Eviction defense – waiver of prompt payment by landlord

In Ohio, many landlords have a clause in their rental agreements which require that the rent be paid promptly by the first of the month, or the fifth of the month, or by some date certain. However, often a landlord will accept rent late without protest time after time. Finally, the landlord grows tired of the late payments and files an eviction action when the rent is just three or four days late.

If the tenant knows his/her rights, the tenant will argue that the course of conduct between the parties whereby the landlord accepted rent late without protest over many months estops the landlord from insisting upon prompt payment.

Ohio’s Tenth District Court of Appeals considered just this issue in Crossroads Somerset v. Newland (1987), 40 Ohio App.3d 20. There, the tenant argued that the landlord had waived its right to prompt payment. The trial court disagreed and granted the eviction, but the tenant appealed. The Tenth District Court of Appeals reversed the trial court, holding that:

“Given plaintiff’s acquiescence in defendant’s late payments, the trial court abused its discretion in failing to hold that plaintiff waived its new payment policy. See Southern Hotel Co. v.. Miscott, Inc. (1975), 44 Ohio App. 2d 217, 73 O.O. 2d 235, 337 N.E. 2d 660.” Crossroads Somerset v. Newland (1987), 40 Ohio App.3d 20.

There is one way to overcome this pattern of conduct contrary to the lease agreement so that the landlord can once again insist upon strict compliance with the lease terms. That is through a letter of strict compliance which the landlord sends to the tenant, warning the tenant that in the past, the tenant has paid the rent late, and that is all fine and good, but from now on, the landlord expects to see the rent paid on time every time. Once the landlord can show a letter like this to the court, then the defense of estoppel is out the window.

However, if the landlord makes a regular practice of sending out letters of strict compliance every month, then the landlord is right back in the old estoppel boat:

“Plaintiff, however, asserts that each time defendant made a late rental payment between July and December 1986, it advised defendant of the need for prompt payment by inserting a “boilerplate” reassertion of the new payment policy with defendant’s late notices. Such actions do not overcome the fact that plaintiff permitted defendant to violate the policy three times, and yet, despite the renewed notices, to retain possession of the premises. Accordingly, we must conclude that plaintiff waived as to this defendant the new payment policy instituted in July 1986. Therefore, plaintiff could not properly evict the defendant for nonpayment of rent tendered in full on January 7, 1987.”

If you need assistance with an eviction, you can call Eric E. Willison at 614.580.4316 or Andrew J. Ruzicho at 614.447.2365 or you can visit our website at www.ohiolandlordtenant.com.