Magistrate’s Report & Decision
This cause came on for hearing before Magistrate Hummer by Order of Reference from Judge W. Dwayne Maynard. Attorney Andrew Ruzicho represented plaintiff. Attorney James Becker represented defendant/counterclaimant. Sworn testimony was taken on November 5, 6, 9, and 12, 2001. Based on the evidence presented during the 10- 12 hours of testimony taken, the magistrate finds as follows:
Findings of Fact
1. Plaintiff and defendant entered into a written lease (Defendant’s Exh. G) under the terms of which plaintiff rented a condominium owned by defendant at 2543 Hyacinth Lane. The terms of the lease called for it to commence on June 16, 2000 and end on June 15, 2001.
2. The lease provided as follows: “Lessee agrees to pay, without demand, to lessor as rent for the demised premises the sum of $850.00 per month in advance on the 25 day of each calendar month, beginning June 16, 2000 * * * rent will be prorated from June 16, 2000 to June 25, 2000 at @ $850.00 per month/30 days = 28.33 x 10 days = $283.33 due plus first full month rent of $850.00.”
3. Plaintiff paid the agreed prorated amount and also paid $850.00 rent per month without incident until after payment was made for the period that covered March 25 through April 24, 2001.
4. Plaintiff also paid a security deposit of $850.00.
5. On or about April 1 or 2, 2001, defendant called plaintiff and left a voice mail message on plaintiff’s telephone answer machine to alert plaintiff that defendant wanted to replace furnace filters at the condominium. Plaintiff returned the call and left a message on defendant’s telephone answer machine that it was OK for defendant to replace the filters but that plaintiff could do it herself and save defendant a trip.
The next day, on or about April 2 or 3, 2001, defendant, Velva Dunn and her son, Chad Fields, entered the unit to check the furnace. When she checked the furnace, defendant found a mattress and box springs nearby, and she also found the garage stacked with furniture and belongings to such an extent that the garage no longer had room
to house a car.
6. Because defendant’s suspicions were aroused that another person in addition to plaintiff was living at the unit, defendant also went upstairs and found men’s clothing and personal items that led her to believe plaintiff had a permanent male house guest. As she left the unit, defendant, a real estate agent, left behind one of her business cards. On the back of it she wrote: “Nancy, enough of the lies and games! Call me we need to have a meeting! ASAP!”
7. When plaintiff came home that night, she saw the card and called defendant. The two had a heated discussion about the visit defendant had paid to the condominium. Plaintiff was upset that defendant had gone beyond looking at the furnace to making an inspection of other parts of the condominium, while defendant was upset because she believed two residents occupied the condominium rather than one.
8. On or about April 5, 2001, defendant taped to plaintiff’s door a notice to leave the premises containing the language required by R.C. 1923.04 as a precondition for commencement of a forcible entry and detainer action. In response, plaintiff contacted an attorney who initiated discussions with defendant. The attorney, plaintiff s counsel at trial, wrote defendant a letter (Defendant’s Exh. R) which contained the following language:
“Dear Ms. Dunn:
I have spoken to my client, Nancy Ridenour, concerning her intentions to remain until the end of the lease or leave by a certain date. Ms. Ridenour would prefer to remain at the premises until the expiration of her lease. But, as it seems that you would like her to leave. she is willing to leave before April 25. 2001 if you would agree in writing to release her from all obligations from her lease including payment of rent and would agree to return her security deposit if she has caused no damages to the premises beyond reasonable wear and tear. This option may seem more practical to you rather than hiring an attorney and paying the associated court costs in order to pursue a dubious eviction claim.”
9. Defendant did not follow up the notice to leave premises with a forcible entry and detainer action. Instead, plaintiff continued to live at the premises and she tendered rent in a timely fashion for the following periodic rental term, from April 25 through May 24, Defendant accepted and processed the rent payment without comment.
10. On or about April 30, 2001, plaintiff received a voice mail telephone message from defendant in which defendant notified plaintiff that she would be entering the condominium to place a ‘For Sale’ sign in the window on or about May 1, 2001. Defendant eventually entered the unit on or about May 2, 2001 and placed a ‘For Sale’ sign in a window. She and/or her son also rechecked the unit and saw that the extra male clothes and the possessions in the garage had been removed.
11. During the few days that preceded this second entry into the unit, defendant left several voice mail messages with plaintiff. One contained defendant’s message that prospective showings for the sale of the unit would be from Monday through Saturday, while on another message defendant told plaintiff that showings would be seven days a week, from 9:00 a.m. to 9:00 p.m. Monday through Friday and from 10:00 a.m. to 9:00 p.m. on Saturdays and Sundays.
12. In response, plaintiff’s counsel wrote defendant letters on three successive days, May 2 (Plaintiff’s Exh 12), May 3 (Plaintiff’s Exh. 13), and May 4 (Plaintiff’s Exh. 14).
13. The May 2 letter detailed what plaintiff’s counsel described as the unauthorized entry on or about April 3, 2001 into the unit by defendant. It also responded to defendant’s broad plans to enter the unit with prospective buyers by offering access to the unit from 11:00 a.m. to 7:00 p.m. Monday through Friday and noon to 5:00 p.m. Saturday and Sunday.
14. The May 3 letter detailed what was described as an unauthorized entry on or about that same day, May 3, when defendant put the ‘For Sale’ sign in the window.
15. The May 4 letter detailed plaintiff’s plans to move out on or about May 7 as a result of what the letter described as plaintiff’s lawful right to terminate the tenancy. Plaintiff did in fact turn over possession of the unit on or about May 7. She paid no rent after that. In the May 4 letter. Plaintiff’s counsel provided a forwarding address to defendant regarding the disposition of the security deposit.
16. When defendant did not refund any portion of the security deposit and also noted allegedly due damages at the unit beyond ordinary wear and tear (Defendant’s Exh. F and Plaintiff’s Exh. 9), plaintiff filed suit on June 12, 2001.
17. Defendant counterclaimed on July 10, 2001.
18. Provision 15 of the lease reads as follows: “Display of signs. During the last 45 days of this lease, lessor or his agent shall have the privilege of displaying the usual ‘For Sale’ or ‘For Rent’ or ‘Vacancy’ signs on the demised premises and of showing the property to prospective purchasers or tenants.”
19. After plaintiff moved out, defendant continued her efforts to sell the unit and eventually found a buyer during the summer of 2001.
20. Although defendant’s itemization of deductions from the security deposit (Defendant’s Exh. F and Plaintiff’s Exh. 9) noted that the final month’s rent of $850.00 remained due, plaintiff paid the total sum of $9,633.33 in rent while she lived there, an amount that was $566.67 less than the total sum due of $10,200.00 over the life of the lease. Thus, the only rent plaintiff did not pay was the sum of $566.67.
21. The addendum to the lease (Defendant’s Exh. G), signed by both parties on or about June 6, 2000, provided as follows: “There will be a 5% late charge on rent due or if rent is received later than the 25th day of each month.” Five percent of $566.67 is $28.33.
22. Defendant’s itemization of security deposit deductions discussed four other items, described below and about which the magistrate finds as follows:
Garden Hose and Nozzle: Plaintiff did not remove a garden hose and nozzle that belonged to defendant when plaintiff vacated the premises.
Bedroom Door Frame: The bedroom door frame was in the same condition at the end of plaintiff’s tenancy as it had been at the beginning.
Rear Screen Door: The rear screen door remained in the same condition at the end of plaintiff’s tenancy as it had been at the beginning.
Carpeting: The carpeting did not deteriorate by virtue of anything plaintiff did during the tenancy.
Conclusions of Law
This landlord/tenant dispute raises several issues. Plaintiff argues defendant made at least two unauthorized entries into the condominium in violation of R.C. 5321.04 and/or harassed plaintiff with disparaging telephone messages, thereby triggering plaintiff’s right to terminate the tenancy pursuant to R.C. 5321.04(B). Plaintiff also argues that even if she did not have the right to terminate the tenancy, she is still owed money by defendant because defendant as a landlord failed to mitigate her damages after plaintiff moved out and also wrongfully assessed security deposit deductions for damages that were not caused by plaintiff. Defendant, meanwhile, argues that plaintiff owes more money for monthly rent than the lease contract price because a second person resided at the premises, that the last month’s rent never was paid and that plaintiff damaged the premises beyond ordinary wear and tear.
For the reasons set forth below, the magistrate concludes that plaintiff acted without legal authority when she moved out of the premises early, that defendant has no valid claim for increased rent over and above the contract price, that plaintiff caused no damages to the premises beyond ordinary wear and tear during the tenancy, and that defendant wrongfully withheld $255 from the security deposit.
Plaintiff’s primary argument is that defendant made two unauthorized entries into the condominium, the first on or about April 3, 2001 and the second on or about May 3, 2001. R.C. 5321.05(B) directs tenants not to unreasonably withhold consent for a landlord to “enter into the dwelling unit in order to inspect the premises, make ordinary, necessary, or agreed repairs * * * or exhibit the dwelling unit to prospective or actual purchasers [.]” R.C. 5321.04(A)(7) directs landlords not to “abuse the right of access conferred by Division (B) of Section 5321.05 of the Revised Code[.]” R.C. 5321.04(A) (8) directs landlords as follows:
“Except in the case of emergency or if it is impracticable to do so, give the tenant reasonable notice of his intent to enter and enter only at reasonable times, Twenty-four hours is presumed to be a reasonable notice in the absence of evidence to the contrary.”
Each party devoted significant attention to a letter (Plaintiff1s Exh. 17, Defendant’s Exh. J) dated March 30, 2001, signed by defendant which informs plaintiff that defendant needs to access the property for a routine maintenance check of the furnace and air conditioning unit on April 2, 200 1. The attention was devoted to
the question of whether the notice ever was delivered — defendant said it was and plaintiff said it was not. The answer to that question is beside the point, however, in light of plaintiff’s testimony that she received a voice mail the day before the entry notifying her about it. She further testified that she returned the call by saying it was OK for the landlord to enter but that plaintiff would be willing to change the furnace filter herself and save the landlord a trip. This testimony indicates both that plaintiff was aware of and approved the entry into the condominium early in April. Given that testimony, the landlord’s entry into the unit was authorized. Once at the unit, defendant discovered possessions that aroused her suspicions about who might be living there. Her inspection of the unit to try to confirm those suspicions did not turn the authorized entry into an unauthorized entry within the meaning of R.C. 5321.04.
Likewise, with respect to the early May entry into the unit, the parties devoted considerable attention to a letter (Defendant’s Exh. K) dated April 30, 2001, in which defendant allegedly delivered notice to plaintiff of the need to access the property on May 2, 200 1, for a maintenance check on a bathroom plumbing fixture. Again, the focus of the attention was whether the letter was delivered — defendant said it was and plaintiff said it was not. This discussion is beside the point as well, in light of plaintiff s testimony that she received a voice mail the day before the entry to the effect that defendant intended to enter the unit to place a For Sale sign in the window, Lease Provision 15 allowed this very act within the last 45 days of the tenancy. Regardless of whether the entry was made on May 2 or May 3, another point on which the parties disagree, the entry took place within the last 45 days of the tenancy and after notice the day before by voice mail which plaintiff admits she received. Thus, that entry as well was permissible pursuant to the tease and to R.C. 5321.04 and 05. This case is distinguishable from the case cited by plaintiff (Plaintiff’s Exh. 14, defendant’s Exh. M) as grounds for plaintiff to vacate prior to the end of the lease term. T.K.D. Enterprises v. Zimmerman, 1998 Ohio App. Lexis 3167 (July 2. 1998). involving t%N 0 unauthorized entries by repair personnel without notice to the tenant.
Even though the entries were permissible, defendant left several voice mail messages to plaintiff, onat least one of which defendant said she intended to show the condominium to prospective buyers seven days per week with showing hours of 11 to 12 hours per day. This was an unreasonable demand within the context of R.C. 5321.04(B), which provides:
“If the landlord makes an entry in violation of division (A) (8) of this section, makes a lawful entry in an unreasonable mariner, or makes repeated demands for entry otherwise lawful that have the effect of harassing the tenant, the tenant may recover actual damages resulting from the entry or demands, obtain injunctive relief to prevent the recurrence of the conduct. and obtain a judgment for reasonable attorney’s fees, or may terminate the rental agreement.”
It is important to note that no unreasonable entry was made along the lines of the schedule the landlord proposed in her voice mail message. Instead, plaintiff’s counsel responded with a letter (Plaintiff’s Exh. 12) dated May 2, 2001 in which plaintiff said she would allow access to the unit from 11:00 a.m. through 7:00 p.m. Monday through Friday and noon to 5:00 p.m. Saturday and Sunday. This was an appropriate response to defendant’s broader and unreasonable request, and it prompted the landlord to reduce showing hours (Defendant’s Exh. U).
The language of R.C. 5321.04(B) also raises the issue of whether defendant’s voice mails violated the statute’s prohibition against “repeated demands for entry otherwise lawful that have the effect of harassing the tenant.” The transcript of defendant’s May 4, 2001, voice mail message to plaintiff (attached to Answers of Defendant and Counterclaimant to Plaintiff s First Document Production Request, file-stamped Sept. 2 1, 2001) is representative of the voice mail recordings plaintiff played in court. They could he described, charitably, as streams of consciousness by defendant or, not so charitably, as inappropriate commentaries about plaintiff’s personal life. Here, however, it should be noted that the voice mails were part of an ongoing dialogue about a subject on which the parties disagreed, namely, whether defendant had entered the premises in violation of the lease or Ohio law. The magistrate is not unsympathetic to plaintiff ~ annoyance at the condescending tone of defendant’s voice mail messages as described in the May 4 transcript and heard in the recordings played at trial. Nevertheless, in the context of the eN ents between late March and early May of 2001, defendant’s conduct fell short of the harassment contemplated by R.C. 5321.04(B) and did not justify plaintiff’s attempt to terminate the rental agreement.
Defendant claims that plaintiff allowed an unauthorized occupant to live with her at the premises throughout the lease term and that plaintiff therefore owes $200.00 more per month for the entirety of the lease. For several reasons, defendant failed to prove that claim. The witness upon whose testimony defendant relies, Kendra Krebs, was not persuasive. Ms. Krebs, who lived across the street from 2543 Hyacinth Lane, never pinpointed the date when she believed another person moved in with plaintiff. Ms. Krebs described plaintiff as having lightbrown or blonde hair and as driving a silver Honda Accord, and she said she never saw anybody who resembled plaintiff with children on the premises. In actuality, plaintiff is a brunette who testified she drives a purple Voyager, and her three children visited regularly on weekends.
At best, the date at which any credible evidence placed a second person permanently at the unit was the beginning of April 2001 when defendant entered the premises for the furnace inspection. Plaintiff acknowledged that her boyfriend spent two to three nights per week at the premises for much of the tenancy, but she did not concede he should be defined as an occupant of the premises. Provisions 9 and 13 of the lease specifically mention the kinds of damage that can be caused by a “visitor” at the premises, which is evidence in itself that the lease did not specifically prohibit the tenant from having overnight guests. Neither R.C. 1923 nor R.C- 5321 provides a definition of occupant that is helpful in determining whether the boyfriend’s presence violated the lease term (Provision 5) which requires the premises “shall be occupied by no more than one persons.” An occupant has been described as a “person having possessory rights, who can control what goes on on premises.” Black’s Law Dictionan (6 Ed. 1990) 1078.
Several cases, including Countrybrook Apartntents v. Forsythe (Franklin County Municipal Court No. 86CVG-20896 August 28, 1986), have decided that, by itself. staying overnight two or three times a week is not an unauthorized occupancy. See Iskins Ohio Eviction and Landlord-Tenant Lait (2d Ed 1996) 197200. Several factors are relevant in distinguishing between an Occupant and a guest, including the number of days per week or length of stay~ any use of another residence: where clothes and other personal belongings are maintained; where meals are eaten: where mail is received, address used for driver’s license and other documents; and other indicia of residency. Ohio Eviction and Landlord- Tenant Law, citing Juarovisech V. Portage Metropolitan Housing Authority, No. C83-4961 (N.D. Ohio Jan. 12, 1984), and Urban Hollow Apartments v. Lewis, Franklin County Municipal Court No. 9403CVG-7533 (May 25, 1994). Neither party called the boyfriend as a witness, and many of the factors that would be helpful to determining whether the boyfriend was an occupant were not identified by the parties. Defendant/counterclaimant bears the burden of proof on this issue and she failed to show by a preponderance of the evidence that the boyfriend is properly defined as an occupant.
Even if the boyfriend’s presence made him an occupant in violation of the lease, that fact alone would not justify the retroactive increase in rent that defendant seeks. First, the evidence offered was insufficient to establish “occupancy” by the boyfriend prior to April of 200 1, almost ten months into the lease. Second, while real estate agent Mark Calvary testified that defendant reasonably could have expected to collect at least $200.00 more in monthly rent by having two tenants instead of one, that testimony was not persuasive. The contract called for monthly rent of $850.00. It included no conditional clauses about increased rent based on the number of occupants. The conduct of the parties at the time the dispute arose is the best indicator of their intent. Just three weeks after she discovered the presence of the extra “occupant,” defendant accepted the normal monthly rent of $850.00 from plaintiff without comment. After plaintiff moved out, defendant sent plaintiff an itemized deduction statement that made no mention of any extra rent due because of the presence of the boyfriend. None of those factors by itself is fatal to defendant’s argument, but together they support the conclusion that defendant’s claim for an extra $200.00 in monthly rent is without merit.
The remaining issue is a dispute over the disposition of the security deposit. Because plaintiff had no legal right to terminate the tenancy when she did, she owed rent for the remainder of the tenancy. The only rent unpaid was the $566.67 that became due on or about May 25, 2001. The addendum to the lease called for a 5% late charge on any delinquent rent, and 5% of S566.67 amounts to S28.33. This sum. $595 in all, became due after plaintiff moved and failed to pay the rent bv May 25, and it therefore properly was withheld from the security deposit. Defendant did have a duty to try to mitigate damages after plaintiff’s breach of her lease obligations, and defendant met that duty by offering the unit for sale both before and after plaintiff vacated. It would be unreasonable to ask defendant to try to find a new renter for the five weeks that remained in plaintiff’s original lease term, and defendant violated no duty to mitigate when she did not seek a replacement renter.
With respect to the security deposit, defendant argues that plaintiff caused damages beyond ordinary wear and tear to the carpeting, door frame, and screen door. The preponderance of the evidence, both testimonial and photographic, fails to support defendant’s position. Likewise, plaintiff testified that she did not take defendant’s hose and nozzle when she moved from the premises, and plaintiff was credible on this point.
Because the only money properly withheld from the $850.00 security deposit was the May 25 rental sum and late fees in the total amount of $595, the $255 remainder of the security deposit was wrongfully withheld in violation of R.C. 5321.16. Because plaintiff provided a forwarding address pursuant to the statute, she is entitled to a judgment in the amount of the wrongfully withheld amount plus an equal amount in damages, or $5 10 in all.
Although plaintiff demanded in her complaint the recovery of attorney fees, her counsel chose not to address that issue at trial pending a decision. Assuming the subject of attorney fees is raised with the trial judge, the magistrate finds it relevant to note that about 25% of the testimony, from 2.5 to 3 hours, related to the security deposit issues. This assessment is based on the magistrate’s own review of his 24 pages of trial notes. Any award of attorney fees must relate solely to the fees attributable to a tenant’s R.C. 5321.16 security deposit claim, and not to any additional claims. Sinith v. Padgett (1987), 32 Ohio St.3d 344.
Judgment in favor of plaintiff on plaintiff’s complaint in the amount of $510.00 plus interest. Judgment in favor of plaintiff on defendant’s counterclaim. Counterclaim dismissed Costs to defendant.