Category Archives: Landlord Tenant
One of the most common landlord-tenant disputes revolves around the landlord’s return of a security deposit. Without getting into the issue as to whether money given by the tenant is considered a “security deposit” in the first instance (every now and again there are disputes), the typical scenario is that the tenant vacates the premises at the end of the lease term (or after an eviction) and the landlord refuses to return the security deposit, usually claiming damage to the premises or back rent.
Absent some term contained in the lease agreement to the contrary, the landlord is allowed by law to apply any security deposit to tenant’s back rent. If the tenant owes the money, the landlord does not have to return the security deposit. One point of clarification is that the right of the landlord to apply the deposit to back rent exists even if the lease contains the common term “that the deposit will not be applied to rent.” Sometimes tenants believe that the landlord is contractually prohibited from keeping the deposit as payment for back rent after reading a such phraseology in their lease. This, however, is not what that particular lease-term means. That term simply means that if the tenant fails to pay the monthly rent at some point during the lease-term that the landlord will not apply the deposit to cover that payment. Rather, the tenant will still owe that month’s rent, notwithstanding the fact that the landlord is in possession of money given by the tenant for that exact amount. Such a term does not mean that the landlord can only use the deposit for damages caused to the premises.
But if the tenant remained current on the rent through the end of the leasehold, and provided the tenant was not responsible for any damages above normal wear and tear, the landlord MUST return the entire security deposit within a specified time. If the landlord fails to return the security deposit, the tenant has a cause of action against the landlord.
Under the Ohio Revised Code, a landlord must return your security deposit, along with an itemized list of any deductions from the deposit, to the former tenant within 30 days of the end of the lease. If the landlord fails to return the security deposit (or fails to provide a detailed itemization of damages) within this time-frame, the tenant is entitled to double the amount of the deposit withheld and may be awarded costs and attorney’s fees as well.
However, it must be pointed out that the tenant also has a duty to provide the landlord with an address to which the landlord is to send the deposit and itemized list of deductions. The 30 day time-frame does not begin to run against the landlord until the tenant has provided the landlord with such an address in writing. So tenants need to be aware of the requirement that the landlord receive this information in writing when they move out.
For a sample demand form for tenants, go here: FREE LEGAL FORMS
This post is directed to the many “do-it-yourselfers” in the residential leasing market. This post is not meant to help the large, multi-dwelling landlords with full-time management and legal staffs. No, this is for the guy who gets transferred to another city and decides to rent out that house or condo in his current location rather than deal with market, or those budding real estate mogulists who’ve squirreled away money from their day job to have acquired 3 or 4 properties rented around town. These are the landlords that will most likely deal directly with tenants, and those that are least prepared to do so, considering their skills lie in engineering, or medicine, or building decks, or anything besides leasing residential housing. So here is a quick checklist for those who play landlord on the weekends:
1) Make sure to reduce the lease agreement to writing if the tenancy period is going to last over a year. You should always reduce your agreements to writing in order to prove the deal anyway, but oral tenancies lasting longer than a year are not even enforceable.
2) Never threaten to physically remove the tenant or lock the tenant out of the premises, even if they have failed to pay rent. Self-help is completely illegal in Ohio. Even if you can do so peacefully, you are never allowed to personally dispossess the tenant from the premises. The only legal way to evict a residential tenant in Ohio is through the statutory procedures proscribed in O.R.C. Sec. 2913, and the eviction must be sanctioned by a court in all circumstances.
3) You have a duty to keep the premises in a safe and habitable condition. This duty is not negotiable and you cannot shift this duty to the tenant, even in exchange for lower rent. It is ultimately the responsibility of the landlord to ensure the premises is up to building, housing and health codes, and at all times remains in habitable condition
4) Never retaliate against a tenant should they report code violations. You could be open to damages and attorneys fees if the court finds that you initiated eviction proceedings in retaliation for the tenants reporting alleged code violations.
5) Make sure to carry-out each duty the law requires of you under the Landlord-Tenant Act (O.R.C. Sec 5321). Most of the duties are self-evident and require only that you conduct yourself with basic human decency in the leasing of property, but you should look them over nonetheless.
6) If you intend to evict the tenant for the non-payment of rent or other default, make sure you provide the required Three-Day notice to vacate, required under state law before you do anything else. Do not file the eviction action in court until you have first provided the tenant with a notice to vacate, and then have waited at least three days. The court will lack jurisdiction to hear the eviction action unless the tenant is given the notice.
5321.02 Retaliatory conduct of landlord prohibited.
(A) Subject to section 5321.03 of the Revised Code, a landlord may not retaliate against a tenant by increasing the tenant’s rent, decreasing services that are due to the tenant, or bringing or threatening to bring an action for possession of the tenant’s premises because:
(1) The tenant has complained to an appropriate governmental agency of a violation of a building, housing, health, or safety code that is applicable to the premises, and the violation materially affects health and safety;
(2) The tenant has complained to the landlord of any violation of section 5321.04 of the Revised Code;
(3) The tenant joined with other tenants for the purpose of negotiating or dealing collectively with the landlord on any of the terms and conditions of a rental agreement.
(B) If a landlord acts in violation of division (A) of this section the tenant may:
(1) Use the retaliatory action of the landlord as a defense to an action by the landlord to recover possession of the premises;
(2) Recover possession of the premises; or
(3) Terminate the rental agreement. In addition, the tenant may recover from the landlord any actual damages together with reasonable attorneys’ fees.
(C) Nothing in division (A) of this section shall prohibit a landlord from increasing the rent to reflect the cost of improvements installed by the landlord in or about the premises or to reflect an increase in other costs of operation of the premises.