Common Eviction questions and answers
1. I am an out of state landlord with property in Ohio, can you help me?
We can help you and, in fact, have helped many out of state landlords with their Ohio Evictions. We perform evictions in other counties besides Franklin County as well. With the decline in the housing sales market, we have seen an increase in homeowners who have rented their property and moved out of state. If you have done so and now are faced with a tenant who is refusing to pay rent or live up to the obligations of the lease, contact us and we can help.
2. How do I calculate when the three day notice to vacate expires?
The day of posting does not count. Weekends and legal holidays do not count when determining when the three day notice expires. For example, if you posted the three day notice on a Friday then Friday, Saturday and Sunday would not count. The three day notice would expire at the end of the day on Wednesday (provided that a legal holiday did not take place on Monday, Tuesday or Wednesday). You could file your eviction complaint on Thursday. If you file your eviction complaint prior to the three day notice expiring then the court can dismiss your complaint and you have to start over.
3. What are the court fees associated with filing an eviction in Franklin County?
There is a filing fee of $133, a red tag fee of $35 and a set out fee of $45. These are fees that the court charges for the eviction process. I generally recommend that the landlord wait on paying the $45 set out fee until it is absolutely necessary. Most tenants will move out on their own following the eviction hearing and service of the red tag. If you pay for the set out in advance and later end up not needing one, the court will not refund your set out fee.
4. How long does the typical eviction process take? What is the typical eviction timeline?
In Franklin County (after the 3 day notice has expired), only then can you file an eviction complaint. You will usually get an eviction hearing within 2-3 weeks of filing your eviction complaint with the court. Franklin County will grant a continuance (generally up to one week) if the tenant asks for one (usually for the purposes of securing legal counsel). After the eviction hearing, the landlord applies for a writ of restitution (aka red tag). The bailiff will post the red tag within 2 business days of the eviction hearing/filing of application for the red tag. Once the red tag is posted, the tenant has 5 days to leave the premises (including weekends and holidays). If the tenant fails to leave, the landlord must contact the bailiff to schedule a set out. A set out will usually be scheduled for 2-3 business days after the landlord calls in to the bailiff’s office.
5. How is the tenant notified of the eviction hearing?
The court bailiff will post a copy of the summons and eviction complaint at the rental address. The clerk of courts will also send out a copy of the court summons and complaint via ordinary mail to the tenant. Your eviction lawyer is not involved in notifying the tenant of the eviction hearing. That is the court’s job. The court does this on its own time schedule of which I am not aware. Suffice it to say that the tenant will be notified of the hearing well before the hearing date. The tenant may claim that he did not receive the court notification. The tenant has also probably claimed that he paid rent in the past as well.
The court will also send a hearing notice to the lawyer or to the landlord, if the landlord does not have a lawyer. You can also check on your hearing date by visiting the municipal court’s website and looking up your case.
6. Do I (landlord) need to attend the eviction hearing?
If you are local, I generally recommend that the landlord attend the eviction hearing as well. Although I may be your attorney and representing you at court, I cannot testify on your behalf. There is a general prohibition against acting as an attorney and a witness in the same case. You can choose not to attend. If that is the case, I will submit an affidavit to you wherein you testify that you served the three day notice on such and such a date; that, at the time, the tenant was late on rent; the tenant is still behind on rent; and that the tenant is still in the property.
If you are out of state and own property in Ohio, I will try to proceed with either my notice server (if you hired him to post the 3 day notice) or an affidavit from the landlord. Not all courts allow affidavits to substitute for live testimony. Some courts require live testimony. Franklin County will allow an affidavit to prove certain facts. My notice server can generally just testify to the fact that he posted the notice. He does not know the ins and outs of your particular landlord tenant relationship beyond that.
If the tenant shows up at the hearing and testifies that he or she never received the three day notice or testifies contrary to any of the other material facts as stated in the landlord’s affidavit then I will have to ask for a continuance so that the landlord can attend the hearing and give live testimony as to the fact(s) in dispute (and no, you cannot testify over the phone and no, you cannot submit a bunch of text messages, emails, or other documentation without being present at court to authenticate those items. If my notice server is with me in court, he can, of course, contradict the tenant on the posting of the notice. He generally can’t contradict fantastic lies of the tenant involving how the tenant is current on rent or how the tenant made some deal with the landlord to let him stay, etc. If the affidavit and/or my notice server’s testimony proves insufficient then the landlord will have to show up at court at a later date. That being said, I’m generally able to process a good percentage of evictions without the landlord attending the hearing.
Why is this? Judges often prefer live testimony over affidavit testimony, and the opposing side can question a witness. An affidavit cannot answer questions posed to it and the opposing side has the right to question witnesses for the landlord just like the landlord has the right to question the tenant and the tenant’s witnesses. So you can risk not attending but it may delay the eviction process.
8. I hired you as my attorney, can’t you testify for me?
As an attorney, I represent you at court. This means that I present your case to the court. I do not testify on your behalf because I don’t have any FIRSTHAND knowledge of your situation. My knowledge of your situation comes from your mouth or your emails or just from you, in general. Courts want FIRSTHAND knowledge supporting any testimony. Courts want the testimony to come right from the horse’s mouth, i.e., the source. Why? Because you, the landlord, are the one that has personally dealt with the situation and the tenant.
9. Where is the Franklin County Eviction Court located and when does court start?
375 S. High St., Columbus, Ohio 43215, Courtroom 11a, 11th floor. Eviction court begins at 9 am.
10. Can the tenant delay the hearing?
Franklin County generally allows each party to the eviction to continue/postpone the hearing once. If the tenant shows up and provides a reasonable excuse for delaying the matter then the court will generally grant this first request.
11. What happens at the eviction hearing?
As a landlord, you will be asked whether you posted the three day notice on a certain date, whether the tenant was behind on rent at that time, and whether the tenant is still in the premises. Generally, the answers to all these questions are yes. It’s a good idea to check the rental unit as close to the hearing date as possible to determine if the tenant is still in the premises or just call the tenant and find out. The tenant will be asked if he/she has any defenses to the eviction and will be given a chance to present those defenses. Generally, tenants make the mistake of bringing up repairs that are needed. This is not a defense to a nonpayment of rent eviction unless the tenant has followed the procedures set forth concerning notifying the landlord of the repairs in writing and escrowing the rent. If the tenant, however, has a legitimate defense, the court will have the lanlord respond.
12. What will not happen at the eviction hearing?
An eviction action is generally composed of two separate parts. The first hearing is for the sole purpose of determining whether the tenant stays in the unit or is forced to leave. If you choose to pursue your tenant for damages, that would take place in a second hearing. A second hearing is scheduled in most courts if the tenant files an answer to the complaint with the court or if the landlord files a motion for default judgment. The matter is divided up into two parts because a landlord will not know the full extent of his/her damages until after he/she has regained possession of the premises (after the tenant moves out) and inspected the unit.
Some landlords worry that the amount requested in the complaint must be changed if another rental payment due date comes and goes before the eviction hearing takes place. Generally this is not a problem as the amount requested in the complaint will change anyway because at the time the complaint was filed, no one knew what damages resulted to the unit because possession had not been obtained by the landlord. In other words, no inspection of the premises took place at or before the complaint was filed. In addition, the tenant will likely cause more damage between the time the complaint is filed and when the tenant vacates, e.g., trash left behind, damages as a result of moving, additional utilities used, etc.
14. What happens after the eviction hearing?
If the eviction is granted, then the landlord applies for a red tag (writ of restitution). The bailiff will post the red tag 1-2 days after it has been paid for by the landlord. From the point it is posted, the tenant has five days to vacate the premises. If the tenant fails to vacate in that time, the landlord can pay for and schedule a set out. If the tenant vacates on his own within the 5 day period, then the landlord can retake possession of the premises without the aid of a set out.
The tenant can and likely will remove the red tag. So if you drive by to determine if the red tag has been posted, the tenant may have removed it. The tenant’s removal of the red tag does not affect the validity of its posting.
An eviction action generally consists of two hearings. The first hearing is to determine who gets possession of the premises. Because a landlord cannot fully assess his damages until he/she gets possession of the premises, a second hearing is often scheduled after the first hearing to determine what the tenant owes in damages (back rent, future rent, late fees, repairs beyond normal wear and tear, etc.). Courts typically schedule a second hearing if the tenant files an answer to the landlord’s eviction complaint. Generally, if no answer was timely filed then the landlord would move for default judgment for the amount owed. A second hearing date does not necessarily meanthat the tenant sued the landlord.
After the landlord gets possession of the premises, he/she should make an itemized list of damages to get ready for the second hearing. I strongly recommend getting this out to the tenant within 30 days of their move out so that the landlord can avoid any claim of wrongful withholding of the security deposit. Of course, the tenant would need to provide written notice of their forwarding address as well.
15. If the red tag expires and the tenant is still in the premises, can I enter the premises?
If the tenant has completely moved out of the premises, then you can retake possession of it at that time. If it still appears that the tenant is living there or still in the process of moving out, then you would need to schedule a set out with the bailiff and complete that set out prior to retaking possession of the premises.
You can always enter the premises at any time so long as you have given 24 hours advance written notice of your intent to do so. In an emergency situation, you can enter the premises with no notice or as much notice as you can provide if less than 24 hours notice.
16. Should I pursue my tenant for damages such as unpaid rent, late fees, repairs, etc.?
Most landlords are content just to get possession of the apartment back and that’s because it’s easy to get a judgment saying that a tenant owes you $x amount of dollars but it’s another thing to collect upon that judgement. You’ll need to keep track of the tenant’s whereabouts after the eviction or know where the tenant works if you plan on trying to collect what is owed. Most tenants who have been evicted have a hard time keeping steady employment as well and would happily quit their $8 an hour job once garnishment proceedings started rather than give the landlord the satisfaction of seeing any of what is owed.
17. I haven’t seen a red tag posted on the property despite checking several times. How do I know if one was issued?
Visit Franklin County Municipal Court’s website and search for your case via the Courtview Public Access system. Once you find your case, click on it and scroll down to the Docket towards the bottom. It will show you when the Writ of Restitution (red tag) was issued. As indicated above, the tenant may have removed the red tag before you noticed it there.
18. What is the process for scheduling a set out in Franklin County?
After applying for the set out at the clerk of courts office, the landlord can generally call in to the service bailiffs the following day. Their number is (614) 645-7780. Call between 8am and 9:30am to schedule your set out. You will be asked if the tenant is still in the premises and when you last checked. At the set out’s scheduled time, you will need to have four total people ready to move out the tenant’s belongings along with boxes, trash bags and (if rain is threatening) tarps.
19. Where do I find people to help me carry out the set out?
If you don’t have a maintenance crew, consider hiring a reputable moving company. Explain the situation to them and indicate that you won’t know the exact date and time of the set out until you call up the bailiff.
20. Is there a means for scheduling an immediate set out in Franklin County so I don’t have to wait for the red tag to expire 5 days after posting?
If the circumstances warrant it, you can request an immediate set out from the magistrate hearing the case at the time of the eviction hearing. As with almost any matter in municipal court, “immediate” still means that you have to wait. For example, I was able to get an immediate set out where the tenant had agreed to be out on a certain date (3 weeks after the initial eviction hearing), failed to leave, had agreed to an immediate set out in the original settlement agreement and was selling the landlord’s furniture and other property (located in the apartment) to support a drug habit. The second eviction hearing occurred on a Thursday and we were able to call in and schedule the set out on the following Monday. A red tag still must be posted on the property. The bailiff still wants to give the tenant at least 24 hours notice that a set out will be happening. You will also have to pay for both the red tag and the set out.
21. The Franklin County Service Bailiffs don’t seem to be responsive and the tenants are threatening to destroy my property if they are not given more time to move out. What can I do?
I’ve had a situation where a landlord was unable to schedule a set out because the service bailiff for his area had called in sick for the day. In the meantime, the tenants were threatening to destroy his property if they were not given more time to move out, and the tenants had already kicked in the front door and hacked through the garage door with a butcher’s knife. Fed up, the landlord called the Columbus Police Department to aid him with the set out. He told them of the tenants’ threats and that he was going over to defend his property. The police could show up now or later when the tenant made a false 911 call (which she, in fact, later did do). The landlord arrived at the property with eight or nine others ready to move the tenant out. Fortunately, the police showed up at the same time. After talking with the tenants, the police determined that it was time for them to move out (red tag had already expired as well). The landlord changed the locks, bolted the front door shut, and set the tenants’ belongings out in the yard. The tenants spent the night on the driveway and finally obtained a uhaul the next morning. The tenant had previously delayed the eviction hearing and the original three day notice to vacate had been posted over a month before. Sometimes, a hard slap of reality is what is needed to get people to do something. In this case, the Columbus Police helped with the set out. They may not do so in your situation.
22. How can I keep track of what’s happening on my eviction case?
You can go to www.fcmcclerk.com and click on the “Public Access” link. From there you can perform a search either with your name, the tenant’s name, the case number or other criteria. Once you find your case, click on the “Dockets” or “Events” tab and you will see upcoming hearings and what has been done in your case. The best time to access the public access section is during non-business hours.
23. I’ve asked some questions of the clerk of courts and they indicate that they can’t give me legal advice. Why is this?
Generally, individuals working at the clerk of courts are not attorneys and therefore cannot give legal advice. Even if they were attorneys, they would still not provide legal advice as an attorney client relationship would first need to be formed prior to giving legal advice. Finally, if you were to misunderstand their advice or if they were to misunderstand your question, they would not want you to go to the judge and indicate, “Well, the clerk of courts told me to do it this way,” as an excuse for a mistake in the eviction process. The clerk of courts cannot refer you to attorneys either.
24. How does the tenant become aware that an eviction has been filed?
The clerk of courts serves a copy of the summons and the complaint upon the tenant soon after the eviction has been filed.
25. Should I offer my tenant money to move out instead of filing an eviction?
I’ve known several landlords who tell their problem tenants that they will pay them x amount of dollars if they move out by a certain date and leave the place in good condition. These landlords do this in hopes that they can save money and time by not proceeding with an eviction. This may work for you; however, some tenants may view it as a sign of weakness and misinterpret the offer as your lack of resolve to file an eviction.
26. I’m waiting for my eviction hearing date which is 2-3 weeks away, what can I do in the meantime?
As a landlord, you can contact the tenants and indicate that you have filed for an eviction against them. You can tell your tenants that if they move out prior to the hearing, you will dismiss the eviction action (first cause of action only) against them. By dismissing the eviction part of the case, you are giving your tenants a better chance to find another apartment. If this is not enough incentive for your tenants, you may consider offering them money to leave early (see above). Many times, tenants cannot leave early as they need money for a security deposit at a new place. Another option may be to indicate to the tenants that if they leave early, you will not pursue them for damages after the eviction.
27. My tenant has obtained an attorney from legal aid. How will that affect the eviction process?
Legal aid generally will try to delay the case as long as they can by seeking a one week continuance at the first hearing. They will also attempt to move the case to the end of the morning’s docket in hopes that the landlord will become more reasonable by waiting longer. They will point out weaknesses in the case and attempt to obtain a resolution. They may attempt to threaten conducting depositions or an appeal in hopes of frightening the landlord into a settlement. You can generally expect the first hearing to be continued to a later date and should plan accordingly. Most likely, the first hearing will be continued until one week later.
28. I would like to proceed with collecting on the judgment. What is involved in this process?
If the tenant has not responded by filing an answer to the eviction complaint then a motion for default judgment would be filed with the court. If this is granted, then you would need to go forward with collection procedures. If you know where the tenant is working, you can proceed with a wage garnishment. The first step of this process involves serving the tenant with a 15 day demand form, which is a notice of a court proceeding to collect debt. You can serve the tenant at his or her place of employment with this form or at their current address. If the tenant does not respond with 15 days of being served with this form then you proceed with wage garnishment. In Franklin County there is an $85 garnishment fee charged by the court. Check your county court for their particular garnishment fee.
29. Will the court award us all the costs of this eviction and what about unpaid electric or water bills?
Remember that an eviction action consists of two court hearings. The first hearing just concerns who has the right to possession of the premises. The second hearing (if it is scheduled) concerns damages. Evictions are divided up into two hearings so that once the landlord gets possession of the rental premises, he can determine all of his damages at that time. If you are successful at the damages hearing, the court will also award your costs (such as filing fee, red tag and set out fees) but generally will not award attorney’s fees. You can also ask for unpaid utility bills as part of the court award. Other typical damages include unpaid rent, late fees, damage to the premises, etc.