Residential Rentals are HOT – Part IV – Eviction
Thus far we’ve discussed the lease agreement, payment of rent, the security deposit and the rent escrow process. If all else fails in a dispute between a landlord and tenant, eviction is likely the solution. The eviction process solely addresses the issue of who is entitled to possession of the property. If there is dispute about unpaid rent or damages, that is addressed in a separate civil proceeding that will occur after the eviction proceeding.
Generally, if a tenant breaches the lease agreement, the tenant forfeits its right to occupy the property. The landlord may terminate a lease if the tenant breaches any obligation set forth in law or in the rental agreement. Typically it is the tenant’s breach of their obligation to pay rent that prompts an eviction.
Before filing an eviction, the landlord must provide the tenant with a 3-day notice. The 3-day notice is prescribed by statute and must contain the following language in a conspicuous manner: “You are being asked to leave the premises. If you do not leave, an eviction action may be initiated against you. If you are in doubt regarding your legal rights and obligations as a tenant, it is recommended that you seek legal assistance.”
The landlord must provide the 3-day notice to the tenant three or more days prior to the beginning of any eviction action. The 3-days does not include weekends. For example, if the notice is posted on Thursday, then the landlord must wait until the following Wednesday to file the eviction complaint in court. The 3-day notice must be provided by certified mail return receipt requested, handing it to the tenant in person or leaving it at the tenant’s home or at the property from which eviction is sought. Posting the notice on the front door of the property from which eviction is sought is the most common. Tip: Make sure the person posting the notice is available to testify in case the tenant disputes receiving the 3-day notice.
Municipal and county courts have jurisdiction to hear Forcible Entry and Detainer or “FED” actions (the legal terminology for eviction). In the same action a landlord may choose to sue for damages, but doesn’t have to and may wait and file later. If the landlord elects to wait to sue for damages, the landlord has 2 years of the tenant’s default to file. The FED summons served by the Clerk of Courts must be served 7 days before the FED hearing. A jury trial may be demanded, but if it delays the FED hearing more than 8 days the Court may require the tenant to post a bond.
If the tenant remains in possession of the property after judgment is rendered in favor of the landlord, the landlord must file what is called a “Writ of Execution.” The County Sheriff will have 10 days to execute the writ, which involves physically setting out the tenant and the tenant’s belongings. Note: the landlord’s failure to execute on the judgment property can expose the landlord to damages and attorney’s fees.
Last, I’ve seen the words “Self-Help” and the like in residential leases. Note: Self-help is not lawful for residential leases. The right of self-help is legal in Ohio, but only with respect to commercial property and only if it is explicitly provided for in the rental agreement. Self-help permits the landlord to change the locks to the property, without any prior court process or proceeding. However, a landlord using self-help may not breach the peace, so typically you will see landlords exercising self-help for commercial property after hours when the property is not inhabited.
A tenant may terminate a rental agreement early for a number of reasons, including:
- Landlord retaliation such as increasing rent, decreasing services or threatening eviction
- Repeated entry or unlawful entry
- Landlord fails to meet obligations
- Premises are not compliant with housing, health or safety codes
- Lease agreement unconscionable
Upon termination of the rental agreement, the tenant need merely vacate the premises. Consideration should be given to consulting with legal counsel when terminating a tenancy (either by a landlord or tenant), as there is the ability for the other side to recover damages and attorney’s fees if the statutory processes are not followed or a party acts in bad faith.