Landlords want to obtain the best result possible when proceeding against a former tenant for damages owed. In order to do so, they need to immediately get to the crux of the matter by laying out what is owed and why it is owed in an organized and efficient manner. This seems like a simple concept but you might be surprised at how confusing some landlords make the process.
The first concept to understand is the burden of proof. A landlord must prove by a preponderance of the evidence (or the greater weight of the evidence) damages to the premises caused by the tenant that are beyond ordinary wear and tear. What is ordinary wear and tear? The concept and its meaning may differ from judge to judge. It is safe to say that ordinary wear and tear is what is reasonable and damage beyond ordinary wear and tear is what is considered unreasonable.
Horton Properties, LLC and Sheryl and Richard Horton brought an eviction action against Thad Bailey and Todd Bradley in approximately July 2012. Eviction actions are typically relatively run of the mill affairs, and tenants rarely show up at court to fight them. Fewer still file an answer to an eviction complaint. Even fewer file a counterclaim against their landlords alleging that the landlords entered into rental agreements with the tenants; attempted to collect rents after doing so; undertook a systematic and ongoing campaign of harassment against the tenants demanding rent, demanding increased rent, and fraudulently collecting rents; and filing an eviction action against the tenants.
These all seem like perfectly legal practices for a landlord to engage in except that the tenants allege that the landlord engaged in them after the landlord had lost the property in foreclosure. You read that right. Horton Properties, LLC, Sheryl Horton and Richard Horton are alleged to have entered into lease agreements, collected rent, demanded rent, harassed tenants for rent, and filed evictions for property that they no longer legally owned.
The tenant’s counterclaim alleges that 3096 Northwest Boulevard in Upper Arlington, Ohio was/is the subject of foreclosure litigation in the Franklin County Common Pleas Court (Case no. 09CVE012529). A review of Franklin County Common Pleas Court records reveals that a default judgment in the foreclosure case was entered against Horton Properties, Sheryl Horton and Richard Horton on October 1, 2009 (almost three years prior to the eviction action being filed against the tenants by the Hortons).
A further review of the court record in the foreclosure case reveals that the court confirmed the sale of the property in question on April 26, 2012. According to that document, the sheriff’s sale occurred on February 10, 2012.
A timeline created from court records provides the following sequence of events:
Aug. 19, 2009 – Foreclosure action filed by US Bank v. the Hortons;
Oct. 1, 2009 – Court enters default judgment against the Hortons as they failed to defend;
Feb. 10, 2012 – Foreclosed property is finally sold at the last of several sheriff’s sales;
March 10, 2012 – Last day for Hortons to redeem the property;
April 26, 2012 – Common Pleas Court enters entry confirming sheriff’s sale;
July 2012 – Hortons file eviction action against tenants who were residing at foreclosed property.
It seems like a question would have been raised in the mind of a landlord on or about Oct. 1, 2009 concerning ownership of the rental property when the court entered default judgment against the landlord. If not, the numerous notices of sheriff’s sales may have been cause for concern. At the very least, the court’s confirmation of the sheriff’s sale might have given some pause to a landlord that perhaps this property no longer belonged to him and that filing an eviction action against tenants at the foreclosed property would have been a poor decision. Now the landlord faces counterclaims for unlawful evictions; harassment; fraudulently collecting rents; and more.
It seems like a rare case but tenants should attempt to determine whether a landlord truly owns the rental property in cases where a foreclosure action may be pending. If a court confirms a sheriff’s sale regarding the rental property, a landlord’s right to collect rent, perform evictions, enter into lease agreements, threaten eviction has been terminated. More importantly, a tenant may have grounds for a suit alleging fraud, engaging in an illegal self-help eviction, as well as harassment against the former landlord.
Award of Attorneys Fees Mandatory when Landlord Engages in Self Help Eviction on Residential Property
Ohio law makes it illegal for a landlord to throw a residential tenant out of his or her apartment without going through the statutory eviction process as outlined in Ohio Revised Code section 1923.04. Thus R.C. 5321.15 provides:
(A) No landlord of residential premises shall initiate any act, including termination of utilities or services, exclusion from the premises, or threat of any unlawful act, against a tenant, or a tenant whose right to possession has terminated, for the purpose of recovering possession of residential premises, other than as provided in Chapters 1923., 5303., and 5321. Of the Revised Code.
(B) No landlord of residential premises shall seize the furnishings or possessions of a tenant, or of a tenant whose right to possession has terminated, for the purpose of recovering rent payments, other than in accordance with an order issued by a court of competent jurisdiction.
(C) A landlord who violates this section is liable in a civil action for all damages caused to a tenant, or to a tenant whose right to possession has terminated, together with reasonable attorney fees.
In the case of Gaitawe v. Mays, 2012 Ohio 4749, the trial court ruled that the landlords violated R.C. 5321.15, finding that they did not have legal authority to remove Defendant’s belongings or change the locks” to the house. But the trial court refused to grant the tenantâ€™s request for attorney fees because it found that the tenant was not a particularly credible witness.
Ohioâ€™s Second District Court of Appeals held that several Ohio appellate courts have found that when a landlord violates R.C. 5321.15(A) or (B), R.C. 5321.15(C) mandates the award of reasonable attorney fees:
“‘Pursuant to R.C. 5321.15(C), a landlord is liable for the necessary legal fees incurred by a tenant who seeks legal redress for a landlord’s violation of R.C. Chapter 5321.'” Crenshaw v. Rowland, 196 Ohio App.3d 717, 2011 Ohio 5942, 965 N.E.2d 341, Â¶ 13 (6th Dist.), quoting Thomas v. Papadelis, 16 Ohio App.3d 359, 360, 16 Ohio B. 413, 476 N.E.2d 726 (9th Dist.1984). Accord, Filyo v. Cannon, Fifth Dist. No. 95 CA 1, 1995 Ohio App. LEXIS 6085, 1995 WL 776946 (Dec. 21, 1995); Ingram v. Glaser, 2d Dist. No. CA 12235, 1991 Ohio App. LEXIS 916, 1991 WL 30227 (Mar. 6, 1991).
In fact, even when a tenant has actually incurred no out-of-pocket attorney fees, the amount of fees determined to be proper should be awarded directly to the attorney or organization that provided the legal services. Lewis v. Romans, 70 Ohio App.2d 7, 433 N.E.2d 622 (1980).
The trial court also supported its decision not to award attorney fees to the tenant with the fact that the tenant provided no evidence at trial as to what her attorneys fees were. But the Second District Court of Appeals overruled that as well, stating that the the Ohio Supreme Court has held that “[a]ttorney fees awards made pursuant to R.C. 5321.16(C) are to be assessed as costs.” Christie v. GMS Management Co., Inc., 88 Ohio St.3d 376, 2000 Ohio 351, 726 N.E.2d 497 (2000), syllabus.
The Supreme Court reasoned that under common law attorney fees were in the nature of costs rather than damages. Id. at 378, citing Beacon Journal Publishing Co. v. Ohio Dept. Of Health, 51 Ohio St.3d 1, 3, 553 N.E.2d 1345 (1990). Furthermore when a statute authorizes the award of attorney fees, it does so by allowing the fees to be taxed as costs rather than awarding the fees as damages. Id., citing Beacon, at 3; Sorin v. Warrensville Hts. School Dist. Bd. of Edn., 46 Ohio St.2d 177, 179, 347 N.E.2d 527 (1976); State ex rel. Michaels v. Morse, 165 Ohio St. 599, 607, 138 N.E.2d 660 (1956). Finally, the Court noted that the legislature could have expressly stated that attorney fees are recoverable as damages, and absent express language to that effect, “we are unwilling to depart from our long-standing practice of treating statutorily authorized attorney fees as costs.” Id. We see no logical reason for attorney fees awarded in actions under R.C. 5321.15 to be handled differently than those awarded under R.C. 5321.16.
Because attorney fees are assessed as costs rather than as damages, a tenant is not required to offer evidence of the amount of those attorney fees at trial. Berlinger v. Suburban Apartment Management Co., 7 Ohio App.3d 122, 126, 7 Ohio B. 155, 454 N.E.2d 1367 (8th Dist.1982). Ohioâ€™s Second District Court of Appeals concluded that an evidentiary hearing may be held to determine the reasonable amount of attorney fees to be awarded following a judgment finding that the tenant is entitled to attorney fees.
Can I File Objections Under Civ. R. 53 to a Magistrate’s Decision Granting Possession in an Eviction?
Ohio Civil Rule 53 allows for judges of Ohio courts to appoint magistrates to hear cases for them and to make recommendations to them as to what they saw and who should win the case. The judges then review these decisions and if they agree with them, they sign off on them and they become an entry of the court with the full force of law.
Normally, there is a safeguard under Civ. R. 53 which states that once a Magistrate rules in a case, either side has 14 days from the ruling to file objections with the Court. The judge in the case will then read the Magistrate’s Decision, the objections, and any memo contra to the objections that the other side filed, and determine what to do with the case.
But in the matters of an eviction, Ohio Courts have ruled that since evictions are summary proceedings, the normal rules of civil procedure to not apply. In the case of Olympic Realty v. Zaleski, 2013 Ohio 1245, Ohio’s Tenth District Court of Appeals considered a case wherein the magistrate at the trial court granted possession to the landlord and the court would not consider the tenant’s objections under Civ. R. 53:
“The next issue is the application of the Ohio Rules of Civil Procedure to the summary action of forcible entry and detainer. HN3Go to the description of this Headnote.Civ.R. 1(C), referring to the scope and applicability of the civil rules, states an exception to their use where “they would by their nature be clearly inapplicable, shall not apply to procedure * * *, (3) in forcible entry and detainer.” Forcible entry and detainer was accepted because it was designed to be a summary action allowing speedy relief. Adding procedure through objections that could be independently raised in another action could delay and hinder the efficacy of a forcible entry and detainer action. A direct defense can be inserted in the action, such as payment of the rent when non-payment is the reason, or an [**8] unlawful discrimination that is specifically applicable, such as race, or national origin where appellant was excluded for that reason. See Miele v. Ribovich, 90 Ohio St. 3d 439, 2000 Ohio 193, 739 N.E.2d 333 (2000).
It is not a violation of the Civil Rules or rules pertaining to objections to a magistrate’s decision to develop a form report such as the one used in this case and for the trial court to summarily review it and enter judgment immediately. Since the normal objection procedure would encumber the speedy nature of a forcible entry and detainer action, it is not error for the trial court to adopt procedures helpful in enhancing that goal. When an issue had been raised by pleading a viable defense, it would be part of the record of the case. A viable defense was not asserted prior to or within the hearing. The alleged defense, which was untimely raised, was not a defense to this action. Appellant’s first assignment of error is overruled.”
The Court reasoned that since eviction proceedings in Ohio were designed by the legislature to be quick determinations of who has the right to occupy the property, applying civil rules that would slow down the process would not be proper.
In the case of Bierl v. BGZ Assocs. II, LLC, 2013 Ohio 648, the guest of a tenant at an apartment complex hurt her knee when she stepped on a brace attached to a dumpster at an apartment complex. The trial court granted the landlord’s motion for summary judgment on June 19, 2012. The trial court found that the dumpster area was not part of the leased premises and accordingly ruled that the Landlord-Tenant Act did not apply to the trip and fall accident.
But the tenant appealed and Ohio’s Third District Court of Appeals reversed the trial court’s ruling. The Court of Appeals held that at common law, a landlord generally owed no duty to a residential tenant or his guest. Shump v. First Continental-Robinwood Assocs., 71 Ohio St.3d 414, 417-18, 1994 Ohio 427, 644 N.E.2d 291 (1994). But the Court noted that the General Assembly partially abrogated the common law with the enactment of the Landlord-Tenant Act, which is codified in R.C. Chapter 5321. Id. at 419. The statute provides, in pertinent part, as follows:
“(A) A landlord who is a party to a rental agreement shall do all of the following:…
(3) Keep all common areas of the premises in a safe and sanitary condition[.] R.C. 5321.04(A)(3).
Pursuant to R.C. 5321.01(C), a “residential premises” is defined as:
A dwelling unit for residential use and occupancy and the structures of which it is part, the facilities and appurtenances in it, and the grounds, areas, and facilities for the use of tenants generally or the use of which is promised the tenant.”
Whether you are a landlord or a tenant, the key is to have an organized presentation of the evidence that supports your position and to never lose sight of your goal.
First, Courts and their proceedings are open to the public. As such, if you want to see how your local court handles Rent Escrow hearings, call the clerk’s office and ask when the next one is and sit down and watch.
Second, think about what evidence there is that proves that what you are saying is true. Then think about how best to capture that evidence so that it can be shown to the court. Will pictures work, or should there be a video? Did you get receipts from the repair person showing what was done if you are the landlord? Will the repair guy be available to come in an testify if needed?
Third, have you made four copies of each piece of evidence you intend to present (one for the witness, one for you, one for the court and one for the other side?)
Fourth, is all of your evidence set up in a notebook so you can turn right to it and pop it out when needed?
You should have an outline of you opening argument (a road map of your case, not the journey). You should have an outline of your closing argument (wherein you sum up the evidence and the law for the court and urge that the court rule in your favor).
Lastly, you have to keep in mind at all times that this is about persuading the court of your position, not getting the other side to agree with you. When persuading the court, stick to the facts, not snarky insults on the other side. You don’t want to get bogged down in inconsistent statements of the other side to show that the other side is lying. The court will either see it or it won’t. A lie from the other side will usually only hurt the other side if the lie is about something important in the case.
Stay on target, stick with what you are trying to prove, and remember that you are there to convince the judge, not anyone else.
There are certain things that a landlord can do even before the lease agreement is signed with the tenant that can put the landlord in a strong position to fight a rent escrow procedure.
First, if the landlord owns three or fewer rental units, and informs the tenant of this fact in his written lease agreement or in writing at the time of an oral rental agreement, then the tenant cannot escrow the rent.
Second, if the landlord keeps his premises in an orderly and safe condition, a tenant will be much less likely to attempt a rent escrow.
Third, the landlord will want to keep exacting records of when rents were received and how much the checks were for. This is because tenants who are behind on the rent cannot escrow the rent with the court under R.C. 5321.07.
While the tenant has the right to put his/her rent into escrow during the term of the lease if the landlord has not fixed things around the rented premises after getting the proper notice to do so, a question often arises about what happens to the escrowed rent once the tenant moves out?
Picture the situation: A wealthy landlord has a rental property and isn’t fixing things for the tenant that need to be fixed after the tenant sends out a letter pursuant to Ohio Revised Code Section 5321.07. The tenant starts to escrow the rent with the clerk of courts. The landlord gets notice from the clerk of the escrow.
Because the landlord is wealthy, he doesn’t feel any particular financial pinch from the lack of the tenant’s $750.00 per month rental payment and just lets the rent pile up in the escrow account. Eight months later, the tenant moves out and the landlord petitions for the release of the escrowed funds, even though he never fixed the problem?
What can the tenant do?
Under Ohio law, the answer is nothing, because the tenant, after he or she moves out, is no longer a “tenant.” The tenant has no standing to argue that the rent be kept in escrow.
While this may seem unfair, the tenant did have remedies during the period of the tenancy. The tenant could have filed a Motion to Compel Repairs and the Court could have granted it, ordering the landlord to make the repairs and/or paying the tenant back for making the repairs himself out of the escrowed funds.
Under Ohio Revised Code Section 5321.04, landlords are required to put and keep the rented premises in a fit and habitable condition. If they don’t, then the tenant has remedies under Ohio Revised Code Section 5321.07, which says that if the tenant is current on his/her rent, then the tenant can write the landlord a letter about the substandard conditions.
Once the landlord receives this letter, the landlord has only 30 days or a reasonable amount of time (whichever is sooner) to fix the problem.
If the landlord does not fix the problem within 30 days or a reasonable amount of time, the next time that rent is due, the tenant can go to the local municipal court having jurisdiction over the area (or if there is no municipal court, then the county court of common pleas) and start the process of paying the monthly rent to the clerk of courts.
Every court’s procedure will be a bit different, but the broad outlines will be the same. The clerk of courts will have the tenant fill out some forms, set up a rent escrow case file, and accept the rental payment. The clerk will then notify the landlord that the rent has been paid into escrow and will be kept there until the tenant agrees that the problem at the rented premises has been fixed. It is best to call the clerk’s office before you head down there to see what, if anything, you will need to bring with you to get the escrow process started. Some Courts want to see a copy of the lease agreement and a copy of the letter you sent to the landlord about the problems.
You also don’t want to be late with the rent when paying the court. Nothing will stop an escrow process quicker than being late on the rent.
If there is a disagreement over whether the problem still exists (or ever existed) or whether the tenant is allowed to escrow the rent, then the clerk will advise the landlord that the landlord can contest the matter at a hearing before the court.
At such a hearing, both sides can bring in evidence and put on witnesses to prove their case. The Court will use the escrowed rent as a hammer to force the landlord to make the repairs if the court finds that the repairs need to be made. The landlord can petition the court for a partial release of the rent so long as that portion of the rent will go to making the repair.