Chapter V: Problems During Your Tenancy

A. Problems Caused By The Landlord

1. The Way Things Used To Be

The way the law used to be a long time ago was that once the landlord was out of possession of the rented property, all of his obligations to the tenant ceased. The tenant had to make all repairs and improvements. It was as if the tenant owned the property completely during
the term of the tenancy. If the furnace went out, too bad, the tenant must pay for repairs or be cold. And if the cold burst the pipes, the tenant was responsible for that too.

2. Implied Warranty of Habitability

Eventually the law evolved so that there was an implied warranty of habitability construed in every lease. This meant that even if the lease says that the landlord makes no promises regarding the habitability of the apartment, he still is responsible to keep it in a condition that
allows the tenants to live in it. The term “implied” means that even though the term is not in the lease, the Court will pretend that it is. Thus, if the furnace goes out in January, the landlord’s failure to promptly remedy the situation will amount to a breach of the implied warranty of
habitability found in all leases.

Ohio landlord-tenant law traces its roots to the English Common Law. In 1863, an English court applying the common law held:

[F]raud apart, there is no law against letting a tumble-down house. Robbins v. Jones (1863), 15 C.B.N.S. 221, 240, 143 Engl. Rep 768, 776.

Gradually though, courts began to imply into every contract a warranty of habitability. The problem with this was that things had to be so bad at the apartment that they amounted to constructive eviction. Until 1974, Ohio adhered to the common law view. Burdick v. Cheadle (
1875), 26 Ohio St. 393; Shinkle, Wilson, and Kreis Co. v. Birney and Seymour (1903), 68 Ohio St. 328, syllabus; Rotte v. Meierjohan (1946), 78 Ohio App. 387, 389; Branham v. Fordyce ( 1957), 103 Ohio App. 379, paragraph two of the syllabus. However, in 1974, Ohio abandoned
the common law when the Ohio General Assembly enacted comprehensive legislation in R.C. Chapter 5321 which dramatically altered the relationship between landlords and tenants in residential rental agreements. Shroades v. Rental Homes (1981), 68 Ohio St. 2d 20, 22.

All this is important when it comes to dealing with problems at the apartment. When you have serious problems at your apartment that aren’t getting fixed, you will want to leave the apartment and find some other place to live where the landlord fixes things. But back in the bad
old days where the tenant’s only protection was the implied warranty of habitability, the only way to cut short a lease term before its end on account of the landlord’s failure to fix the apartment was if the conditions at the apartment were so bad they amounted to constructive
eviction. But the Landlord Tenant Act of 1974 changed a lot of things and balanced this area of the law so that landlords do not have so many advantages over tenants anymore.

a. Constructive Eviction

Constructive eviction is when the landlord takes an action or engages in a course of inaction which makes it impossible for the tenant to live in the premises. It is another way of saying that there has been a breach on the part of the landlord of the Implied Warranty of
Habitability. An example of this might be a condition which results in no running water at the apartment. This constructively evicts the tenant because no one can live in an apartment in this day and age without running water (despite your landlord’s arguments to the contrary). If the
landlord fails to fix the furnace in January, this amounts to constructive eviction via his inaction. Conditions had to be pretty harsh before a court would find a constructive eviction. No heat in July wouldn’t do it. Ugly stains on the ceilings and walls wouldn’t do it. Lack of hot
water might not do it. A ceiling fan that emitted a constant loud buzzing noise wouldn’t do it. The conditions had to be so bad that it was almost as if the landlord had changed the locks on the door of your house. The condition had to be so bad that it actually and dangerously affected your
health and safety to live there.

3. Landlord Tenant Act of 1974

Then the law evolved again, into its present form, this time at the behest of the Ohio Legislature in 1974’s Landlord Tenant Act. There are several provisions to R.C. 5321. They range from 5321.01 (the definitional section of the act) to 5321.18. The provision of the Act in
question here that covers your landlord’s breach of the implied warranty of habitability is Ohio Revised Code Section 5321.07 and it is reprinted directly below:

PAGE’S OHIO REVISED CODE ANNOTATED
Copyright (c) 1998 Anderson Publishing Company
*** THIS DOCUMENT REFLECTS CHANGES RECEIVED THROUGH NOVEMBER 1, 1998 ***
TITLE LIII [53] REAL PROPERTY
CHAPTER 5321: LANDLORDS AND TENANTS
ORC Ann. 5321.07 (1998)

§ 5321.07 Notice to landlord to remedy condition; deposit of rent with court or other remedies.

(A) If a landlord fails to fulfill any obligation imposed upon him by section 5321.04 of the Revised Code, other than the obligation
specified in division (A)(9) of that section, or any obligation imposed upon him by the rental agreement, if the conditions of the
residential premises are such that the tenant reasonably believes that a landlord has failed to fulfill any such obligations, or if a
governmental agency has found that the premises are not in compliance with building, housing, health, or safety codes that
apply to any condition of the premises that could materially affect the health and safety of an occupant, the tenant may give notice in
writing to the landlord, specifying the acts, omissions, or code violations that constitute noncompliance. The notice shall be sent to
the person or place where rent is normally paid.

(B) If a landlord receives the notice described in division (A) of this section and after receipt of the notice fails to remedy the condition
within a reasonable time considering the severity of the condition and the time necessary to remedy it, or within thirty days, whichever
is sooner, and if the tenant is current in rent payments due under the rental agreement, the tenant may do one of the following:

(1) Deposit all rent that is due and thereafter becomes due the landlord with the clerk of the municipal or county court
having jurisdiction in the territory in which the residential premises are located;

(2) Apply to the court for an order directing the landlord to remedy the condition. As part of the application, the tenant
may deposit rent pursuant to division (B)(1) of this section, may apply for an order reducing the periodic rent due the
landlord until the landlord remedies the condition, and may apply for an order to use the rent deposited to remedy the
condition. In any order issued pursuant to this division, the court may require the tenant to deposit rent with the clerk of
court as provided in division (B)(1) of this section.

(3) Terminate the rental agreement.

(C ) This section does not apply to any landlord who is a party to rental agreements that cover three or fewer dwelling units and who
provides notice of that fact in a written rental agreement or, in the case of an oral tenancy, delivers written notice of that fact to the
tenant at the time of initial occupancy by the tenant.

(D) This section does not apply to a dwelling unit occupied by a student tenant. [Don’t freak out about this Section D if you are in
school. I’ll explain later].

Some landlords will point to the provisions of Ohio Revised Code Section 5321.07(C ) that state that this section does not apply to landlords who own three or fewer rental units. But this only works for the landlord if the rental agreement specifically identifies that landlord as
fitting into this category. I have seen very few rental agreements containing this language. This is primarily because most leases are form leases, meaning that they were pulled out a book and reprinted word for word. Since the author of the book had no idea whether the user of the lease has more than three dwelling units, they typically leave this out.

In short form, if there is something that the landlord promised to do in the rental agreement (for example, your landlord’s promise to fence in the back yard) or if there is a condition at the apartment that materially affects the health and safety of the tenants (for example a
sparking outlet), the tenant should give written notice to the landlord describing the problems.

If the landlord has not remedied the problems within 30 days from receipt of written notice of the problem, then the tenant has three options if he is current on his rent. The first option involves going down to the courthouse and escrowing his rent with the Clerk of Courts. The Clerk
will then send a notice to the landlord that the rent is being escrowed, and the rent will not be released to the landlord until the problems are fixed. The landlord will, of course, be allowed a hearing before the Court to argue that you have either not complied with the statute (perhaps he
will argue that you were late on rent when you first started escrowing, or that you never sent written notice) or he will argue that he has taken care of the problems.

The second option is that the tenant can file a motion to compel repairs with the Court. The Court may require the tenant to start depositing his rent like in option number one as a condition of this option.

The third option available to the tenant is that she may terminate her lease and move out. Even though the statute doesn’t say it, my experiences have informed me that if you wish to exercise this third option, conditions at your apartment better be pretty bad. Courts will not
require such bad conditions to exercise the first two options. You also better stand ready to prove what you are saying with documentation. Don’t worry about the part about it not applying to a student tenant. The definition of a “student tenant” only includes those people who live in
housing that is provided by a learning institution (such as a dormitory). So don’t think that your landlord can evade your remedies under R.C. 5321.07 because you are in school.

A. Escrowing the Rent

The long and short of all of this is that your remedy for a landlord’s failure to fix the apartment is not to simply quit paying rent until the items are fixed. Do this, and you will be without significant legal rights. Do this, and the judge will tend to view you in the same dim
light that she views the landlord. Do this, and lose your case. Follow the dictates of the statute instead. You will be happier in the long run and your landlord will be unhappy in the long run.

Remember that you can’t escrow your rent by opening up a checking account at a bank and depositing it there. You must pay the Clerk of Courts. Also, you need to be on time with your rental payments. Do not pay the rent late to the Clerk of Courts. Do not bounce checks to
the Clerk of Courts. The best way to avoid bouncing checks to the Clerk of Courts is for all of your roommates to pay you, and then you go down to the Clerk of Court’s office with a Money Order or a Cashier’s Check for the proper amount. Cashier’s checks are preferable to your
personal checks because if your roommate bounces a check to you, then yours to the Clerk will likely bounce as well. If you go down with five checks from five different people, one of your roommates will eventually bounce one. Also, be advised that you must be current on your rent to
invoke the escrow option. If your landlord can prove that you owed money from before, then he can get the money in escrow released to him and you have to start over again.

B. The Thirty Day Rule

Thirty days is a long time to wait to get some things fixed. Be advised that the landlord only has a reasonable time to fix the problem, or thirty days, whichever is sooner. This means that 30 days is the longest that he can take to fix the place. If the Court determines that 14 days
is a reasonable time to fix the lack of air conditioning in July, then so be it. The problem here is that “reasonable” is a term that is open to many possible constructions depending upon the Judge that you get in your case. There aren’t a whole lot of ways to interpret the term “Thirty days.”

For example, the sink in your kitchen gets clogged up and the landlord ignores your letter on the subject for 21 days. There is rotting food/water in the sink that is stinking up the kitchen. You can’t stand it anymore so you move out. Your landlord sues you for not paying your next
month’s rent under the lease and you get before a Judge. You tell the Judge that you waited 21 days for the landlord to fix the sink. The Judge tells you that 27 days was a reasonable time to wait. You lose.

Now if you had stuck it out for 30 days, you wouldn’t have this problem. Thirty days is what is termed in law as a “bright line test.” The Ohio Legislature gave you this bright line test so that you would never be faced with a Judge telling you that you should have waited 33 days.
You tell the Judge that you waited thirty days and the landlord still didn’t fix it. The Judge’s hands are tied. He and the landlord could be old golfing buddies, and the Judge will still have to find in your favor. So do yourself a favor. Stick it out if you can.

C. Termination Of The Rental Agreement

To get the Court to uphold your rights to do this, you had better be able to prove that conditions at your apartment are absolutely unlivable. You’d be shocked at what a Judge thinks you could have put up with. Use this option as a last resort if escrowing or the motion to compel
doesn’t work. We’re getting back to the old constructive eviction standard on this one. It shouldn’t be that way. The statute itself makes no distinction between the seriousness of the conditions and your rights to choose any of the three options, but it is in my experience that a
judge won’t let you out of the lease unless things are intolerable.

D. Calling the Health Department

There are various governmental agencies that can help you with problems with your landlord. Some are at the County level, and some are at the City level. A call to the local governmental authority that oversees apartments can be a very powerful tool. Since this agency
is known by many names, I shall collectively refer to all such departments as the “Health Department.”

Even a new apartment building, or one that has just recently been refurbished can have several code violations within it. These can range from something rather minor (to repair, at least) like not having a sufficient number of working smoke detectors, to something more
substantial, like insufficient window space (window space is important in any sleeping room as there always has to be two ways to escape the room in case of a fire).

Landlords know that the Health Department is not an agency that they want to mess around with. The Health Department has the ability to force the landlord to make repairs within a limited amount of time, or face an emergency eviction order placed upon the apartment. At that
point the tenants will be kicked out and it will be the landlord’s breach of the lease. Often, the tenant will call about a very minor but annoying problem (one that they would not have wanted to leave the apartment over) and the Health Department comes in and finds several unrelated code violations. There have been examples where the tenant gets evicted by the Health Department because the landlord didn’t fix all of the Health Department’s concerns quickly enough and the tenant has to go off looking for a new place to live. Naturally the tenant does not have further liability to the landlord in such a case, but that is cold comfort to someone that did not expect to have to move in the middle of January. Cold comfort indeed.

So the moral of the story where the Health Department is concerned is to use this tool judiciously. Often the threat of calling the Health Department is much more effective than actually calling them. If you do actually call them, you should be prepared to have to leave the
apartment on short notice if the Health Department finds various violations.

E. Required Renovations

Many people wonder whether there is any law that requires a landlord to do monthly maintenance or certain renovations from time to time. They wonder if the law requires the landlord to clean or paint the apartment prior to their move in. They wonder if the landlord is
required to put in new carpet every so often. Lots of landlords let their properties go from year to year without doing anything. They see the property as a cash cow that is giving out the money without having to be fed, and they are going to milk it for as long as they can.

This is especially true of landlords who have long term tenants rather than those who turn over from year to year. If you live at an apartment for three years, and renew your lease for a fourth, don’t expect the landlord to come in and paint the place. Such landlords always run into
problems in the end because when you put off regular repairs and upgrades, it just gets more expensive to do them down the road. As a landlord myself, I try to do one major project to my apartment building per year. One year it might be new carpet, the next year it might be a new
deck on the back, a new roof for the garage, etc.

While good sense requires that I do this, the law does not. The landlord is not required to do anything except keep the apartment in a safe and habitable condition. If the carpet is fraying badly and could be easily tripped over, then this might rise to the level of a health hazard. But
dingy paint is hard to argue as a health hazard. The long and short of the story is that if you want something done and it either was not promised in the lease or does not threaten your health and safety, then your remedy is to look for another apartment.

Be advised that you will have some bargaining power if your lease is coming up for renewal. This is especially true if you have always paid the rent on time and not caused any problems for the landlord. The landlord does not want to replace a good tenant with an
unknown. The landlord will also go through expenses to advertise and show the apartment, as well as other customary costs of getting the apartment ready for a new tenant. He may figure if he is going to have to incur these costs anyway, why not just spend some money and keep the rent checks rolling in? But of course some landlords don’t think the way I do. Go figure.

F. Appliances

It is an open question as to who has the duty to repair your stove or refrigerator if it stops working. While Ohio Revised Code Section 5321.04(A)(4) states that the landlord shall “Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating,
ventilating, and air conditioning fixtures and appliances, and elevators, supplied or required to be supplied by him, ” it is also true that Ohio Revised Code Section 5321.05(A)(7) states that the tenant shall “Maintain in good working order and condition any range, refrigerator, washer, dryer, dishwasher, or other appliances supplied by the landlord and required to be maintained by the
tenant under the terms and conditions of a written rental agreement.” These two statutory sections seem to conflict.

There aren’t any Ohio law cases that decide this issue. Judges will then be guided by their own senses of fairness. What will likely happen in a dispute over repair of a stove is that the Judge will ask whether the tenant broke it through some improper action, or whether it just
stopped working because it is old and in need of repair.