Can Landlord Evict Me for the Actions of My Guests
In the case of Associated Estates Corp v. Bartell (1985), 24 Ohio App.3d 492, the landlord sought to evict the tenant for the loud and boisterous actions of several persons whom the tenant had asked to leave her apartment. As the ex-guests left, they damaged the front door of the apartment and broke car windows in the parking lot. The Eighth Appellate District Court held that:
- Moreover, appellant should not be penalized for the acts of uninvited “guests.” According to the resident handbook, a tenant is responsible for the conduct of her “guests” in her apartment or in or around the public areas and grounds. In ABC Management Co. v. Gamble (Dec. 15, 1983), Franklin Cty. M.C. No. 83AP-788, unreported, the court held that the tenant was not responsible for the acts of an uninvited “guest.” In the instant case, since the people who damaged appellant’s door and another tenant’s car windows were uninvited and in light of the fact that appellant brought criminal charges against them, they cannot be deemed “guests” and appellant is not responsible for their actions. Id. at 11.
In this case, when the guests became uninvited they were no longer “guests” and the tenant was not responsible for their actions.
Q. Can my landlord lock me out or turn off the utilities if I violate a term of the rental agreement?
A. No. If a landlord wishes to regain possession of the apartment, he must proceed with an eviction in accordance with Ohio Revised Code Section 1923. This requires the posting of a three day notice to vacate on your door. If the landlord returns after the three day period and you have not left, then the landlord must file a lawsuit called a “forcible entry and detainer action” with the local court. A copy of this complaint will be served upon you by the Clerk of Courts and a hearing will be held (usually in front of a small claims court magistrate) within about 15 days in which the landlord will argue that he has the right to evict you, and you may argue that you have the right to stay. Both sides have the right to put on evidence and have witnesses testify in support of their claims.
If the judge decides in the tenant’s favor, then the case is dismissed. If the judge decides in the landlord’s favor, then this will give the landlord the ability to get a Writ of Restitution (also known as a “Red Tag”). This Writ of Restitution must be posted upon the tenant’s door, and from the date that it was issued, the tenant will have five days to move out. If you are in doubt as to whether a Writ of Restitution has been issued, call the Clerk of Courts with your case number from the eviction hearing and they should be able to tell you over the phone. If the tenant is not out in five days, then the landlord can show up with a work crew, a locksmith, and a Sheriff’s Deputy and begin to remove your belongings and change the locks. If you refuse to leave at that point, the Sheriff’s Deputy will force you to leave.
But the important thing to remember is that the landlord must follow the statutorily described process outlined in Ohio Revised Code Section 1923. If the landlord simply locks you out and puts your stuff to the curb (even though your right to stay at the apartment has terminated), or turns off the utilities, then the landlord is in violation of Ohio Revised Code Section 5321.15 and may have to pay damages (such as your hotel bills, the value of lost or ruined items of your personal property, and attorney fees).
Can Landlord Evict Me for Failing to Pay Rent on Time When I’ve Been Late Before
Q. My lease says that I am to pay the rent by the first of the month. I have been late almost every month by a few days, and my landlord has never objected. Recently, I was late by two days, and now my landlord wants to evict me for failing to pay the rent on time. Can he evict me?
A. When two parties engage in a course of conduct that is different from the written terms of the lease, the Court will often
find that the written terms of the lease have been waived. The theory behind this is what is called freedom of contract. There are
two ways a contract can come into existence, by words (whether written or oral) or by deeds. The written lease is an example of the first type of contract, an express contract. The deeds (paying the rent late every month by a few days and the landlord not objecting) is an implied contract. The deeds of the parties show the court that the parties intended to be bound by a different agreement than the one that they had previously reached.
Interestingly enough, the more often you can show the court that you were late, the better it is for you. Being late on the rent one or two times may not be enough for the Court to find that the landlord waived his right to strict compliance with the terms of the contract. Being late month after month after month shows the Court a pattern, a course of dealings, that led the tenant to rely upon the fact that being a few days late was no big deal.
The only way that the landlord can regain his right to strict compliance with the written terms of the rental agreement is to send out a letter of strict compliance. This letter must say something to the effect of “Ok, tenant, you’ve been late in the past on the rent, and I have accepted such payments, but now this is all changing, and from now on, I insist upon being paid strictly in accordance with the terms of the lease.” If your landlord sends you one of these letters, then a Court is unlikely to find waiver the next time you are late on your rent.
This type of argument works with almost every condition in a written lease. If your lease says no pets, but your landlord has known that you have a pet at the apartment from the outset, then you can argue that your landlord has waived strict compliance with the no pets clause. The only complication arises when there is an anti-waiver clause in the rental agreement. Some rental agreements assert that no course of dealings shall constitute a waiver of the terms of the agreement. The tenant of course will argue that such clause impermissibly hinder freedom of contract, and as a back up argument can assert that the anti-waiver clause itself was waived by the course of dealings between the parties that was inconsistent with it. Ohio law is currently unclear on whether a court would enforce such an anti-waiver clause.
Can Landlord Maintain a Retaliatory Eviction
Q. I recently complained to my landlord about some problems at the apartment, and now he has placed a notice of eviction on my door. Can he evict me in retaliation for complaining?
A. No. Ohio Revised Code Section 5321.02 forbids a landlord from evicting a tenant for exercising his rights as a tenant. If the Court finds that the landlord’s eviction was motivated by a desire for retaliation, then the eviction action will be dismissed, the tenant’s actual damages (if any) will be awarded to the tenant, and the landlord will have to pay for the tenant’s attorney fees. The problem with all of this is that intent is a subjective thing. It is difficult to read a landlord’s mind to see what motivated him. Once the landlord realizes that he cannot evict you for complaining, he will likely tell the court that he was evicting you for some other reason such as excessive noise.
Proximity in time between your complaint and the eviction action is one good piece of proof in Court, but it is not decisive proof. If your landlord is asserting a reason that you feel is pretextual (a lie), then ask him to back it up with documents once you get to court. If the neighbors were complaining about noise, where are
he police reports or phone log messages to the landlord’s secretary to back this up? Why were no witnesses willing to come in to support the landlord’s version of the facts? In the end the judge is going to make the call, and he could rule either way, so both the landlord and the tenant are playing a dangerous game when they go to war on this one.
Accepting Rent after Posting a 3 Day Eviction Notice
Q. Can a landlord accept rent checks or money orders from tenants after he has posted a three day notice of eviction and still maintain the eviction?
A. The landlord may accept rent paid for liability already incurred without acting inconsistently with the notice to vacate. But, by accepting future rent payments, the landlord has waived the three-day notice since such acceptance is inconsistent with the landlord’s notice to vacate. See Presidential Park Apts. v. Colston (1980), 17 Ohio Op. 3d 220, 221, Pace v. Buck (1949), 86 Ohio App. 25, and Schmidt v. Hummell (1947), 81 Ohio App. 167, 36 Ohio Op. 485, 73 N.E.2d 806.
But many landlords, while accepting the rent checks or money orders will simply not cash them until they find out the disposition of the eviction action. If pressed on the subject in Court they will offer up the uncashed instruments and argue that their failure to cash them constituted non-acceptance.
But in the case of Cipolla v. Waters 1998 Ohio App. LEXIS 5851 Lorain App. No. 97 CA 006866, unreported, the Court of Appeals for the Ninth Appellate District held as follows:
- However, as stated in Pace, supra, at 28 if the landlord merely holds a money order sent by the tenant for evidentiary purposes, such conduct does not constitute an acceptance of the rent payment, if the landlord asserts, and communicates the assertion, that the money order is and will not be accepted in payment of rent. Pillot v. Moss (1943), 72 Ohio App. 492, 495, 53 N.E.2d 73; Wilcke v. Smith (1946), 34 Ohio Op. 255, 257, 68 N.E.2d 386; Hile v. Besecker (1947), 82 Ohio App. 301, 306-07, 79 N.E.2d 582.
Thus if the landlord does not inform the tenant that the rent is not being accepted, then he will be deemed to have accepted it. Not cashing the instrument is not a defense to acceptance. Such acceptance of future rent waives the three day notice to vacate that is a requisite component of every eviction action.
Q. Can my landlord evict me for excessive noise?
A. Landlords can evict tenants for excessive noise as this constitutes both a breach of the rental agreement and a breach of Ohio Revised Code Section 5321.05(A)(8). But since excessive noise is a breach of 5321.05(A)(8), the landlord must first send the tenant a 30 day letter advising them that they must cease and desist from making too much noise and give the tenants 30 days to comply.
A clever landlord may try to argue that 5321.11 only applies to those violations of 5321.05 which endanger health and safety, and that excessive noise does not endanger health and safety. But there are two cases which indicate differently under Ohio law. The Ohio Supreme Court in the case of City of Youngstown v. Kahn (1925), 112 Ohio St. 654 stated in another context that “It is true that noise affects health through nerve strain, and the apartment house is attacked upon the ground of noise; but people who live in apartment houses may not of themselves be so noisy as people who live in private houses. Id. at 662.
In the case of Shew v. Deremer (1963), 2 Ohio Misc. 65, the Trial Court addressed noises coming from airports and stated that:
- A government committee in Great Britain has said, “There is no doubt that noise affects health, but the general effect is more psychological than physical. United States medical researchers have gone further in suggesting that noise can damage hearing, general health and the nerves. Id. at 62.
Lastly, in the case of Parker v. Fisher (1984), 17 Ohio App. 3d 103 the landlord attempted to expel the tenants for three reasons, failure to keep the apartment clean, excessive noise, and having an unauthorized person in the apartment. The Ninth District Court of Appeals stated that: In the present case the landlord’s claimed breaches of obligation included both those which require a thirty-day notice to cure and at least one (unauthorized person living there) which did not require such notice. This indicates that the other two complaints (one of which was for excessive noise) threatened health and safety.
So failing the delivery of a 30 day letter, the landlord cannot post the three day notice to vacate that normally starts the eviction. If the landlord does simply post the three day notice to vacate without sending out the 30 day letter, then this will not be sufficient and any forcible entry and detainer action that the landlord files against the tenant will have to be dismissed.
Tenant’s Defenses Against Eviction: Equity Arguments
One defense that a tenant may interpose at the possession hearing which may forestall the eviction is an equity argument. There is a considerable line of authority in Ohio case law that “equity abhors a forfeiture.” Courts in Ohio have two types of power, the first is the Court’s legal power (the power to declare that person A owes money to person B) and second there is the Court’s equitable powers, whereby the Court can order a person to do or not do a thing. For instance, a Court could order a union on strike not to get too close to the factory gates. Or a court could order one person to pay child support to another and jail them for not doing so.
In the context of an eviction, the court is ordering the tenant to vacate the rented premises, so the court here is using its equitable power. If the tenant argues that the breach of the lease agreement is one that did not really hurt the landlord in any way, and that the damage to the tenant would be inordinately deleterious, then a court could (although each case will be analyzed on its own facts) deny the eviction.
An example might be that the tenant’s flight back from Disney World was delayed due to bad weather and as such, the rent was late by one day. Were the landlord to base the eviction on this, the tenant could argue that the failure to pay on time was not due to negligence or willfulness. If the tenant further argued that he or she had children in school and that forcing the tenant to move would mean that the children would have to relocate in the middle of the school year, then the judge, if so inclined, could rule that since the landlord was not really hurt by the one day delay, and since the tenant was not really at fault in paying the rent late, and since the effect upon the family would be serious, that equity abhors a forfeiture and the eviction action may be dismissed.
To combat this, the landlord needs to first be wise about when to bring the eviction. If the offense of the tenant is trifling, then the landlord should not jump to an eviction, but rather send the tenant a letter warning the tenant that if it happens again, there will be an eviction. Now if the breach occurs again, the landlord can produce a copy of the warning letter and show the court that the tenant had breached the lease not once but twice, and the second time after a written warning.
Further, the landlord should be ready with evidence that the breach of the lease did have a serious negative effect upon the landlord. Perhaps if the landlord has his mortgage payment on the rental property on auto-pay to the bank on the day after the rent is supposed to be deposited, and if the tenant’s delay caused the payment to be missed, then this could help the landlord show the court that the breach of the lease agreement was not trifling but serious.
So be careful in making the choice of when to evict the tenant, document non serious breaches with a written warning before acting upon the second breach, and be prepared to show the court how the breach of the lease is a serious one rather than a trifling mistake.
How to maintain an eviction against a former boyfriend/girlfriend
Q. I broke up with my boyfriend and now he won’t move out, can I evict him?
A. If you and your boyfriend recently broke up and were sharing a place to live, you may have difficulty getting him out right away. You could try to move his belongings out yourself and change the locks but he may be able to claim that you took part in an illegal eviction in doing so.
In such circumstances where two people are living together and are in a relationship, it’s rare that one party is charging the other rent. That’s too bad because if the boyfriend refused to pay rent, you would have a much easier time evicting him. In future relationships, you should come to some written or verbal agreement setting forth the obligations of each party. It could be as simple as having one person pay certain utilities or a few hundred dollars a month in rent. If the boyfriend refused to uphold those obligations, you simply serve him with a 3 day notice to vacate based on those grounds (nonpayment of rent – and nonpayment of rent includes nonpayment of utilities if paying for the utilities was their rent). If the boyfriend still refused to leave after the 3 day notice expired then you just bring an eviction action.
Where there is no written or verbal agreement specifying that the boyfriend pay rent, you cannot evict because of nonpayment of rent as there was no obligation to pay rent. Since there is no lease, Ohio law assumes that the boyfriend is on a month to month tenancy. You have at least a couple options in this case. You can provide him with 30 days written notice that his month to month tenancy is expiring; however, the law has a strange way of counting 30 days. Since there is no lease, Ohio law assumes that each month begins on the first of the month, and it requires that the landlord give a full monthly rental period’s notice.
So for example, if today were the 16th day of October and you provided the 30 days written notice of termination of month to month tenancy, your boyfriend would have to vacate by what day? If you said November 16 then you are wrong. Remember he has to get at least a full monthly rental period’s notice. A full monthly rental period’s notice would be from the 1st of the month until the last day of the month. Legally, your boyfriend would have until the last day of November to move out.
If he is still living there on December 1, at that point you would give him a 3 day notice to vacate on the grounds that he illegally held-over his tenancy since he didn’t comply with the 30 days written notice. After the 3 day notice expired you could file the eviction.
You could also try to avoid all this delay and get him out sooner by negotiating his departure. If money for a new place is an issue for him then you could offer to pay him money if he is out of your place by a certain date. You may want to put this in writing and you may not want to pay him any money until he has left and returned the key. Landlords have been known to do this with problem tenants as a way of saving a lot of time and money that the eviction process normally causes.
Estoppel: A Tricky Tenant Defense to Eviction
The tenant has been late paying the rent a number of times. The rent is due on the first of the month, but sometimes the tenant pays on the 1st, sometimes on the 5th, sometimes on the 10th, and so on over an extended period of time. Each time the landlord accepts the rent late without protest.
The landlord grows tired of this and the next month, when the rent is not paid by on the first of the month, the landlord posts the three day notice on the 2nd of the month and files for the eviction, refusing to accept the tenant’s rent offered on the 3rd day of the month.
The landlord walks into court, “secure” in the thought that he can show the court all of the times that the tenant has been late and figuring that the Court will be disgusted with the tenant for engaging in this sort of behavior.
But the landlord will likely walk out of the court disgusted with the court and this concept of “estoppel” upon which the court decided for the tenant. Here is how it works.
When a landlord and a tenant engage in a course of conduct that is different from the requirements of the written lease between them (in this case, accepting the rent late), after a certain period of time, the tenant will come to rely upon that course of conduct as being acceptable, and will plan his/her rent paying activities accordingly. This is especially the case since there is an element of the landlord’s consent in all of this, as indicated by the landlord’s acceptance of late rent without protest.
The tenant will argue that it is unfair for the landlord to deny this course of conduct between them which has the effect of pulling the rug out from beneath the tenant’s feet. All that evidence the landlord just presented showing the court the pattern of late rent payments works against the landlord. The cases on this subject agree with the tenant. The landlord will be estopped to deny the course of conduct that the landlord and the tenant engaged in with regard to the payment date in the lease agreement.
So what is a landlord to do? The landlord has two options. The first option would be to invent a time machine and go back in time and warn his former self not to accept rent late without protest. Consider the warning in this post to be just that.
But if this time traveling warning comes too late, consider the much simpler second option. Write the tenant a letter telling the tenant that in the past, you have accepted rent late, and that is all fine and good for the past. But in the future, you will expect that the rent will be paid on time just as it is stated in the lease agreement. Send this letter to the landlord, keeping a photocopy of the signed version of it, several weeks before the rent is next due.
Now if the tenant argues estoppel in a defense of the eviction action you file for failure to pay rent on time, you can pull out the photocopy of the letter you sent to the tenant and hand it to the judge or magistrate in charge of the eviction and tell that judge or magistrate that you have a letter of strict compliance sent out well before the next rental due date.
Now the tenant is going to have to come up with some other defense.
So don’t get frustrated or disgusted with the courts over the estoppel defense. Realize that your own conduct as a landlord in accepting the rent late all those months without protest had something to do with the position you find yourself in and work through the problem as outlined above.