Chapter VI: Landlord Retaliation

One thing that your landlord cannot do to you is retaliate against you for asserting your rights as a tenant. As soon as you start complaining about substandard conditions at your apartment, the landlord’s natural inclination is to say that if you don’t like it, get out. Move. And if you won’t move voluntarily, here’s an eviction notice. The Ohio Landlord/Tenant Act of 1974 gives you some protections against such landlords and it is reprinted directly below:

PAGE’S OHIO REVISED CODE ANNOTATED
Copyright © 1999 Anderson Publishing Company
*** THIS DOCUMENT REFLECTS CHANGES RECEIVED THROUGH MARCH 29,
1999 ***
TITLE LIII [53] REAL PROPERTY
CHAPTER 5321: LANDLORDS AND TENANTS
ORC Ann. 5321.02 (Anderson 1999) § 5321.02 Retaliatory conduct of landlord prohibited.

(A) Subject to section 5321.03 of the Revised Code, a landlord may not retaliate against a tenant by increasing the tenant’s rent, decreasing services that are due to the tenant, or bringing or threatening to bring an action for possession of the
tenant’s premises because:

(1) The tenant has complained to an appropriate governmental agency of a violation of a building, housing, health, or safety code that is applicable to the premises, and the violation materially affects health and safety;

(2) The tenant has complained to the landlord of any violation of section 5321.04 of the Revised Code;

(3) The tenant joined with other tenants for the purpose of negotiating or dealing collectively with the landlord on any of the terms and conditions of a rental agreement.

(B) If a landlord acts in violation of division (A) of this section the tenant may:

(1) Use the retaliatory action of the landlord as a defense to an action by the landlord to recover possession of the premises;

(2) Recover possession of the premises; or

(3) Terminate the rental agreement.

In addition, the tenant may recover from the landlord any actual damages together with reasonable attorneys’ fees.

(C ) Nothing in division (A) of this section shall prohibit a landlord from increasing the rent to reflect the cost of improvements installed by the landlord in or about the premises or to reflect an increase in other costs of operation of the premises.

So what do you do if a landlord retaliates against you? The first thing is to figure out if the action that the landlord took is illegal. You are only protected under the statute if the retaliation is in the nature of an increase in rent, a decrease in services required to be provided, or a threatened eviction. Your landlord’s refusal to go through with his plans to paint the garage after your
complaints on other matters will probably not be sufficient. Your landlord’s unfriendliness to you after a complaint will probably not be sufficient.

The second hurdle that you must get over is that you must show that the action that your landlord took was motivated by the desire to retaliate against you. It’s troublesome to prove intent. Intent is by its nature a subjective, rather than an objective thing. The Judge will never be able to look into your landlord’s mind and see undeniable evidence of retaliatory intent. This means that in the end it will be the Judge or the jury (if you have asked for one) who makes the call on what your landlord’s mind set is. There are no guarantees when you are dealing with a subjective intent determination. You complain about a sparking outlet, the next thing you know the landlord has someone else that he wants to move into your apartment and you receive a thirty day
notice terminating your month to month tenancy. The landlord argues to the Court that he just likes this new person better as a tenant.

Not knowing how the Judge is going to rule works for you and against you. It works against you because you are uncertain. Every piece of evidence might point in your direction, but you still lose because the Judge just doesn’t see it your way. But it works for you as well because there is no way that the other side can tell what is going to happen either. They are in that same scary boat as you are on those same high seas. None of this means you are going to lose or going to win. Just remember that no matter how good your case is, it is, in the end, a crap shoot. So if the other side is hanging out a good decent settlement offer that is fair, take it.

It will be your burden of proof to show that your landlord was motivated by a desire to retaliate against you when he hung that three day notice of eviction on your door or increased the rent by one third. Although RC § 5321.02(A)(1) provides that a landlord may not retaliate because of a complaint made to a government agency, the finder of fact must independently determine the reasons behind a landlord’s action. A tenant must, therefore, show by a preponderance of the evidence, that the relationship between the complaint and action resulted from a retaliatory motive: Weishaar v. Strimbu (1991), 76 OApp3d 276, 601 NE2d 587; Howard v. Simon (1984), 18 OApp3d 14, 18 OBR 38, 480 NE2d 99.

Once a tenant has met his burden of proof under RC § 5321.02 by showing, by a preponderance of the evidence, that the landlord’s decision to evict was in response to the tenant’s complaints regarding housing code violations, then it becomes the landlord’s duty to prove that he brought the eviction action in accordance with RC § 5321.03(A): Karas v. Floyd (1981), 2 Ohio App.3d 4, 440 NE2d 563. Just because a tenant’s complaint to a landlord is closely followed by the landlord’s retaliatory action, this does not create a presumption that the landlord’s conduct was retaliatory under the statute. While the temporal proximity of the actions of the
parties may be a substantial factor in the Judge’s analysis of a landlord’s motives in desiring to regain possession of a rental unit, such evidence does not create a presumption of retaliatory motive under Ohio law. Karas v. Floyd (1981), 2 Ohio App.3d 4. In other words, proximity in time between the complaint and the adverse action taken against you by the landlord is darn good evidence, and you’re glad as heck to have it, but it does not decide the case unless the Judge or Jury thinks it does.

Evidence of the circumstances of the action may be used to prove that a rent increase was retaliatory: Blue v. Castlerock Properties, Inc. (1996), 77 OMisc2d 1, 665 NE2d 295. The fact that your landlord had never before complained about the noise your dog supposedly makes and then suddenly starts writing you a bunch of letters threatening eviction because it barked last night
is circumstantial evidence of your landlord’s intent. In fact, circumstantial evidence is all you usually have when you are trying to show someone’s intent.

One quick note here. There are two types of evidence, direct evidence and circumstantial evidence. Direct evidence is evidence that, if believed, decides the matter. For example, Jim testifies that he has known Joe all of his life, and he saw Joe rob the bank. If you believe Jim, then Joe is guilty. That’s direct evidence. Circumstantial evidence is evidence that even if you believe it, it doesn’t necessarily mean that something happened. A gun that looked like the one used in the bank robbery was in Joe’s apartment. You can believe the gun was there, and even that it looks like the one that robbed the bank, and still believe that Joe is innocent.