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.