Landlord’s Corner – Abandonment clauses in leases
A. Self Help Evictions
Ohio Revised Code Section 5321.15 prohibits what are known in Ohio as self help evictions. A self help eviction is when the landlord locks the tenant out and/or disposes of the tenant’s property without going through the statutory eviction process listed in Ohio Revised Code Section 1923.04. Landlords who engage in self help evictions can be found liable for actual damages (the value of the items lost) and attorneys fees.
Such landlords also face common law claims for relief sounding in conversion, trespass, and trespass to chattels. All of these are intentional torts, and at common law, can be a basis for an award of actual damages, punitive damages, and attorneys fees. Punitive damages can be in amounts which are designed by the courts to make an impression upon the landlord and dissuade the landlord from repeating such mistakes in the future. Thus if the landlord owns or manages a great deal of property, the court may award a large enough amount to make it hurt.
Thus it is clear that damages in self help eviction cases can be costly for the landlord. While tenants do face problems of proof (all of their receipts may have been destroyed along with their property) with the advent of computerization of credit card records and bank statements, it’s not that hard to reconstruct the fact that certain purchases took place and for how much. Further, courts are somewhat sympathetic to the proof problems that tenants have in such situations as it was the landlord’s misconduct which gave rise to the proof problem.
Even in a case where the tenant cannot prove his or her damages, a court can still award nominal damages to the tenant. Nominal damages are important because they can serve as a basis for an award of punitive damages and/or attorneys fees to the tenant. At today’s rates, the tenant’s attorneys fees can be an expensive proposition.
Further, even a win in court will not be without costs for the landlord, as the landlord’s counsel does not work for free, and the time spent on employee hours to prepare for the presentation of evidence and to attend hearings can be considerable.
B. Abandonment Clauses
In an attempt to get around these problems, landlords have inserted clauses in lease agreements which state that the tenant will be presumed to have abandoned the apartment if certain listed conditions occur. That way, they figure that if they can show the court that the listed conditions occurred, they will have a defense to the common law causes of action and the statutory violation of Ohio Revised Code Section 5321.15.
These clauses are not without their uses. Even if they are unenforceable, there is no penalty for having them in a lease in Ohio. Further, if a tenant does not know his or her rights, the clause may create a mirage defense such that a suit might be avoided if the landlord acts improperly and then points out the clause to the tenant. But in these days of readily accessible information on the internet, it is unwise to rely upon a tenant’s ignorance of his or her rights.
From the legal point of view, the real trouble with these clauses is that Ohio Revised Code Section 5321.06 prohibits the enforcement of any clause in a rental agreement which conflicts with Ohio Revised Code Section 5321.15. Further, Ohio Revised Code Section 5321.14 prohibits the enforcement of any clauses in rental agreements which a court deems unconscionable. Unconscionable clauses are those clauses which are so one sided, unfair, or overreaching that a court will not enforce them. Many abandonment clauses fit into this definition.
Ohio Courts have defined abandonment as the absolute unequivocal relinquishment of a right or status without regard to self or any other person. It is a virtual throwing away without regard as to who may take over or carry on. It is a total discarding of what existed or went before; and evidence thereof must be direct, affirmative or reasonably beget the exclusive inference of throwing away. Hamilton v. Harville (1989), 63 Ohio App.3d 27.
Thus to simply rely upon a clause in a lease that an apartment will be considered abandoned after the tenant has not been seen for two weeks is unwise. If a tenant is current on his rent, if the tenant’s personal items are still at the rented premises, if items of value or sentimental value remain behind, this is strong evidence that the tenant was simply away and may be returning.
Remember the wording above about abandonment being an absolute unequivocal relinquishment? Now consider that abandonment is an affirmative defense for a landlord, meaning that the landlord bears the burden of proof on the issue. If you go to court and your only allies are your attorney and a piece of paper which the court may or may not enforce, you may find yourself behind the eight ball.
C. Cases Which Might Help You If You Are Behind the Eight Ball
Ohio’s Fourth District Court of Appeals has upheld the enforceability of some abandonment clauses. In one case, the abandonment clause read as follows:
In the event Resident fails to remove all of their personal property from the premises upon the abandonment of the premises, Landlord may, at its option, remove all or any part of said property in any manner Landlord may choose and store the same without liability to Resident for loss or damage and Resident shall be liable to Landlord for all expenses incurred in such removal and storage of such property. For purposes of this Agreement, abandonment shall mean the Resident’s apparent desertion of the premises. Haddox v. Moreland, 1996 Ohio App. LEXIS 3380 (August 5, 1996) Pickaway Co. App. No. 95CA20, unreported.
The Court ignored Ohio Revised Code Section 5321.13(D) which states in pertinent part as follows:
No agreement by a tenant to the exculpation or limitation of any liability of the landlord arising under law or to indemnify the landlord for that liability or its related costs shall be recognized in any rental agreement or in any other agreement between a landlord and tenant.
It is pretty clear that the clause in the contract quoted above by the Fourth District is an attempt to limit a landlord’s liability. The Court was likely swayed by the fact that the tenants in this case were not very likeable persons. The facts in this case showed that the tenants had left behind three dogs, one of which was found dead, wrapped in a towel, and the other two were alive in very poor condition. So the holding in this case might not carry much persuasive weight if the tenant in your case has not acted in such an egregious fashion.
D. Tips For The Wise Landlord
The best course of action to take when you find yourself in a situation wherein you cannot be sure whether the tenant has abandoned the place is to file an eviction with the courts and get a writ of restitution. If the bailiff conducts the set out after a properly filed eviction, there will be no liability for the landlord if he or she is sued. The money that you spend filing the eviction will likely pale in comparison to the money you spend on an attorney to defend you on a 5321.15 claim. Even in cases where you are sure that the tenant has abandoned, it is a good idea to video tape the condition of the premises so that you can show a court the conditions which led you to believe that the apartment was abandoned, as this may lead the court to the same conclusion.
The wise landlord will make a practice of having tenants sign a document stating that they have left the property voluntarily as of a certain date and that any property left behind is either not theirs or abandoned. You should also preserve any communications with the tenant such as emails or letters in which the tenant stated that he was leaving and not coming back. Making an inventory of any items left behind is not a bad idea either. Storing valuable items in a safe place for a time is also a good idea. This may limit the damages the tenant can assert against you.