April 04, 2016
“A landlord is liable for violations of his or her statutory obligations only if he or she has received notice of the defect and fails to make necessary repairs; the fact that a condition violates the housing code does not render the landlord liable to the tenant in the absence of such notice.” 65 Ohio Jur. 3d Landlord and Tenant § 310.
The statutory obligations of a landlord are enumerated in R.C. § 5321.04 and include:
(1) compliance with building, housing, health and safety codes;
(2) keeping the premises in a fit and habitable condition;
(3) keeping common areas safe and sanitary;
(4) maintaining electrical, plumbing, sanitary, heating, ventilating, and air conditioning fixtures and appliances and elevators in good and safe working order;
(5) providing receptacles for garbage, etc.;
(6) supplying running water, hot water, and reasonable heat;
(7) comply with access provisions of O.R.C. § 5321.05(B);
(8) give reasonable notice of intent to enter except in case of an emergency;
(9) comply with O.R.C. § 1923 for eviction proceedings; and
(10) comply with rights of tenants under Serviemembers’ Civil Relief Act, 117 Stat. 2835, 50 U.S.C. App. 501. (R.C. § 5321.04(10) became effective 09/28/2012, 2012 HB 490 §1)
“The Revised Code gives tenants the right to pursue a dispute with their landlords without being evicted from the premises. The statute is, however, permissive and not mandatory, and a tenant who fails to give written notice alleging violation of the lease agreement or statute is not thereby denied the right to raise any defenses or counterclaims which he or she may have against the landlord in an action by the landlord for restitution of the premises and damages. On the other hand, the statute does not create a right for a tenant to remain in possession without paying rent, either to the landlord or into court.” 65 Ohio Jur. 3d Landlord and Tenant § 310.
“Landlord who rented property containing house and two barns failed to keep common areas of premises in a safe and sanitary condition, and to make repairs and do what was reasonably necessary to put and keep premises in a fit and habitable condition, as required by statute, and tenants thus were authorized to terminate lease on date it commenced, where premises were in poor repair and generally unclean, barns were infested by wild cats, and landlord had failed to remove three-foot-high pile of horse manure outside barn.” Shoemaker v. Whitt (Ohio App. 2 Dist., 08-28-1998) 129 Ohio App.3d 591, 718 N.E.2d 932.
Constructive Eviction Examples:
When Tenant gained possession she found basement flooded with water and debris. She left the premises and notified landlord she could not move in to the apartment in its present condition. When tenant returned several days later to check on repairs, she discovered the locks had been changed. Appellate court affirmed trial court’s decision that the uninhabitable living conditions violated R.C. § 532104 and, combined with landlord denying tenant access, amounted to constructive eviction so that tenant had a right to terminate the lease under R.C. § 5321.07 and was entitled to a return of the first month’s rent, the security deposit, and costs. Keener v. Ewert, 67 Ohio App. 2d 17, 425 N.E.2d 914 (Ohio Ct. App. 2nd Dist. Lucas County, 1979).
“Two weeks was an unreasonably long time period in which to make tenant's apartment habitable following tenant's initial report of a water leak in ceiling of apartment, and thus, failure to fix ceiling within two weeks constituted constructive eviction and tenant was
permitted to terminate lease agreement; eight days after tenant initially reported leak, and after maintenance made two unsuccessful attempts to remedy issue by poking holes in ceiling, tenant reported to landlord that her “ceilings were ready to cave in,” at which
time maintenance fixed a leak and cut a hole in ceiling, and although tenant was told that ceiling would need three or four days to dry prior to completing repairs, it was not repaired five days later when she vacated apartment.” Stiffler v. Canterbury Runn Apts. (Ohio App. 2 Dist., Montgomery, 10-04-2002) No. 19308, 2002-Ohio-5382, 2002 WL 31243541, Unreported, appeal not allowed 98 Ohio St.3d 1477, 784 N.E.2d 710, 2003- Ohio-974.
“Leaking basement of apartment which resulted in thoroughly soaked carpeting and resultant mildew and its odor constituted condition that affected habitability of apartment and this breach of the warranty of habitability resulted in constructive eviction of tenant; apartment was rented to tenant with a carpeted basement leading tenant to believe that basement was habitable part of the apartment and tenant was effectively unable to utilize basement which represented substantial deprivation of the premises since basement represented approximately one-third of the apartment.” Weingarden v. Eagle Ridge Condominiums (Ohio Mun., 06-06-1995) 71 Ohio Misc.2d 7, 653 N.E.2d 759.Landlord And Tenant
Slum Lord / Sup. Ct Case:
Miller v. Ritchie, 45 Ohio St. 3d 222 (1989).
Outcome: Tenants did not waive their right to damages by continuing to occupy the defective rental property for more than two years without pursuing remedies available to them under O.R.C. § 5321.07.
Condition of Property:
At the complaint of your tenant, Mr. Richey [sic], this department made inspection of apartment #1, January 20, 1986. The following is our findings and orders:
1. The electric is very hazardous and possibly life threatening. See enclosed electrical inspector’s report.
2. There are holes in the floor one as large as 16’’ X 16’’.
3. Waste water in the second floor apartment is running down into the first floor apartment. We have notified the Board of Health about this.
4. There are areas where the ceiling has come down.
5. There are no hand rails on the steps to the second floor.
Reference Section 816.51 OBBC.”
“Appellant tenants rented an apartment from appellee landlord. Appellee later initiated a forcible entry and detainer action against appellants seeking restitution of the apartment and unpaid rent. An appellate court reversed a lower court's judgment in favor of appellants, finding that appellants were not entitled to damages because they continued to occupy the apartment over an extended period of time without pursuing the statutory remedies under Ohio Rev. Code Ann. § 5321.07 of the Landlords and Tenants Act. Appellants sought review.
The court held that where a landlord had been placed on notice of a tenant's claim, the tenant's occupancy of defective rental premises over a lengthy period of time did not constitute a waiver of the landlord's duty to maintain the premises as required by Ohio Rev. Code Ann. § 5321.04, or a waiver of the tenant's right to recover for damages resulting from the landlord's breach of duty.”