Chapter XII: Unauthorized Entries By The Landlord

Unfortunately, there are a lot of landlords out there that think that because they own the place, they can come and go as they please. To be sure, there are a lot of legitimate reasons why landlords need to make entries into the apartment while you are living there. One is because you are not going to be living there forever, and they need to show the apartment at times to prospective new tenants. They also may want to make improvements and repairs while you are there.

A. What is an Unauthorized Entry?

First, we must define the meaning of the word “entry.” You may live in a multi unit apartment building. There is probably a common area in the apartment, like a hallway or stairs that leads to one or more of the units. Your landlord is free to enter such areas as often as he wishes with no notice to you. You only have a right to be free from his intrusions into your apartment.

The law says that the landlord must give reasonable notice of his intent to enter the premises unless it is impracticable to do so or there is an emergency. Ohio Revised Code Section 5321.04(A)(8) requires this. The law will presume that 24 hours notice is reasonable, but there may be certain factual situations that would require the landlord to give you more or less notice than this. Obviously, if you are away on vacation and the tenant who lives below you is complaining that a pipe has burst in your bathroom, the landlord is not going to wait a week until you get back from Florida to ask permission to enter your apartment. But just because the landlord thinks that something is an emergency does not necessarily make it so. The landlord bears the risk of making a poor decision later in Court.

What happens if the landlord enters your apartment improperly? The law says that you can terminate your lease and/or sue for damages. In reality, the results are mixed. Many judges don’t think it’s a big deal if your landlord walks into your apartment without warning at 9:00 on a Saturday morning while you are showering with Friday night’s conquest. Try walking into the
Judge’s house under the same conditions and you will find yourself at the police station answering some rather pointed questions from a Prosecutor. Some judges don’t seem to mind if it’s your apartment. This sucks, but that’s life. The lesson is, don’t believe it when someone tells you that you can terminate your lease upon your landlord’s unauthorized entry into your
apartment. They are technically correct, but it doesn’t always work that way.

In the case of T.K.D. Enterprises v. Zimmerman, 1998 Ohio App. LEXIS 3167(July 2, 1998) Fourth Appellate District (unreported) the trial court ruled that even though the landlord had made several unauthorized entries in violation of the rental agreement, these entries were minor violations of the rental agreement, and for repairing the problems that the tenant complained about. Thus, the trial court reasoned, the tenant had no right to terminate the lease. But the Fourth District Court of Appeals in Athens County disagreed and stated as follows:

However, taking the facts as found by the trial court, we find a different legal conclusion is required here. The legal question raised on these facts is not whether the unauthorized entries by T.K.D.’s repairmen violated the “lease” (as the trial
court ruled). R.C. 5321.13(A) generally provides no statutory provision of the Landlord/Tenant Act may be waived or modified by the parties’ agreement, except in prescribed limited circumstances which do not apply here. Thus, even if the parties’ written lease agreement had permitted unannounced entries by the landlord, their written agreement could not supersede Ohio’s statutory mandates.

Thus, our first consideration is whether these unannounced entries violated the statutory prohibition of R.C. 5321.04(A)(8).

We begin by observing that the Landlord-Tenant Act balances the legitimate rights of each party. R.C. 5321.05(B) confers on the landlord a right of access to the property for the very purpose these parties contemplated - specifically, making
needed or agreed repairs:

“The tenant shall not unreasonably withhold consent for the landlord to enter into the dwelling unit in order to inspect the premises, make ordinary, necessary, or agreed repairs, decorations, alterations, or improvements, deliver parcels that are too large for the tenant’s mail facilities, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen, or contractors.”

But, in accessing the property, the landlord must comply with the reasonable notice requirements of R.C. 5321.04(A)(8), and enter only at reasonable times, unless there is an emergency or it is impracticable to do so.

If a landlord abuses the right of access, the tenant may give written notice to the landlord specifying the acts or omissions which constitute noncompliance. If, after receiving this notice, the landlord enters again without reasonable notice and the
tenant is current in rent, then the tenant may elect to terminate the lease agreement as one of several remedies under R.C. 5321.07(B). See White, Baldwins, Ohio Landlord Tenant Law, § 16.6. n2 R.C. 5321.04(B) also provides termination of the
rental agreement is an option for a tenant where a landlord makes an entry without reasonable notice as required by R.C. 5321.04(A)(8). TKD pp. 10-12

The Fourth District Court of Appeals, while making a ruling that generally follows the letter of the law, did add a little something to the law when it stated in its footnote:

While the statute does not expressly provide that the right to terminate arises only after notice and a second violation, we join commentator White in implying such a condition. A single unintentional or good faith violation of the notice requirement which arises from an honest effort to repair or improve the property should not give rise to an absolute right of termination of the rental
agreement. We are hesitant to punish a landlord for making sure that the property is in good repair. Yet, we cannot encourage landlords to enter without notice even if repairs are needed and requested. We believe this approach strikes a reasonable balance.

Thus in the Fourth Appellate District, the landlord gets one free unauthorized entry into your apartment if they are coming in to make repairs or for a “good faith” reason. The statute does not state that you have to first complain before you can assert your rights under R.C. 5321.04(A)(8), nor does the statute discuss “good faith” efforts, but the Fourth Appellate District Court feels that this is what the Ohio Legislature must have meant and would have said if they had only thought of it.

B. Waiver or Ratification of the Unauthorized Entry

If you are going to assert your rights to terminate your lease pursuant to an unauthorized entry of your apartment, you don’t want to wait too long after the entry occurs. If you wait too long, the judge might find that you have ratified the behavior of the landlord. This means that you have acted in a way that indicates that the wrong doing on the part of the landlord was no big deal to you, so you may not later go back and dredge up past events as a basis for a present termination.

This is only fair if you think about it. If you are in your third year of a rental agreement, and you have proof that your landlord made an unauthorized entry into your apartment during your first week of occupancy long ago, not too many people would be sympathetic to you if you suddenly asserted that long ago entry as giving you a basis in the present to move out. It
would look too much like you were using it as an excuse for some other reason.

So how long do you have to assert your rights to terminate the rental agreement after an unauthorized entry? In the case of Limage v. Citiscene 1992 Ohio App. LEXIS 3055 (June 9, 1992) Franklin App. No. 92AP-190, unreported:

The trial court found that an agent of appellant made an entry into 1382 1/2 Indianola Avenue which was not lawful, apparently because no advance notice of the entry was received by the tenants. The stipulation of the parties indicated that the entry occurred, but that nothing was disturbed. The purpose of the entry was to show the premises to prospective tenants.

The tenants did not attempt to terminate the lease instantaneously, but almost immediately informed appellant that they were terminating the lease at the end of the three-month period for which they had already paid. Apparently they vacated the premises by that date.

The landlord, Citiscene, tried to argue that the tenants should not be able to wait three months before terminating their lease, and that the three month delay between the time they complained and the time that they moved out constituted a ratification of the landlord’s unauthorized entry.

The Tenth Appellate District Court in Franklin County rejected this argument as follows:

R.C. 5321.04(B) does not set forth a precise date for the termination of a lease, so termination within a reasonable time should be implied. A termination at the end of the period for which the tenants have already paid rent certainly qualifies as reasonable.

Keep in mind that the Court here focused upon the fact that the tenants stayed through the period for which they had already paid rent. These tenants were in an atypical situation wherein they paid their rent every three months. As most people pay their rent every month, a tenant who complains at the beginning of a month about an unauthorized entry into the apartment and elects to terminate his rental agreement can probably stay at the apartment until the end of the month that he had paid for without having to worry about a successful ratification argument on the part of the landlord. Remember also that the tenants in Limage
informed the landlord almost immediately that they would be terminating the lease at the later date. So don’t wait around to tell your landlord of your plans.

Another important thing to take away from the Limage case is that it is not necessary that somebody be disturbed or something be broken by the landlord’s unauthorized entry. In Limage:

The stipulation of the parties indicated that the entry occurred, but that nothing was disturbed. The purpose of the entry was to show the premises to prospective tenants.

The Tenth Appellate District focused more on the fact that the entry was unauthorized rather than upon the fact that nothing was broken and no one was disturbed. In fact, the tenants were not even home when the unauthorized entry happened. It is important to note however that this case stands for what a court can rule, not for what it must rule. There are a lot of ways that a judge can find that the unauthorized entry was actually something else. The Judge may rule that the conditions in your case were such that the landlord had an emergency. The Judge may also rule that the facts in your case made it clear that it was impracticable to get notice to you of the planned entry. The Judge may also rule that you have not proved to his satisfaction that the unauthorized entry was ever made, or that maybe an entry was made, but that you had received adequate notice.

The last important thing to take away from Limage is that just because the landlord attempted an unsuccessful phone call that day and knocked on the door before he entered does not mean that he has given you reasonable notice:

We also affirm that the entry into the premises which occurred was not in accordance with R.C. 5321.04(A)(8). The efforts to notify the tenants consisted of a telephone call on the same date the entry occurred and knocking on the door shortly before entry. Since the telephone was unanswered and the knocking elicited no response, the rental agent certainly knew no notice had been received by the tenants. Giving reasonable notice to tenants for purposes of R.C. 5321.04(A)(8) implies that some sort of notice is received.

In both TKD and Limage, the landlords admitted that they had made unauthorized entries into the apartments. Your landlord may not be quite so honest. You should put some thought into how you are going to show the Judge that the landlord entered into your apartment without your permission. You may luck out and have a note signed and dated by the landlord saying: “Your apartment flunks our surprise inspection. The insides of your closets are filthy. Clean them up or you will be evicted.” But otherwise it might be your word against his.

Your landlord may argue that any time you make a maintenance request, you have given him carte blanche to enter your apartment whenever he wants to make those repairs. While there is no case law that I can find at the time of this writing that directly contradicts this argument, the TKD case seems to speak to those facts and reject the argument without really
addressing it directly. Common sense will also tell you that if you call a plumber and leave a message that you need your sink fixed and for him to call you and set up a time, you will be able to maintain an action for trespass against him if you come home one day and there he is fixing your sink in the absence of a specific time set up for the repair. The word to the wise then is that if you send a letter to your landlord requesting repairs to your apartment, you should spell out specifically in the letter that the landlord is not to interpret the request for repairs as permission to enter. The letter should specify that you wish to be present when repairs are made, and that the landlord should contact you regarding a convenient time to make the repairs.

Your landlord may argue that there is a clause in your lease which says that any request for repairs shall be deemed as permission to enter at any time. But this would be an example of a clause in the lease which conflicts with the provisions of the Ohio Landlord Tenant Act of 1974, and as we know from our earlier readings, any clauses in rental agreements which conflict with the Landlord Tenant Act of 1974 will not be enforced. Further, would the Judge be surprised if she came home from work and found a plumber in her house at 6:00 p.m. after merely leaving a message on the plumber’s answering machine inquiring about repairs?

C. Actual Methods of Preventing Unauthorized Entry

If your landlord consistently enters your apartment without giving you warning, there are some things that you can do. Obviously, you can chain the door while you are there. If your door does not have a chain, you can buy door stops that fit between the door knob and the floor or the frame and the floor to prevent entry.

If your landlord is making entries while you are not there, then the door stop trick won’t work, but there are other options. If your lease does not contain a provision that requires your landlord’s permission to alter or modify the premises, then you can install a new lock on your door and not give the landlord a key until you leave. In the case of Spencer v. Blackmon (1985), 22 Ohio Misc. 2d 52, the Municipal Court in Hamilton County stated:

Prior to the above events, on January 8, 1985 plaintiff had appeared at the apartment building with a carpenter in order to install smoke detectors as required by a new Cincinnati city ordinance, which was effective January 1, 1985. Plaintiff intended to install the smoke detectors in all sixteen units on that day. However, plaintiff had given no notice to defendant of his intention to
enter the premises, as required by R.C. 5321.04(A)(8). Upon attempting to enter defendant’s apartment by means of a passkey, plaintiff discovered that an additional lock had been installed by defendant and he could not gain access to her apartment.

A few days thereafter, plaintiff and defendant had a conversation to the effect that plaintiff demanded a key from defendant, and defendant refused, but stated that she would allow access to the apartment at any time that she had prior notice. Plaintiff again demanded a key to the apartment prior to handing defendant the eviction notice on January 19, 1985, stating that “if you do not
give me a key you will have to move.” Id. at 52-53.

Despite the landlord’s arguments to the contrary, the Municipal Court of Hamilton County ruled that:

The landlord has no right to enter a tenant’s premises absent a bona fide emergency; and the “landlord’s belief or statement that a situation constitutes an emergency does not necessarily make it so. The consequences of a misjudgment may result in a successful action against the landlord by the tenant. The use of a passkey to enter leased premises should be limited to extreme circumstances.” White, Ohio Landlord Tenant Law (1984), at 19; R.C. 5321.04(A)(8)…

The landlord has no right to have passkeys to a tenant’s apartment. “[T]here is neither a common-law nor a statutory requirement that tenants must provide passkeys to their landlords.” White, Ohio Landlord Tenant Law, supra, at 19. In considering whether this was an “emergency situation” as the landlord argued, the Municipal Court disagreed when it stated that:

The installation of smoke detectors, which could have been done prior to the effective date of the ordinance, and should have been done by January 1, 1985, is not, on the 8th day of January, a sufficient “emergency” to entitle the landlord to enter tenant’s premises without prior notice. R.C. 5321.04(A)(8).

Unfortunately, most landlords heard about this case and they incorporated terms into their new rental agreements that prevent modifications to the premises without their written consent. If you install a new lock without the landlord’s permission, then this will be a breach of that rental agreement provision and the landlord will have a right to evict you.

If your rental agreement has such terms preventing modification, all is not lost. You can go to your local department or electronics store and get a motion detector with siren for an small price. These are usually battery powered and about the size of a brick. Sit them about five feet back from any entrance to your apartment, and they will go off at 120 decibels when they detect the door opening. There is usually a device that can be attached to your key ring to turn it on and off as you approach. Your landlord may be greatly inconvenienced by such alarms and will probably avoid your apartment thereafter. If he destroys your alarm and is unwise enough to leave a note telling you not to get a new one, sue him for trespass and conversion of your property.

D. No Setting Traps

One thing that you cannot and must not do is to set traps for either a burglar or a landlord that could do physical harm to anyone. In law, these are known as “spring guns” (even though they may have nothing to do with guns). Almost every state, including Ohio, has cases or laws which prohibit the wiring of shotguns in a manner to go off when a door is opened without authorization. Similarly, you cannot rig a can of mace to do the same thing, or wire your door knob so as to give a harmful electric shock. If you do, you will face both criminal and civil liability.