Residential Landlord Liable for Attorneys' Fees for Terminating Tenant's Utilities

Posted by David Lindner on May 14, 2012

From time to time, I get a call from a residential landlord who is frustrated that a tenant has ceased paying rent, but won’t vacate the premises. When I tell the landlord that he or she must proceed with a statutory eviction or “forcible entry and detainer” action in municipal court, the frustration often grows. The landlord will sometimes say things like “I own the apartment, I’ll just move his things out and change the locks,” or “I’ll have the water and electricity turned off, then he’ll have to move out.”

While there may have been a time when such practices were commonplace, they have long been prohibited in Ohio. The Ohio Landlord and Tenant Act, Chapter 5321 of the Ohio Revised Code, prohibits “self-help” remedies against residential tenants. Specifically, Section 5321.15(A) and (B) prohibit terminating utilities, excluding the tenant from the premises, threatening any unlawful act, or seizing the tenant’s property:

(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 attorneys fees.

A landlord who violates the prohibitions under (A) or (B) may be liable for damages as well as the tenant’s attorneys’ fees pursuant to division (C). One landlord found this out the hard way in the recent case of Crenshaw v. Rowland, 196 Ohio App.3d 7171, 2011-Ohio-5942 (Sixth District Court of Appeals, Lucas County).

In this case, the landlord, Crenshaw, filed an eviction action against the Rowlands, who were her tenants, alleging that the tenants had failed to pay rent. The tenants counterclaimed, alleging among other things that the landlord had unlawfully terminated the water service to the premises in an effort to get them to leave. At trial, the landlord admitted that she had the water service terminated and that she had also informed the Lucas County Health Department and Lucas County Children Services that the premises had no water. The tenants were then informed by the County that they would have to leave the premises because it did not have running water.

The trial court awarded damages of $800 to the tenants due to the landlord’s terminating the water in breach of R.C. 5321.15. The tenants requested an award of attorneys’ fees pursuant to R.C. 5321.15(C) in addition to the damages. The trial court held that the tenants were not entitled to attorneys’ fee because they were in breach of their obligations under the lease for failure to pay rent. On appeal, the court of appeals held that, regardless of whether or not they failed to pay rent, the award of attorneys’ fees was mandatory where the landlord violated the prohibitions of 5321.15(A) or (B). Thus, the case was remanded to the trial court to determine the amount of attorneys’ fees that the landlord would have to pay to the tenant.

This case should serve as a warning to all residential landlords who are seeking a “short-cut” to the evictions process that taking a “self-help” approach may end up costing you more time and money in the long run.

Commercial Evictions in Ohio

Posted by David Lindner on October 25, 2010

This past Sunday I spent the afternoon watching my local football team ply its trade.  As a resident of Cleveland, this weekly tradition sometimes brings more pain than pleasure, as the fans wonder what can possibly go wrong with the team next.  Whether it’s the unproductive draft picks, or the never-ending stream of lackluster quarterbacks, there is nearly always something to complain about.  That all changed, at least for a week, when the Cleveland Browns thoroughly dominated the defending Super Bowl Champion New Orleans Saints.

That got me thinking about how quickly a once-successful enterprise can find itself struggling to survive.  The Saints still have time to recover from their loss, but many commercial tenants don’t.  Some businesses, once at their peak, are now struggling to survive and have stopped paying their rent.  If the tenant is unable to catch up on the rent or strike a new deal with the landlord, the landlord will want the tenant out as quickly as possible so that the space can be marketed and leased to a new tenant. 

In Ohio, R.C. Chapter 1923 governs eviction actions, otherwise knows as “forcible entry and detainer” actions.  These proceedings are meant to be summary in nature and are heard on an expedited basis in the municipal courts.  Before filing in court, however, a landlord must be careful to follow all the prerequisite steps or risk having its eviction case dismissed.  What must be done before filing the eviction action?  The first place to look for that answer is the lease agreement.  Many leases provide for a notice and cure period for defaults.  If this is the case, the landlord must be sure that notice was given to the proper individual, at the proper address, and by the proper means (certified mail, hand delivery, etc.), specified in the lease.  When the cure period has expired without the default being cured, then the landlord can proceed.

The next step is to give the “three-day” notice described in R.C. Section 1923.04.  In a commercial eviction, this three-day notice can be combined with the notice of default.  It is not necessary to provide two separate notices.  Additionally, although R.C. Section 1923.04(A) contains specific required language concerning the eviction proceeding, that requirement applies only to residential evictions.  This notice must be served either by certified mail, return receipt requested, by handing a copy to the tenant in person, or by leaving it at the tenant’s home or the premises from which the tenant is to be evicted.  Three days later, not including the date of service, the eviction action may be filed.  The landlord must be careful not to accept any future rent from the tenant after service of the notice, or the notice will be deemed waived.

Courts have also held self-help eviction is available in Ohio, provided that the landlord gives any required notice, the lease provides for self-help, and the self-help eviction can be accomplished without a breach of the peace.  Nevertheless, pursuing self-help can be risky for a landlord, as it leaves the landlord open to claims for wrongful eviction and conversion of the tenant’s personal property.  The best course in most instances is to seek experienced legal counsel who can guide you through the eviction process while avoiding the many procedural traps.