Unlawful evictions


Conflicts often arise between landlords and tenants. In the ideal world, these conflicts would be limited to disputes about the obligations of each party to the other. But in the real world, personality conflicts between landlords and tenants can turn legal, with decisions to renew leases and even eviction actions being brought against a tenant for personal reasons.

There is an unfortunate tendency among rental managers to become a bit heady with the power that they can have over a tenant. While there is no excuse for a rental manager to make business choices based upon non-business reasons, it happens. While there is no law against terminating a month to month tenancy or not renewing a year’s lease because a tenant was rude to you, the law does provide for certain protections for tenants that a wise landlord needs to know about.

It’s only natural to get a bit up in arms when tenants complain about things, especially when the things they are complaining about are silly, inconsequential, or not anything promised in the lease agreement. It’s especially easy to become annoyed with the manner that certain tenants communicate these complaints to you. These people are not necessarily skilled in marketing, mediation, or even polite conversation.

Ohio Revised Code Section 5321.02(A) states that a landlord may not retaliate against a tenant by increasing the tenant’s rent, decreasing services that are due to the tenant, or bringing or threatening to bring an action for possession of the tenant’s premises because: (1) The tenant has complained to an appropriate governmental agency of a violation of a building, housing, health, or safety code that is applicable to the premises, and the violation materially affects health and safety; (2) The tenant has complained to the landlord of any violation of section 5321.04 of the Revised Code; or (3) The tenant joined with other tenants for the purpose of negotiating or dealing collectively with the landlord on any of the terms and conditions of a rental agreement.

In looking at this rule, the first thing that we need to note is that it’s not just the bringing of an eviction action in response to protected conduct which is prohibited. The landlord must also not increase rent, decrease services, or threaten an eviction in retaliation for the tenant’s protected activities. So you have to proceed as you normally would have proceeded had there not been a dispute with the tenant.

The tenant can use Ohio Revised Code Section 5321.02(B) in three ways. Firstly, the tenant can use the statute as a defense to an eviction action you bring against him. If he can convince the judge that the only reason that you are evicting him is because he complained about the place to the housing inspector, then the Judge will dismiss the eviction action. The tenant can also use the statute to recover possession of the premises if he has been thrown out for his protected activity, and, the tenant can use the landlord’s conduct to declare the lease and all its obligations terminated, and move out.

If the tenant is successful in convincing the judge that the landlord or his rental managers have engaged in prohibited conduct under Ohio Revised Code Section 5321.02, the tenant can recover his actual damages (if any) and attorneys fees. But to recover attorneys fees, the tenant must show actual damages. Cuyahoga Metro. Housing Auth. v. Watkins (1984), 23 Ohio App.3d 20. The burden of proof is on the tenant in these cases to show the landlord’s improper motive in taking the action.

How can a landlord or his agents protect himself against charges that he has acted in violation of this statute? The first line of defense is education. If you employ rental managers, you need to check on whether they know about this statute and its requirements. If you find gaps in the knowledge of your rental managers, you need to train them. I come across landlords and rental manager all the time who don’t know what they can and can’t do as landlords, and these people often end up losing a lot of money in real estate.

The second line of defense is documentation. The landlord’s alleged motivations in taking an action can be proven or disproven by direct evidence (rarely the case) or circumstantial evidence (more commonly the case). Blue v. Castlerock Props. (1996), 77 Ohio Misc.2d 1. Documentation is a type of circumstantial evidence. You and your people must have a system for keeping good documents reflecting everything that is going on around the apartment. When you write letters or send emails to tenants, you need to keep copies. If you have an oral conversation with a tenant, whether on the phone or in person, you need to make a note of it, reflecting the time and date it occurred, and the contents of the conversation. That way if there is some dispute about what was said, you can whip out your records and speak authoritatively about what went on.

Having good documentation has another benefit as well. It makes your rental managers understand that they and you will be held accountable for their actions. It reminds them constantly that they need to treat all of the tenants the same way, both the ones that they like and the ones that they don’t.

What wins in court is a combination of oral testimony and written documents to back it up. If a tenant argues at an eviction hearing that he is being tossed out because he complained about the common areas not being cleaned up by the landlord’s people, and you can produce a file showing all of your communications with that fellow, and that none of them related to the common areas, you are going to enjoy a lot more credibility than the tenant who cannot produce such documents.

The third line of defense is to think about each eviction you are going to file. Check your documents to see if that tenant has recently complained about anything. If he or she has, is this driving the decision to file the eviction? Will you be prepared to successfully argue to the court that there are permissible grounds for the eviction? Speak to the rental manager who wants to take the eviction action, and try to get a sense of his or her motivations.

When a tenant alleges a violation of Ohio Revised Code Section 5321.02, courts in Ohio consider certain factors in coming to their legal conclusions. One of the most important considerations is temporal proximity, that is, how close in time the landlord’s actions allegedly in violation of Ohio Revised Code Section 5321.02 were when compared to the tenant’s protected activity. But while temporal proximity is important, it is not decisive. No presumption of a violation arises just because the landlord tries to evict a tenant shortly after the tenant complained. Karas v. Floyd (1981), 2 Ohio App. 3d 4.

Ohio Revised Code Section 5321.02 does not protect a tenant whose against a landlord who does not care to renew the lease agreement at the end of the term. In the case of Associated Estates Realty Company v. Samsa, 2004 Ohio App. LEXIS 6098 (December 9, 2004) Cuyahoga Co. App. No. 84297, unreported, a tenant in an eviction hearing argued to the judge that the court should consider his argument that the landlord was evicting him because he complained about conditions around the premises. But the court held since the tenant was a holdover tenant, he was not entitled to the protections of the act. The court reasoned that nothing in R.C. 5321.02 precludes the non-renewal of a lease upon the expiration of a term of tenancy.

So the wise landlord will educate his rental managers regarding the law against retaliatory evictions, will keep good documentation of events as they occur, and will think carefully about every contemplated eviction to screen it for possible violations of Ohio Revised Code 5321.02.


There comes a time when an Ohio landlord may wish to regain possession of a residential apartment he has rented to a tenant. The only proper way to do this if the tenant refuses to leave is to file a statutory eviction action pursuant to Ohio Revised Code Section 1923.04. But some landlords take grave risks by trying to force the tenant out without the required legal process.

A “self help” eviction occurs when a landlord takes back possession of the rented premises without the permission of the tenant, and without resorting to the required legal processes. Where residential rental housing is concerned, self help evictions are illegal, pursuant to Ohio Revised Code Section 5321.15. Thus you cannot simply change the locks while the tenant is gone and throw all of his stuff into the dumpster behind the building. If a tenant can prove that you violated Ohio Revised Code Section 5321.15, you can be subject to a lawsuit for the tenant’s actual damages and attorneys fees.

The statute also prohibits a landlord from shutting off utilities in an effort to make the tenant leave, even if you don’t lock the tenant out. Some landlords make the mistake of turning off the water at the main or shutting off the power and assuming that since they have not actually excluded the tenant from the premises by locking him out, they are in the clear. But the statute specifically prohibits shutting off utilities in order to force a tenant out.

Further, a landlord cannot even threaten to lock the tenant out or shut off utilities. The statute clearly states that threats of a self help eviction are a violation of Ohio Revised Code Section 5321.15.

Further, the statute prohibiting self help evictions applies to tenants who have the right to occupy the premises and to tenants who no longer have the right to possession. So it is no defense to go to court on a 5321.15 lawsuit and tell the judge that the tenants were behind on the rent. If the tenant is in possession of the premises, you want him out, and he won’t leave, you have to go through the statutory eviction process.

What is a tenant likely to recover if you violate this section of the law? The Court may award the value of the tenant’s belongings (this could be tens of thousands of dollars if the Judge believes the tenant on what was removed). Judges will often not require a great deal of proof of the value of the lost items from the tenant because things like receipts and other proof would have been thrown out in the lock out.

You should also keep in mind that a claim for relief for violation of Ohio Revised Code Section 5321.15 may not be the only claim for relief in the lawsuit against you. You can also be sued for the common law intentional torts of conversion (the exercise of control over an item in a manner inconsistent with the rights of its owner which permanently deprives the owner of its value); trespass to chattels (the exercise of control over an item in a manner inconsistent with the rights of its owner which temporarily deprives the owner of its value); and trespass (the unlawful entry upon the property of another enjoying right to possession). Since these claims for relief are intentional torts, if the court finds liability and awards any actual (or even nominal) damages, the court may award punitive damages to the tenant as well as attorneys fees.

If you are the owner of property managed by another, you should also keep in mind that you can be held responsible for what your employees do if they are acting within the scope of your business. Thus if your rental manager robs a bank, you will not be responsible for that, but if your employee locks out a tenant and throws her stuff in the dumpster, you, as the owner of the property and the boss of the rental manager, will be a co-defendant in any litigation that the tenant brings.

To give you an idea of the damages which can ensue from violations of this sort, we need look no further than the case of Gordon v. Morris, 2001 Ohio App. LEXIS 338 (February 2, 2001) Greene Co. App. 2000-CA-69, unreported, a landlord changed the locks just before the end of the month upon learning that the tenants had shut off the utilities and removed most of their belongings. The trial court awarded the tenants only $ 96.77 in actual damages (they had paid rent through the end of the month but were deprived of the use of the apartment, and this was the prorated amount). But the trial court further awarded $1,000.00 in punitive damages and $1,462.00 in attorneys fees.

Ohio’s Second District Court of Appeals upheld the trial court’s findings. So the landlord in this case got taken for a $2,559.27 ride through the legal system, and this does not count the costs of the landlord’s attorney. The next time you are thinking of trying to save a little money and time by not going through the statutory eviction process, think of Mr. Morris and the money he spent to lose his case.

In the case of Hall v. Lacheta, 1992 Ohio App. LEXIS 5945 (November 18, 1992) Tuscarawas App. No. 92AP020013, the landlord first threatened to lock out the tenant, and then, after receiveing a letter from a lawyer telling him that this was and would be a violation of Ohio Revised Code Section 5321.15, he actually did lock out the tenant without an eviction. When the police forced the landlord to leave, he returned shortly thereafter and placed a large sign in the yard informing the public that the tenant was on welfare and was not paying rent.

The trial court awarded the tenant $3,000.00 in actual damages and another $3632.00 in attorneys fees. But Ohio’s Fifth District Court of Appeals decided that this was not enough where attorneys fees were concerned, and that the testimony at trial justified a higher award to be based upon $75.00 per hour, rather than $40.00 per hour. Further, the Court allowed the tenant to recover for time spent at the hearing to determine the proper amount of attorneys fees and upon attorneys fees expended in collection activities. These amounts do not take into account the money spent by the landlord on his attorney. So it was an expensive afternoon’s work locking out that particular tenant.

You should note that Ohio Revised Code Section 5321.15 applies only to residential rental property, and not to property rented to a commercial tenant. Landlord’s renting out commercial property may make use of self help evictions to get back possession of their property if they can do so without a disturbance of the peace. But you still take chances here because a tenant may sue you for the common law torts I mentioned above, and if a court later determines that the tenant should not have been locked out, you will have trouble.

The wise landlord will always opt for a statutory eviction process when trying to get rid of a tenant who will not leave. It may take a little longer, and it may cost a bit in filing fees, but it brings certainty and insulates the landlord from the above claims. The same is true of tenants who have left you with an apartment in a condition such that you are not sure if they are going to return. If you have any doubts, just do the statutory eviction and sleep better at night.


In Ohio, a person can always represent himself in court. This is called appearing “pro se” and is a common (though unwise) practice where very little is at stake, such as in small claims courts around the state. Why is it unwise? The two main reasons are that attorneys who regularly perform evictions will be a great deal more familiar with the ins and outs of the law than the lay person. Secondly, an attorney will see the case objectively, and a dispassionate eye is a more effective observer of events than the landlord who may see things subjectively, having his vision clouded by emotions.

B. Representing Other Persons or Entities

But to represent another person or another entity (such as a company, a trust, or an LLC), you must be certified by the Ohio Supreme Court to practice law or you are engaging in the unauthorized practice of law. This rule affects landlords whose property is owned by a corporation or managed by a rental company. Owning a property in a corporate form has become very popular lately as a way of limiting the landlord’s personal liability. This way, if the landlord is sued because of an injury at the property, the most he can lose is the value of the property (assuming his insurance isn’t enough to cover it). His personal assets cannot be touched.

In the past, some landlords tried to file evictions via their employees, or tried to file the actions themselves on behalf of the corporation owning the property. They reasoned that since they were the 100 percent owners of all the shares of the corporation, they should be able to represent it in court. The problem was that these employees and corporate shareholders were not attorneys.

1. Ruling from the Ohio Supreme Court

In the case of Cleveland Bar Association v. Picklo, (2002), 96 Ohio St.3d 195, Lynn Picklo had been filing complaints in the Cleveland Municipal Court, Housing Division, for forcible entry and detainer [evictions], as well as for the recovery of past due rents. Picklo was not licensed to practice law in the state of Ohio, but she nevertheless filed these claims and appeared in court on behalf of the property owner since she was the rental manager.

Ms. Picklo argued that R.C. 1923.01(C)(2), which defines “landlord” for the purpose of invoking a county, municipal, or common pleas court’s jurisdiction in most forcible entry and detainer actions as “the owner, lessor, or sublessor of the premises [or] the agent or person the landlord authorized to manage premises or to receive rent from a tenant under a rental agreement.”

She also cited R.C. 5321.01(B), which, with respect to landlord-tenant remedies in general, similarly defines “landlord” as “the owner, lessor, or sublessor of residential premises, the agent of the owner, lessor, or sublessor, or any person authorized by the owner, lessor, or sublessor to manage the premises or to receive rent from a tenant under a rental agreement.” She argued that since she was the rental manager, she was the “landlord” and thus was entitled to bring the lawsuit on behalf of the owner of the property.

It was a clever argument, but in the end, it would not wash with the Ohio Supreme Court. Under the Constitutional doctrine of Separation of Powers, the Ohio Supreme Court has the inherent power to determine who can practice law before the courts of Ohio. While it was true that the Ohio Legislature passed laws in conflict with the Ohio Constitution, the Ohio Constitution wins out in the case of such conflicts. The reason for this is because the Ohio Constitution is the document that set up the Ohio Legislature in the first place. The Ohio Legislature draws its ability to pass laws from the Ohio Constitution, and thus it cannot make laws contrary to the Ohio Constitution.

So Ms. Picklo was found to be engaging in the unauthorized practice of law, and since that time, all evictions filed by persons not the owners of the property require the services of an attorney licensed to practice in the state of Ohio.

II. Eviction Complexities

There are other good reasons to hire an attorney to do evictions, even if the property is owned in the landlord’s name (thus permitting pro se representation).

A. Three Day Notice Requirement and Issues of Timing

One is the three day notice requirement. Most landlords in Ohio realize that they must post a properly worded three day notice to vacate upon the rented property before they can file an eviction. But few landlords have a good grasp of the timing issues as they apply to the calculations of the three days.

Firstly, the three days do not start to run on the day that the three day notice is posted. Secondly, any day in which the court is not open does not count as a day. Let’s look at an example of how this works.

1. Example of Three Day Notice Timing

Larry Landlord has a tenant who has not paid his rent. On January 12, 2006, he posts a properly worded three day notice to vacate upon the door. The day of the posting does not count towards the three days. Friday, January 13, 2006 will be the first day of the three day period which counts. Saturday and Sunday will not count. Monday, January 16, 2006 will not count either because it is Martin Luther King Day, a national holiday upon which the court is closed. So Tuesday, January 17, 2006 will be the second day, and Wednesday, January 18, 2006 will be the third day.

If Larry Landlord has an attorney, that attorney will know that the eviction cannot be filed until the next Thursday, January 19, 2006, seven days later. But if Larry does the eviction alone, he might think that filing it on Tuesday, January 17, 2006 would be fine since more than three days will have passed.

If, at the hearing, the error is pointed out by the tenant, the tenant’s attorney, or noted by the court, the eviction action will have to be dismissed. All of the filing fees spent on the eviction will be lost, the eviction will have to be filed again, and the tenant will walk away from the first eviction hearing with a new found confidence that he can beat any eviction that the landlord throws at him. Better then to use an attorney and only have to handle the matter once.

B. Thirty Day’s Notice Sometimes Required.

Another timing issue arises in relation to the type of breach that the landlord is alleging. If the landlord is alleging a breach of the rental contract, then all that is necessary to start the eviction process is the posting of a properly worded three day notice to vacate. But if the landlord is alleging that the tenant breached the tenant’s duties under Ohio Revised Code Section 5321.05, then the landlord must first notify the tenant in writing of the problem and give the tenant 30 days to fix it. Only then can the three day notice be posted on the door to start the eviction process.

Some landlords have tried to be too clever by half. They have inserted the text of Ohio Revised Code 5321.05’s duties of the tenant into the lease agreement word for word, which enables the argument that any breach of R.C. 5321.05 would also be a breach of the lease agreement. But Ohio courts have seen through this and ruled that if the violation is a breach of both the law and the lease, the landlord must still give the 30 day notice.

Let’s look at two examples.

1. Unauthorized Dog

Larry Landlord has a lease which prohibits the tenant from having a dog. Larry finds out that the tenant is violating this portion of the lease agreement. This is not a violation of Ohio Revised Code Section 5321.05 which says nothing about dogs. Thus, Larry Landlord does not need to give 30 day’s notice before posting the three day notice to vacate.

2. Unsanitary Conditions

Larry Landlord has a lease agreement which says that the tenant shall keep all plumbing fixtures (sinks, toilets, tubs, etc.) in a clean and sanitary condition. During an inspection of the rented premises, Larry notices that the tenant is living like a complete pig, and that the plumbing fixtures are in an appallingly unsanitary condition. Larry would love to post the three day notice and get the eviction process going right away. But Ohio Revised Code Section 5321.05(A)(3) imposes a duty upon the tenant to “Keep all plumbing fixtures in the dwelling unit or used by him as clean as their condition permits . . .”.

Thus the tenant is violating both the lease and R.C. 5321.05(A)(3). Ohio Revised Code Section 5321.11(A) requires 30 days written notice from the landlord to the tenant to remedy any breach of the tenant’s duties under Ohio Revised Code Section 5321.05. So Larry Landlord is going to have to give 30 days written notice to the tenant before he can post the three day notice to vacate. If the tenant remedies the problem within those thirty days, then the tenant will have a defense to the eviction.

C. Tips for the Wise Landlord

So the wise landlord hires an attorney to perform all of his or her evictions. In this way you can be more certain that the eviction will be done right and that possession will be returned to you as soon as possible.

Where can you find such an attorney? There are several places. You can contact your local bar association and ask to be referred to an attorney who regularly performs evictions. If you call any large apartment complex, the rental managers there will more than likely refer you to the attorney they use. If you know an attorney personally, even if he or she does not conduct evictions, he or she will very likely know someone who does.