Unauthorized Entry and ORC 5321.04 and 5321.05
There are some landlords out there who feel that they can enter upon property they have rented to another without taking any steps to alert the renter or seek the renter’s permission. Even before enactment of Ohio’s Landlord Tenant Act of 1974, this was a fallacious belief.
At common law, when the owner of real property signed a lease agreement to rent it out to another, he gave up, via the lease agreement, his right to possession of that property. The owner still retained ownership, but one of the important rights of ownership, the right to possession, was signed away. Some leases did allow the owners a limited right of access, but if such a thing was not in the lease agreement, the owner could get into trouble for going on to his own land. That kind of trouble came from the common law action of trespass. Since trespass is an intentional tort, a court’s finding that the owner trespassed upon the rented property subjected the owner to civil liability for actual damages, attorneys fees, and even punitive damages. Further, the owner could face criminal charges as well.
In 1974, Ohio passed the Landlord Tenant Act of 1974. Part of that Act, Ohio Revised Code Section 5321.04 describes the landlord’s duties to the tenant in any rental relationship. Specifically, R.C. 5321.04(A)(8) states that the landlord must: “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.”
The law also imposes upon the tenant a duty to be reasonable in granting access to the landlord when the landlord makes a request to enter. Ohio Revised Code 5321.05 states that: The tenant shall not unreasonably withhold consent for the landlord to enter into the dwelling unit in order to inspect the premises, make ordinary, necessary, or agreed repairs, decorations, alterations, or improvements, deliver parcels that are too large for the tenant’s mail facilities, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen, or contractors.
It is clear then that under the statute, the landlord must give reasonable notice to the tenant of his intent to enter, and work with the tenant concerning setting up a mutually acceptable time. The tenant is required to work with the landlord to assure that the landlord can access the premises. A violation of either’s duty to the other in this regard is a violation of the law.
It is important to note that while the statute mentions 24 hours as being presumed to be reasonable notice, it is a presumption only. A legal presumption is one of those rare instances where the court is entitled by law to start of with a predisposition about a case. In this example, the court will start off with the thought in its head that 24 hours notice is sufficient notice to the tenant. But the tenant is entitled to bring in evidence to rebut this presumption.
Here’s an example of how 24 hours notice might not be sufficient. The tenant is a firefighter, and he works a shift which is 48 hours on and the rest of the week off. The tenant has informed the landlord about this and the landlord knows that the tenant works from Monday morning at 7:00 a.m. until Wednesday morning at 7:00 a.m. The landlord wants to inspect the rented premises and on Monday at noon places a note on the door informing the tenant that they wish to come in on Tuesday at 4:00 p.m. to inspect.
The tenant will never get this note in time, and will be unaware of the landlord’s plans. If the matter ever goes to court, the landlord will argue that he gave more than 24 hours notice of his intent to enter, and the tenant will argue that because of his schedule (which the landlord knew about), the notice was insufficient.
Who the court will determine is right and wrong in this matter is less important than the fact that the landlord is now in the middle of a court case and is bleeding attorney fees when it all could have been prevented by knowing what the law is and how to remain on the side of compliance with it.
Further, it should be well understood by landlords that Ohio Revised Code Section 5321.04(A)(8) does not replace the common law structure referred to above, but rather supplements it. This means that in addition to suing the landlord for violation of Ohio Revised Code Section 5321.04(A)(8), the tenant can also sue upon the common law action of trespass (with its possibility of recovery of punitive damages and attorneys fees). Further, a later part of the statute, R.C. 5321.04(B) authorizes the tenant to terminate the lease agreement if the landlord violates the statute. So the careful landlord will get the tenant’s permission in writing to enter the premises.
Let’s look at some cases where the landlord spent a great deal of money fighting over this issue and then lost in the end. In the case of Limage v. Citiscene Apartments, 1992 Ohio App. LEXIS 3055 (June 9, 1992) Franklin Co. App. No. 92AP-190, unreported an agent of the landlord entered into the apartment. The agent’s efforts to notify the tenants beforehand consisted of a telephone call on the same date the entry occurred and knocking on the door shortly before entry. The Tenth District Court of Appeals held that this entry occurred in violation of Ohio Revised Code Section 5321.04(A)(8) and reasoned that:
“Since the telephone was unanswered and the knocking elicited no response, the rental agent certainly knew no notice had been received by the tenants. Giving reasonable notice to tenants for purposes of R.C. 5321.04(A)(8) implies that some sort of notice is received.” Limage at 4.
In this case, the tenants were allowed to terminate the agreement because of the landlord’s unauthorized entry, even though the tenants were not home at the time of the entry. So the landlord got stuck with a lot of legal bills and a piece of vacant property.
Landlords often look upon a request by the tenant to repair something as a carte blanche invitation to enter to fix the problem. This is not the case. In the case of T.K.D. Enterprises v. Zimmerman, 1998 Ohio App. LEXIS 3167 (July 2, 1998) Athens Co. App. No. 97CA44, unreported, the Fourth District Court of Appeals dealt with a case wherein a landlord’s agents entered the rented property after the tenant sent a letter listing repairs to be made. The Trial Court held that this was permissible, but the Fourth District Court of Appeals reversed this finding, holding that “Following T.K.D’s unauthorized and repetitive entries, Zimmermann had a statutory right to terminate the tenancy on written notice. She gave notice of her termination and vacated the premises within a reasonable time after the improper entries.” Zimmerman at 13.
Landlords would also be unwise to rely upon provisions in a lease which allow for unlimited rights of access to the rented property. The Court in Zimmerman also held that:
R.C. 5321.13(A) generally provides no statutory provision of the Landlord/Tenant Act may be waived or modified by the parties’ agreement, except in prescribed limited circumstances which do not apply here. Thus, even if the parties’ written lease agreement had permitted unannounced entries by the landlord, their written agreement could not supersede Ohio’s statutory mandates. Zimmerman at 9 and 10.
In both of the foregoing cases, the landlords spent a great deal of money on attorneys fees at trial, and then a great deal of money on the appeal of each case. In both cases, the landlords lost on appeal, and in both cases they ended up with unrented property.
So the wise landlord is very careful about entry into the rented premises. Even relying upon a tenant’s verbal okay is a risky proposition. If the tenant later claims that he gave no such consent, the landlord is in a 50/50 situation when it comes to court. If the court believes the tenant’s version of the events, then things are going to get really sticky really fast. It is a good practice to send out a letter to the tenant well before any access to the tenant’s property.
It is fine to state in the letter an intention to enter at a certain date and time, and then request that the tenant contact the landlord if that date is going to be a problem, but even this leaves the landlord open to allegations that the tenant did not get the letter. To be completely safe, the landlord should have the tenant sign and return a note confirming that the planned entry is okay.
Tenants who are aware of their rights regarding a landlord’s access to the rented premises are growing in number as the Internet provides greater and greater access to information. Landlords should be very careful when making entries into rented property.