April 16, 2018
I. Two Types of Evictions: Statutory Evictions and Self Help Evictions
There are two ways to evict a residential tenant in the state of Ohio, you can do it legally, or you can do it illegally. Both have consequences.
A. Statutory Evictions
Ohio Revised Code Section 1923.04 allows for evictions against tenants of residential property by first posting a three day notice to vacate, then by filing a forcible entry and detainer action with the local court (usually the municipal court), attending a hearing,
obtaining a writ of restitution and then, if necessary, setting out the tenant’s property and changing the locks.
There is also something called a “self help” eviction, which is perfectly legal if we are talking about a commercial setting such as when your tenant is a shopkeeper, and you are renting out retail space to him, the lease allows it, and so long as such eviction can be
accomplished without disturbing the peace.
However, most smaller landlords own residential property, and if you attempt a self-help eviction with regard to tenants in residential rental property, regardless of whether or not the tenant’s right to stay has ended, you will run afoul of Ohio Revised Code Section
5321.15 and be liable for actual damages and attorneys fees.
II. When Do You Need a Lawyer?
You can always represent yourself in court. What you cannot do is represent someone else or some other entity in court unless you are an attorney licensed to practice law in Ohio by the Ohio Supreme Court. That means that if you own your rental property under a corporate name or if you manage property for others who might be out of state or otherwise unable to run their properties without help, then you will need to hire a lawyer to file your evictions (though you can certainly testify as a witness).
Even if the law does not require you to have a lawyer, you still may need a lawyer to help you out. If the eviction is an open and shut case of simple non-payment of rent and the tenant does not even bother showing up at the hearing, then you don’t need a lawyer and you can very likely get a result on your own. But if the tenant shows up and starts arguing waiver and estoppel and retaliatory eviction under Ohio Revised Code Section 5321.02, you may want to get a continuance and call a lawyer.
III. Four Things Which Allow for Evictions
As the record owner of real estate, you have the rights of ownership and possession. However, these rights are severable. That means that you can give away your right to possession of the property to another person for money. This is what you are doing when you rent property. You still own it, but you no longer have the right to possession of it since you have voluntarily agreed to bargain that away.
This means that you can no longer simply come and go as you please on the property. “I own it” doesn’t work anymore. You can even be arrested and charged criminally for trespassing on the property if you do not get the tenant’s permission to enter into the residence.
This also means that if you want your property back, you can’t just tell the tenant to get lost. Something has to happen to terminate the tenant’s right to possession. If any of the things listed below occur, these can serve as a basis for an eviction.
A. Breach of the Lease
Under Ohio law, the thing that gives the tenant the right to possession of another’s property is a lease agreement. Naturally then, if the tenant breaches a material provision of that lease agreement, then the landlord can get the right to possession back by bringing a Forcible Entry and Detainer Action against the tenant pursuant to Ohio Revised Code Section 1923.04.
The most common breach of a rental agreement is the failure to pay rent. But there could be other breaches. If the lease does not allow pets, or if the tenant is destroying the property, these too are likely going to be breaches of the lease agreement upon which an eviction action can be based. But you can’t just wake up one morning and decide that you want your tenant out and file an eviction action.
B. Expiration of Rental Agreement
When a landlord trades his right to possession of the property for a certain amount of money from the tenant, this is rarely done for more than a year or two. Almost all rental agreements have expiration dates. This is especially true if you don’t have a written agreement and the tenancy is a month to month tenancy. In such a case, the rental agreement ends and could be (and usually is) renewed every month.
If you wake up one morning and you decide that you do not want to renew the tenancy with your tenant, then you don’t need to give a reason for that. You need only wait until the lease expires, give the proper notice, and if the tenant doesn’t leave, you can file an
eviction action.
C. Drugs
Ohio law allows for a landlord to evict a tenant who is selling drugs. Not only does the law allow the landlord to do this, but it is a darned good idea for the landlord to take advantage of this law. If the state finds out that the tenant is dealing drugs out of the property, and if the state can show that you are taking money from that tenant in the form of rent that comes from such drug sales, you face the risk that the state may invoke civil forfeiture proceedings against you and take the property from you.
D. Breach of Ohio Revised Code Section 5321.05
Ohio’s Landlord Tenant Act of 1974 is still good law today. It is found at Ohio Revised Code Section 5321 and it is broken down into about 18 or 19 subsections. The fifth subsection, Ohio Revised Code 5321.05 defines the tenant’s responsibilities to the landlord. If the tenant breaches these responsibilities, then the landlord needs to give the tenant 30 days notice to fix that problem. If the tenant does not take action to remedy the situation within 30 days, then you can use this as a reason to file a eviction action against him.
IV. Should You Evict The Tenant?
A. Why You Shouldn’t
Let’s step outside the law for a bit. As a practical, dime, dollars and cents (and sense) matter, should you be evicting this tenant for what he or she did? First, are you evicting this person because of what he or she did, or are you using that as an excuse to evict someone who pissed you off? If so, that is your right, but it might not make good business sense.
Second, if winter is approaching, you may want to think about who will pay for the utilities so that the water pipes don’t freeze during the colder months. Third, you may want to check with your insurance agent since the rates for insuring uninhabited property are a lot higher than insuring property that people are occupying.
In the end, it is your property and your choice, but most successful landlords tend to evict only when the rent is not being paid or the property is being damaged.
B. Why You Should
While there are certainly reasons why you should not be filing an eviction, you should not fall for any of the following common tenant ruses to delay the eviction. Tenants are all about delay, and they have a lot of tricks to get a few more days, a few more weeks,
another month of staying at your place and not paying any rent.
Here are the most common things you will hear.
“I am waiting for my bonus.” The tenant will tell you that he has a lump sum of money coming from somewhere (usually a “bonus” at work, or sometimes a tax return if it is past the first of the year).
“I will pay you next month’s rent and get caught up on the past due rent next week.” You will never get any money.
“Here is a personal check for what I owe you.” The check will bounce.
“What is your address so I can send you a check?” The check will never arrive.
“I lost my job but I will be starting my new job next week, and two weeks after that I will get my first paycheck.”
All of these things have two things in common. They all feature delay if you accept the tenant’s word, and none of these claims are ever supported by documents. The best thing to do is to get the eviction process started and if the tenant comes up with the money during the process, you can always dismiss the eviction if you get paid. But you can’t ever get the time back if you get tricked into delaying the action.
V. The First Step in the Process: Required Notice
There are two types of notice required in an Ohio eviction. There is the 30 days notice, and the three day notice. The 30 day notice applies in some situations, and the three day notice applies in all situations.
A. The 30 Day Notice
If you are evicting because of a tenant’s violation of Ohio Revised Code Section 5321.05, then you have to give 30 days written notice to the tenant to remedy the situation. Then you can continue on to the second type of notice listed below.
If you are terminating a month to month tenancy, then you have to give 30 days notice (which will be calculated from the start of the next rental period) that you are ending the tenancy and that you wish the tenant to vacate. If the tenant remains past those 30 days, then you can move on to the second type of notice listed below.
B. The Three Day Notice
If the tenant has breached the lease agreement, and that breach is not also a violation of Ohio Revised Code Section 5321.05, then you can skip the 30 day notice requirement above and proceed directly to the three day notice to vacate. This three day notice must
contain certain statutorily mandated wording that is set off from the rest of the text in the notice. We have included a copy of this notice that works in Ohio.
A. Documentation of Posting
1. Photocopy of Three Day Notice
You will want to fill out the blank spaces in this notice, make a photocopy of the filled out form, and then tape it to the door of the rented premises. You will want to attach a copy of this notice you posted to your FED Complaint (more about this later).
2. Photo of Notice on Door
It is also an excellent idea to take a picture of the notice hanging there on the door since some tenants will come to court and argue that nobody ever put any such notice on the door. If you can show the court the picture of the notice on the door at the hearing, this goes a very long way to making this a non issue.
3. Timing of Notice
While the term “Three Days” seems pretty straightforward, as with much to do with the law, it isn’t. Rather it is a trap for the unwary. Ohio Courts have ruled that the day of the posting does not count. Further any day after posting during which the courts are not open (like weekends or holidays) do not count towards the three days.
Example Time: Larry Landlord posts his three day notice on Friday. Friday does not count as the first day since it was the day of posting. Saturday and Sunday do not count as the first day because the court is not open on weekends. Monday happens to be Martin Luther King Day, and so the courts are not open so Monday does not count as Day 1.
Thus Tuesday is Day 1, Wednesday is Day 2, Thursday is Day 3, and now the three days have passed and we can proceed to the next step.
VI. Filing of the FED Complaint
A. The First Claim for Relief: Possession
The next step in the process is the drafting and filing of the FED Complaint. We have included a copy of a complaint that works in Ohio with your materials. You will want to name every adult tenant at the place as a Defendant.
The most important part of the eviction action is the first part of it, the action for possession. The tenants may owe you a lot in back rent, but that is nothing compared to what the house is worth and what possession of the house so that you can get it rented to other tenants is worth. Thus if you look at the paperwork for the FED action with your materials, you will see that the first claim for relief is for possession of the premises. It is important for you to note that your initial hearing in the eviction will only address who has the right to possession. The Court might get into who owes what to whom, but only so far as that is relevant to who has the right to possession. The Court is not going to make a determination that X owes $5000.00 to Y at the first hearing.
B. The Second Claim for Relief: Money Damages
If the tenants owe you for unpaid rent, and/or if they have caused physical damage to the rented premises, then you can sue for that as well. This is typically referred to as the “Second Cause of Action” or the “Second Claim for Relief” or the “Money Damages Claim.” I include these claims for relief for all my landlords in case they want to waste their time going after these tenants for the unpaid amounts. But I have found that most tenants who aren’t paying rent for some reason won’t have any money to pay on a judgment even if you get one from the judge.
You don’t have to put such a claim in your complaint. It doesn’t hurt to do it, but you stand very little chance of ever seeing any money out of it.
C. Mechanics of Putting Together the Complaint
You will want to attach to this complaint a copy of the lease if there is one (if there isn’t one, mention that there either is no copy of the lease or that there is a written lease but that you don’t have a copy of it). Mark this as Exhibit A.
You will also want to attach a copy of the three day notice to vacate that was posted on the door. Mark this as Exhibit B.
You will want to make several copies of the FED once you have printed it out, signed it, and attached your exhibits. In Franklin County, if there is only one tenant, then I still make five copies and I usually only get one back from the court. If there is more than one adult tenant then you will want two extra copies for each extra tenant. If you have any doubt about how many copies your local court will need, call ahead, and remember that if you bring too many, they aren’t going to shoot you. If you don’t bring enough, they aren’t going to shoot you but you will go home angry.
D. Service of Process
You will want to specify the type of service that you want for the Defendant. Service of Process is the process by which you advise the tenants that you have filed an eviction action against them and that they need to come in and defend. There are different ways that you can do this.
1. Residential Posting By Bailiff
Most courts will offer Bailiff posting service, where the bailiff will take a copy of the FED together with a summons page out to the rented premises and post it on the door.
The summons page will tell the tenants when and where the hearing will be. Most landlords prefer this method since it is the quickest and most efficient way of getting service of process upon the Defendants.
2. Personal Service by Sheriff’s Deputy
You can also specify Sheriff’s Service where the Sheriff’s deputy will go out to the premises and knock on the door and attempt to serve the Defendants by handing them the summons page and the FED Complaint personally. Under Civil Rule 4, this is good service.
3. Certified Mail Service
You can instruct the clerk’s office to mail out the FED and the summons page by certified mail service to the rented premises. You want to be sure that you instruct the clerk to serve the Defendants by ordinary mail in case there is a failure of the certified mail (usually the tenants will refuse delivery or will not pick it up after three notices are placed on the door). Under Civil Rule 4, this is good service.
4. Appointment of Special Process Server
You can also make motion to the court to have a person not a party to the lawsuit and not your attorney, and over the age of 18, appointed as a special process server. When the Court confirms this person as process server which it will do by Entry, then that person
can carry a copy of the summons and the FED complaint out to the rented premises and attempt to hand it to the Defendants. Upon doing this, the process server will then fill out a Service Return form which will tell the court that service upon the defendants has been
perfected. Under Civil Rule 4, this is good service.
5. What is this Civil Rule 4 Stuff?
Civil Rule 4 outlines the way that Plaintiffs must get service of process upon Defendants in lawsuits in Ohio. Without service of process, whatever judgment you get against the Defendant is meaningless.
However, since evictions are summary proceedings, the Rules of Civil Procedure do not apply and the Ohio Legislature is free to enact alternate means of getting service of process upon the Defendants. This the Ohio Legislature has done through enactment of a law that allows for service by simply having the bailiff post the summons and the FED on the door of the rented premises.
However, while that is good service for the first claim for relief, the possession action, that is not good service for the second claim for relief for money damages. The distinction here is that since evictions are summary proceedings and thus can be handled quickly by the courts without the normal formalities (landlords and tenants can’t be expected to wait for months while a lawsuit winds its way through the system to find out whether or not they will still be living at a certain place or not), the second claim for relief for money damages has nothing special about it, and the full formalities of the civil rules do apply to it.
So if you want that second cause of action for money damages to mean anything, in addition to getting the bailiff to post the summons and the FED action on the door, you will also want to get the tenants served with one of the other methods of service under Civil Rule 4 listed above.
VII. The Hearing Date
A. Timing of the Filing to Get A Good Hearing Date
Before you file the FED action, you should ask the Court if they have a policy about when the hearing date will be. For instance, in Franklin County, unless you are near the Christmas Holiday, you can specify a two week period for the hearing. Otherwise, the Court will automatically assign the hearing for three weeks from the day you file it.
Other courts may not let you do this but will tell you that if you file the eviction on Day A, then the hearing will be on Day B.
Take a look at your calendar to make sure that Day B works for you. If it doesn’t, then you may want to delay filing the eviction for a few days so that the hearing date will work for you.
If you have more than one eviction, you will likely want to file them all on the same date so that you can have the hearings all set for the same date and you will miss less work.
B. Attending the Hearing
The Court will also give you notice of when and where the hearing will take place. When you get to the court, you will want to check in with the bailiff who will either be just outside the courtroom or in the courtroom up near the bench. Bring reading material or something to do because there will usually be a lot of hurry up and wait.
If this is the first time you have been to an eviction hearing, you will want to watch the hearings before you to get a feel for how things go. There are four ways that the hearings most commonly turn out.
1. Tenant Does Not Show Up
Often the tenant will know that he has no chance at the eviction hearing and is just waiting for the red tag to be put up on the door. These hearings typically go as follows: Bailiff: Case No. 2011 CVG 111111, Smith v. Jones. [Parties come forward and are sworn in]
Judge: Are you Mr. Smith?
Smith: Yes.
Judge: Do you own the premises at 123 East Main Street?
Smith: Yes.
Judge: Did you hang the three day notice that is attached to the complaint as Exhibit B on the door of the premises on April 2, 2011?
Smith: Yes.
Judge: When you hung the three day notice on the door, were the tenants behind on the rent?
Smith: Yes
Judge: Are the tenants still behind on the rent?
Smith: Yes
Judge: Are the tenants still occupying the rented premises?
Smith: Yes
Judge: There will be a judgment for restitution of the premises.
2. Tenant Appears But Does Not Fight
If the tenant shows up at the eviction hearing, that does not mean that they are there to fight the eviction. A lot of people view a summons to go to court as something that is mandatory and they fear that they will get in trouble if they don’t show up.
If the tenant shows up, the court will likely direct many of the questions above at the tenant. If the tenant admits that the three day notice was posted on the door, that he was behind on the rent, that he is still behind on the rent and still occupying the premises, then
the prima facie case against the tenant will be proved and the court will move on to whether there is anything that the tenant wants to say in his defense. We will get to the section on tenant defenses shortly.
3. Tenant Appears and Wants to Fight
The tenant may want to contest the facts alleged in the landlord’s eviction action. He may argue that the three day notice was never posted on the door. Here is where you will be glad that you kept attached a photocopy of the three day notice to your FED action and
you will be even happier if you took a picture of the three day notice hanging on the door and brought it in with you to show the judge.
If the tenant asserts other arguments such as factually contesting the breach of the lease or asserting defenses (more on this later), then the matter will likely be put aside for a hearing a bit later on after all of the easy cases have been called and adjudicated.
4. Tenant Appears and Moves for Continuance
Perhaps the most common thing that a tenant will do to get extra time without having to pay rent though is that they will show up and ask for a continuance. Certain courts have certain rules about such continuances. Some courts just won’t put up with that sort of thing unless there is a darned good reason. For instance, if the tenant hired an attorney, but the attorney was in a car crash on the way to the courthouse and cannot attend, even the strictest court out there will grant the continuance.
Other courts, like the Franklin County Municipal Court will grant the tenant one continuance for almost any reason whatsoever. If the tenant, who has known about the hearing for several weeks, comes in and tells the court that she is not ready to proceed because she has not yet gotten round to hiring an attorney, the court will give the tenant one week’s time to get an attorney. But in Franklin County, the court generally warns the tenant that there will be no further continuances of the matter and that if the tenant shows up again without an attorney, the case is going to go forward.
If you do any number of evictions, you are going to run into tenants who know the system well enough that they will know to request their one continuance, and you will know that they will get it. So just understand that arguing with the judge that the one continuance rule is unfair isn’t going to get you anywhere and you are just going to annoy the judge.
VIII. Tenant Defenses to Evictions
A tenant can assert several defenses to an eviction. These can be divided into those that have a chance of working and those that don’t have a chance at working. Let’s look at those defenses with no chance of working first. If you hear these defenses being asserted,
you don’t have to get all charged up about them because you will know that they are a tale told by a fool, signifying nothing.
A. Defenses That Won’t Work
1. Failure to Repair
If the tenant’s defense to the eviction is that you are a slumlord and that you never fix anything around the apartment which is falling apart, you can sit back and relax. The first question that the judge is going to ask is whether the tenant has escrowed the rent under Ohio Revised Code Section 5321.07. It is highly unlikely that the tenant timely escrowed the rent under this statute without you knowing about it prior to the hearing date of the eviction. When the tenant tells the judge that he didn’t know he could do that, the judge is going to ask if there are any other reasons why the eviction should not go forward.
2. Lost Job
Some tenants will argue that they meant to pay their rent but they got laid off at work and don’t have the money. The Court may sympathize, but in the end, the tenant’s problems cannot be transferred to the landlord without the landlord’s consent.
I guess it is possible to get a soft headed judge who turns to you after hearing this and says: “He says he lost his job. Would you be willing to give him some more time?” You might answer that you might be willing if you could ask him a few questions:
“When did you find out that you were going to lose your job?”
“When did you first tell me that you were losing your job and that youneeded some extra time?”
“Why am I hearing about this for the first time at this hearing, after I have spent all this money on filing fees and taking time off from work?”
“When you had a job, how much did you save in case something like thishappened?”
“What happened to that money?”
You get the idea….
B. Defenses That Can Work
A. Arguing Breach
The tenant may come in and argue that she did not breach the lease agreement. It is a simple fact argument and the judge is going to have to make a determination as to who is telling the truth.
a. Dispute Over Whether Rent Was Paid
You would think that a tenant would not come in and tell the court that he paid rent when that was not the case. But it happens all the time and you have to be prepared for it. If the matter concerns a failure to pay rent, the judge is going to look pretty skeptically at a
tenant who says that the rent has always been paid in full. The judge knows that most landlords are looking to collect rent, not kick people out who are paying on time.
But most judges also know that most landlords keep written records of when tenants pay and when they don’t. So if you show up at court with no logbooks showing amounts received and/or records showing how far the tenant is behind on rent, and all the court has to go on is your testimony saying you don’t remember being paid on July 1, then the Judge is going to wonder about you.
Judges know that most people who make payments to someone in cash ask for and receive a receipt for payments. Judges know that if a tenant pays by check, then there should be a cancelled check somewhere that could have been brought in for the judge to see. So if the tenant makes these claims, you need to be asking where the proof is that these payments were made.
1) Common Dodges
One thing that tenants love to do is to bring in a receipt showing where they purchased a money order in the amount of the rent. But the receipt does not show that they ever gave that money to you. For that, the tenant needs to run a trace on the money order to show
that it was cashed. But, the tenant will say, it takes several weeks for the trace to go through, and I only ordered the trace two or three days ago.
You combat this by asking for paperwork showing when the trace was ordered. You ask why, if the issue of payment had been in dispute for weeks, why did the tenant wait until just before the hearing to run the trace? Why did the tenant select a payment method that
would take so long to confirm? When has the tenant ever paid by money order before?
Tenants will also try the same thing with check registers, attempting to show the court that they wrote a check to the landlord for the rent. But this is a much more primitive form of the above dodge, and judges don’t go for it.
B. Equitable Defenses
Since evictions are equitable actions, they are subject to equitable defenses.
a) Waiver and Estoppel
Even if your lease agreement states that the rent is due on the first of each month, you may be open to the defense of waiver and/or estoppel if the tenant can show a pattern of behavior where you and he varied from the terms of the agreement on a regular basis.
The defense arises because if you accept late or partial rent payments without protest over a period of time, you have built up a reliance on the part of the tenant that such conduct was now acceptable. There are many rulings which hold that the landlord is estopped from pulling the rug out from under the tenant and requiring strict compliance with the prompt payment terms of the lease without proper notice to the tenant.
The only way to beat this argument is to show the court that one or two late payments isn’t enough of a pattern that the tenant should have been able to rely upon them, or you can perhaps show the judge that you had sent out a letter of strict compliance before the
latest late payment in which you told the tenant that the past conduct of accepting the rent late is all fine and good so long as it stays in the past, but from now on, you are going to insist upon the rent being paid on time. Now that you have put the tenant on fair warning
that you are going to be strictly enforcing the lease agreement, the judge will not see the past conduct as estopping you from going ahead with the eviction in the present case.
b) Accepting Future Rent after Posting of 3 Day Notice
The posting of the Three Day Notice to Vacate upon the door of the rented premises is jurisdictional to the case. That means that without such notice being posted, the court does not have the power to hear the case. Even if you posted the notice, the tenant may argue that you have waived the notice by accepting future rent after the posting of the three day notice.
So if the tenant did not pay April’s rent and you posted the three day notice on April 6, you cannot maintain the eviction action if you accept a check from the tenant that says “April and May’s Rent” in the memo section if the amount is proper for those months. By taking May’s rent from the tenant, you have waived the three day notice, and a waived three day notice is no three day notice at all.
C. Timing Defenses
a. Improper Counting of Three Days
As stated above, you have to wait three business days after hanging the three day notice and the date of the hanging of the notice does not count. If the tenant breaks out a calendar and shows the court that you filed the FED too soon, then your eviction is history and will have to be started anew.
b. Thirty Days Notice under R.C. 5321.05
The Ohio Landlord Tenant Act of 1974 imposes certain duties upon tenants pursuant to Ohio Revised Code Section 5321.05. If a landlord seeks to evict a tenant because of violation of one or more of these duties, the landlord must provide a written notice to the
tenant giving the tenant 30 days to cease and desist from continuing to be in violation.
In other words, the landlord must give 30 days’ notice to the tenant to get his act together before proceeding with an eviction. If the tenant argues to the court that your basis for the eviction is a breach of Ohio Revised Code Section 5321.05, you better be able to
show the judge a copy of the letter you sent out to the tenant that has the right date on it.
Many landlords attempt to make these R.C. 5321.05 obligations part of the lease in an effort to avoid the 30 day notice obligation. They then argue that the breach of R.C. 5321.05 should be treated the same as a breach of the lease since the lease incorporates that statute. However, making the obligations part of the lease will not waive the 30 day notice requirement. Several Ohio Courts have ruled that where the tenant’s action violates both the lease and R.C. 5321.05, the 30 days notice is required.
c. Periodic Tenancies and Expiration of Term of Lease
If you are evicting because the tenant won’t leave after the end of the rental relationship, you need to have been careful on the timing.
1) Periodic Tenancy Termination If your tenant was on a month to month tenancy, then such tenancy can be ended by following Ohio Revised Code Section 5321.17 which states that either the landlord or the tenant can end the tenancy by simply giving 30 days written notice to the other. But as stated above, that 30 days doesn’t start to be calculated until the start of the next rental period. So if the rental period starts on the first of the month and you tell your tenant on November 15 that you are ending the month to month tenancy, then the tenant’s 30 days notice does not start to count until December 1. The tenant will have to pay rent for the month of December, but you can’t file for an eviction until after December ends.
2) Lease Expiration
Some landlords don’t read their leases and consequently are surprised to learn that there is a clause in the lease that says that the landlord or the tenant must give 30, 45, or perhaps even 60 days written notice that they will be moving out at the end of the lease
term, and that absent such notice, the lease will automatically convert to either a month to month lease or will be renewed for another full year. Normally, this clause trips up tenants who don’t know about it and think that they can just leave when the lease ends because they did not sign a renewal agreement.
But the problem is that it can also bite the landlord who wants the tenant out. If the landlord does not send the tenant a letter informing the tenant that the landlord wants him out, then the lease will likely renew, for at least a short time, and you will have no grounds for the eviction.
D. Retaliatory Eviction
Ohio Revised Code Section 5321.02 states that if a tenant complains about conditions at the rental premises, or engages in acts of organizing other tenants, then the landlord cannot use this as a reason to evict him. So if the tenant can show evidence that he is
being evicted because he complained to the City Code Inspectors about the poor conditions at the apartment, and the court believes that this is really the reason the landlord seeks to have him out, rather than the landlord’s stated reason that the tenant is loud and noisy, then retaliatory eviction is a valid defense to the eviction action.
5. Escrowed Rent
Ohio Revised Code Section 5321.07 allows tenants to escrow the rent with the clerk of courts if the landlord has not fixed things around the rented premises. If the tenant has escrowed the rent, then this will be a defense against the eviction action and you remedy will be to file a Motion to Release the Rent from Escrow.
IX. Compromise
When you get to court you may discover a hole in your case. Neither you nor the tenant will know for sure how much damage that hole will do. But the Court will likely have blank “Agreed Entry” forms onto which the litigants can write down their agreement as to how the case will be settled. If the tenant will move out voluntarily pursuant to such an Agreed Entry, then this is better than getting a Judgment.
A. Terms of an Agreed Entry
There is an example of an Agreed Entry in your digital materials. Please see the section below about what tenants want as this will help you to bargain with them.
B. What Tenants Want And What You Can Give Them
The primary thing that a tenant wants is time in your apartment unit without paying. Most tenants realize that they cannot stay at the apartment rent free, or even while behind on the rent, indefinitely. So the trick is to give them the time that they would have had anyway, and get them to sign the Agreed Entry committing to be out by a certain date.
An eviction normally takes anywhere from 30 to 35 days from start to finish. So if you are 15 days into the process and the tenant is willing to sign an agreed entry that he will be out in 15 more days, then you really aren’t giving up anything because even if you win
the eviction, it will take you about that same amount of time anyway to get the tenant out.
X. The Magistrate’s Decision
Most FED hearings are conducted not by a judge but by a Magistrate. A Magistrate is an attorney who has been practicing law for at least 5 years and has been appointed to the position of Magistrate by a Judge under Civil Rule 53. The Magistrate functions as an extra set of eyes and ears for the judge, hearing evidence and then writing up Magistrate’s Decisions which function as recommendations to the Judge. Once the Judge gets the Magistrate’s Decision, if the Judge approves it and signs his name to it, the Magistrate’s Decision becomes the enforceable entry of the Court, every bit the same as if the Judge had If you get a Magistrate’s Decision in your favor granting you possession of the premises, this will still have to be signed by the judge and posted on door by the bailiff before anything can happen with regard to getting back possession of the premises.
XI. Writ of Restitution
Once the judge has signed the Magistrate’s Decision and made it official, you can apply for a Writ of Restitution. This sometimes involves and additional court fee (in Franklin County the charge is an additional $35.00 but in many places it is no extra charge. Upon filling out the papers for the Writ and paying for it, the clerk will alert the bailiff who will go out (usually the next working day) and post the Writ on the door. Once the time limit specified in the writ passes (three to as much as seven days), then if the tenant is still at the rented premises, then you will have to get a Praecipe for a Set Out.
XII. Praecipe for Set Out
The Praecipe for Set Out is really little more than filling out the paperwork that the clerk’s office needs to send the bailiff out to the premises to supervise your changing the locks and setting out the tenant’s stuff on the curb. In Franklin County this is an additional charge of $45.00, but in other courts there is no extra charge. You will have to pay of your own locksmith and work crew to remove the tenant’s belongings. Most Baliffs like to see at least four big guys with garbage bags because the bailiff does not want to stand around for 8 hours while one person carries out a shoe box of stuff every fifteen minutes. The Bailiff wants to be off to his/her next set out within 30 minutes.