offer made actual tender unnecessary. See Gerbaz v. Hulsey, 132 Colo. 359, 288 P.2d 357 (1955) (tender is not required where it would be idle or useless thing); Kammert Brothers Enterprises, Inc. v. Tanque Verde Plaza Co., 102 Ariz. 301, 428 P.2d 678 (1967) (actual tender is unnecessary where it is clear that the other party will not accept it).
Duran’s tender of payment therefore was a timely acceptance of the Housing Authority’s offer to continue Duran’s lease, and, under Merkowitz and Marshall, the parties’ agreement to continue the lease bars the Housing Authority from proceeding with its action to evict Duran. Although a notice and demand to Duran during the pendency of this action was not necessary, the Housing Authority should be bound by the terms of the notice that was served on Duran. To hold otherwise would render the notice meaningless. The Housing Authority could advise its delinquent tenants during eviction proceedings that they could continue their leases upon tender of past due rent, and evict tenants that complied with the notice and demand. Such a result does not give effect to plain language in the notice and would allow the Housing Authority to mislead delinquent tenants.
Accordingly, I would reverse and remand for a further hearing.
I am authorized to say that Justice VOL-LACK joins in this concurrence.