Chapter XIII: Moving Out

You will only be responsible for returning the apartment in the same condition that you got it, reasonable wear and tear excepted. This is where it is important to have your video camera with a new tape cued up and ready to go. On the last day of your lease, after you have removed all of your furniture, cleaned the apartment, and repaired whatever damage you have done to the place, you should take the following steps.

A. Bring In The Professionals

First, you should call professional cleaning personnel to clean up the apartment. This has three advantages. First, you get to go out and play golf or shop while the cleaning people slave away at your mess. Secondly, they will do a much better job than you could ever do because they have the know how and the tools to get things done right. They have higher standards than you do and they do not lose their enthusiasm for the project as time wears on because they want your money at the end of the job. Lastly, they can provide you with a receipt for the work that was done. This can be very valuable to you when you go up against the landlord who claims in Court that you left the place a stinking mess. The Judge may believe that someone like you could leave the place a stinking mess, but that same Judge would be extremely disinclined to believe that professional cleaning personnel would leave the place a stinking mess once you have presented a paid in full receipt to him from the cleaning people.

So call in the professionals. They aren’t near as expensive as you think. Also, make sure that you give the cleaning people plenty of lead time, especially if you live in a campus area where all of the apartments are turning over at the same time. They are likely to be booked solid at certain times of the year. If you call them and expect them to come out within the week when they have thousands of jobs, you are fooling yourself.

B. Video Tape The Place At Move Out

Now that you have got your apartment down to the bare walls and all cleaned up to the point where it is “Grandma Clean,” you need to repeat the video tape process with the newspaper. You paid all this money to the cleaning people to get it in this shape. You might as well capture the moment for posterity and for the edification of a Judge in later Court proceedings. Be just as thorough this time as when you moved in. Get everything. Do not tell your landlord that you have made this video tape unless he makes a discovery request for it in Court. Send the video tape off to your parents’ house for safe keeping.

C. Written Notice Of Security Deposit Forwarding Address

You will want to write a letter to your landlord informing him of your forwarding address for the return of your security deposit. You want to send this letter to the landlord at the start of the last month that you will be staying at the apartment. If you have roommates, everyone should sign the letter and have the deposit sent to the same address. Every one signing is not required, but it makes for simplicity rather than to have five different security deposits going to five different addresses.
This forwarding address can be any address that you would like, your new address, a friend’s house, a parent’s house, a P.O. Box, anything. But it must be a mailing address. You can’t give a phone number in the letter and tell the landlord to call this number for an address. Remember to use The Process described in Chapter 8 (via certified mail) to show that the landlord got this notice and when.

The reason that you are giving this forwarding address in writing is because you wish to get the powerful protections given to you by RC 5321.16. This statute covers the return of security deposits. It is the statute that your landlord fears the most (if he has a brain in his head) and 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. 5321.16 (1998)

§ 5321.16 Security deposit procedures.

(A) Any security deposit in excess of fifty dollars or one month’s periodic rent, whichever is greater, shall bear interest on the excess at the rate of five per cent per annum if the tenant remains in possession of the premises for six months or more, and shall be computed and paid annually by the landlord to the tenant.

(B) Upon termination of the rental agreement any property or money held by the landlord as a security
deposit may be applied to the payment of past due rent and to the payment of the amount of damages that the landlord has suffered by reason of the tenant’s noncompliance with section 5321.05 of the Revised Code or the rental agreement. Any deduction from the security deposit shall be itemized and identified by the landlord in a written notice delivered to the tenant together with the amount due, within thirty days after termination of the rental agreement and delivery of possession. The tenant shall provide the landlord in writing with a forwarding address or new address to which the written notice and amount due from the landlord may be sent. If the tenant fails to provide the landlord with the forwarding or new address as required, the tenant shall not be entitled to damages or attorneys fees under division (C) of this section.

(C.) If the landlord fails to comply with division (B) of this section, the tenant may recover the property and money due him, together with damages in an amount equal to the amount wrongfully withheld, and reasonable attorneys fees.

In short form, it says that if you give the landlord written notice of your forwarding address for the return of your security deposit, then your landlord must return the deposit or a list of reasons why he is keeping your deposit within 30 days. If any portion of your deposit is later found by the courts to be wrongfully withheld, then your landlord will be very sad indeed. This is because you will be entitled to sue for the wrongfully withheld portion, that same amount again under the double damages provision of RC 5321.16(C ) and the landlord must pay your reasonable attorneys fees.

Attorneys fees are important here because few security deposits are hefty enough to justify the hiring of a lawyer for their recovery. The Ohio Legislature understood this and enacted 5321.16(C ) to give you a fighting chance. If you win, your attorney gets paid by the landlord. Some attorneys still will not take the case because they know that Judge’s have the discretion to award attorneys fees, and sometimes are extremely reluctant for a variety of reasons to do so. Lucky for you, the Ohio Supreme Court decided that the Judge doesn’t have any choice on the issue of whether or not to award attorneys fees and double damages. They are mandatory.

In the case of Smith v. Padgett (1987), 32 Ohio St. 3d 344, the Ohio Supreme Court stated that:

This court has not previously considered this precise issue. However, in Vardeman v. Llewellyn (1985), 17 Ohio St. 3d 24, 17 OBR 20, 476 N.E. 2d 1038, we held that a landlord who both wrongfully withholds a portion of a security deposit and fails to timely provide the tenant with an itemized list of deductions is liable for damages equal to twice the amount wrongfully withheld and for reasonable attorney fees. In so holding, we reasoned that part of the General Assembly’s intent in enacting R.C. 5321.16(B) and (C ) was “to provide a penalty by way of damages and reasonable attorney fees against a noncomplying landlord for the wrongful withholding of any or all of the security deposit.” Id. at 28, 17 OBR at 24, 476 N.E. 2d at 1042.

A landlord should not be allowed to escape the intent underlying the R.C. 5321.16(C ) penalties by making a list of deductions. A landlord will not be deterred from making unfounded deductions from a security deposit if the penalties provided by R.C. 5321.16(C ) can be avoided by tendering a list of facially justifiable reasons for the deductions. R.C. 5321.16(B) and (C ) do not require bad faith on the part of the landlord. See Forquer v. Colony Club (1985), 26 Ohio App. 3d 178, 180, 26 OBR 398, 399, 499 N.E. 2d 7, 9; Paxton v. McGranahan (App. 1985), 25 OBR 352, 355. We will not inject a requirement of bad faith into this statute where the legislature has chosen not to do so.

Therefore, we hold that under R.C. 5321.16(B) and (C ), a landlord who wrongfully withholds a portion of a tenant’s security deposit is liable for damages equal to twice the amount wrongfully withheld and for reasonable attorney fees. Such liability is mandatory, even if the landlord gave the tenant an itemized list of deductions from the deposit pursuant to R.C. 5321.16(B).

If the trial court finds that a landlord has wrongfully withheld a portion of the tenant’s security deposit, it shall determine the amount of reasonable attorney fees to be awarded on the basis of the evidence presented. Such determination shall not be reversed except upon abuse of discretion. See Albreqt v. Chen (1983), 17 Ohio App. 3d 79, 83, 17 OBR 140, 144, 477 N.E. 2d 1150, 1155. Cf. Nobis v. E. A. Zicka Co. (1986), 31 Ohio App. 3d 104, 31 OBR 175, 508 N.E. 2d 980; Forquer, supra, at 180, 26 OBR at 400, 499 N.E. 2d at 10.

However, the award of attorney fees must relate solely to the fees attributable to the tenant’s security deposit claim under R.C. 5321.16, and not to any additional claims. Where, as here, a tenant brings additional claims against the landlord, the tenant may not use R.C. 5321.16(C ) to recover attorney fees attributable to the additional claims. Id. at 348-350 [footnotes omitted].

So it behooves you not to just run out on the last month’s rent. If you do that, he will sue you and your co-signers anyway for all of the damages to the apartment (real or imagined), plus late fees, and you and/or your co-signers will have to face him in court without the prospect of double damages recovery or recovery of your attorneys fees.

Though attorneys fees are mandatory, the Court still has the right to determine how much attorneys fees are reasonable (and will use the factors listed in Bittner v. Tri-County Toyota, Inc. (1991), 58 Ohio St. 3d 143, which are as follows:

When awarding reasonable attorney fees . . ., the trial court should first calculate the number of hours reasonably expended on the case times an hourly fee, and then may modify that calculation by application of the factors listed in DR 2-106(B). These factors are: the time and labor involved in maintaining the litigation; the novelty and difficulty of the questions involved; the professional skill required to perform the necessary legal services; the attorney’s inability to accept other cases; the fee customarily charged; the amount involved and the results obtained; any necessary time limitations; the nature and length of the attorney/client relationship; the experience, reputation, and ability of the attorney; and whether the fee is fixed or contingent. All factors may not be applicable in all cases and the trial court has the discretion to determine which factors to apply, and in what manner that application will affect the initial calculation.

Moreover, the trial court determination should not be reversed absent a showing that the court abused its discretion. “It is well settled that where a court is empowered to award attorney fees by statute, the amount of such fees is within the sound discretion of the trial court. Unless the amount of fees determined is so high or so low as to shock the conscience, an appellate court will not interfere. The trial judge which participated not only in the trial but also in many of the preliminary proceedings leading up to the trial has an infinitely better opportunity to determine the value of services rendered by lawyers who have tried a case before him than does an appellate court.” Brooks v. Hurst Buick-Pontiac-Olds-GMC, Inc. (1985), 23 Ohio App. 3d 85, 91, 23 OBR 150, 155, 491 N.E. 2d 345, 351-352. Id. at 145-146

It is also important to note that even if your landlord has retained your money for unlawful reasons, if you owe him money overall, you will not get the double damages and attorneys fees. For instance, if the landlord keeps five hundred dollars of your deposit to replace carpet that the Court found needed to be replaced before you ever moved in, but also finds that you owe the landlord rent for the month of November which you never paid, then if the rent owed is more than the deposit, you will get no money back, no attorneys fees, and no double damages. This is the case even if the landlord gave you no itemization of the security deposit’s disposition.

In the case of Vardeman v. Llewellyn (1985), 17 Ohio St. 3d 24, the landlord had never sent out any itemization of the security deposit, completely ignoring his responsibility to do so pursuant to Ohio Revised Code Section 5321.16. The tenant’s attorney argued that this automatically entitled the tenant to double damages and attorneys fees. But the court found that since the tenant owed the landlord more than the security deposit, the fact that the landlord did not provide the itemization was of no consequence.

D. Reasonable Wear And Tear

What constitutes “reasonable wear and tear”? Surprisingly, this term is almost completely undefined in Ohio law. There are only about three or four cases that I have seen that deal with this definitionally, and they go in all different directions. The long and short of this question then is that reasonable wear and tear is what the Judge determines it to be in your case. To some extent, this is only fair. Reasonable wear and tear is going to be one thing at an apartment wherein an old lady lives alone with her TV and another thing for an apartment where you and your five college roommates and two dogs live.

I once did battle with a landlord who accused my client of not cleaning the dust out of the coils on the back of the refrigerator at the end of the rental term. She also alleged that my client did not remove the dirt from the inside of the pipes in the drain of the tub. After a long, hearty laugh, the Judge determined that these items amounted to “reasonable wear and tear.” I won the case hands down.

Other cases have defined reasonable wear and tear as any damages that were not caused by a tenant’s violation of Ohio Revised Code Section 5321.05 (the tenant’s duties to the landlord).

E. Why The Definition of Reasonable Wear and Tear Is Not All That Important

But the definition of reasonable wear and tear is all just so much pissing in the wind if you have the video tapes that you need to show the condition of the apartment. Read on for the section of how to best present these video tapes in the trial tactics section of this work. If you do it right, the Judge won’t care what the definition of reasonable wear and tear is. He’ll be looking to slam the landlord.

F. What Constitutes Wrongful Withholding?

The law says that if your landlord wrongfully withholds any portion of your security deposit after getting your forwarding address, then you are entitled to double damages and attorney fees. Some landlords will try to argue that since they didn’t actually mean to wrongfully withhold your security deposit, that it was an honest mistake, so they shouldn’t be hit with double damages and attorneys fees. This comes from the common law concept that double damages and attorneys fees are usually only awardable where there was evil intent by one of the parties.
The courts have long ago ruled against this argument in the case of Forquer v. Colony Club Apartments. In that case, quoted in the Ohio Supreme Court case of Smith v. Padgett, the Court held that the landlord’s intent had nothing to do with anything. If the landlord was wrong, then the tenant gets double damages and attorneys fees.
Mandatory.

Some landlords or their attorneys will try to assert that so long as the landlord provided an itemized listing of deductions within 30 days, you might get your deposit back if those deductions turn out to be wrong, but you won’t get your double damages or attorney fees. Horse Hockey. The Ohio Supreme Court’s ruling in Smith v. Padgett put that tired old argument to rest.

Some landlords will try to tell you that normally, you could get your double damages and attorneys fees, but unfortunately, you sued in Small Claims Court which does not have the power to award such damages. Horse Hockey. The Ohio Supreme Court decided that issue in the case of Klemas v. Flynn (1993), 66 Ohio St.3d 249:

The double damages recoverable under R.C. 5321.16(C ) are simply a measure of the damages allowable and are akin to liquidated damages rather than punitive damages. These additional damages serve to compensate injured tenants for the temporary loss of the use of that money given to the landlord as a security deposit and for the time and inconvenience of having to sue for the recovery of money wrongfully withheld. In addition, the possibility of double damages creates an incentive for landlords to comply with the law.

Even if the award of double damages has a somewhat punitive effect, double damages do not thereby become “punitive damages” as that term has been defined in the common law. . .

Further, there is no logical reason to exclude R.C. 5321.16(C ) claims from the jurisdiction of small claims courts. Indeed, there are compelling policy reasons to include these claims. The small claims divisions of municipal and county courts are intended to provide a forum for persons with relatively small, uncomplicated claims to seek redress without the need for attorney representation. Security deposit claims are such claims. Id. at 251-252

G. The Burden Of Proof

Normally, the Plaintiff in any case has the burden of proving his case. The burden of proof is important because after all the evidence is in, there can be three possible outcomes in the Judge’s mind. Outcome number one, the Plaintiff has proved his case. Outcome number two, the Defendant has proved his case. Outcome number three, both sides proved their case so much so that the Judge does not know whom to believe (in this respect the evidence is said to be in equipoise, and it happens more than you might think). When the Judge doesn’t know whom to believe, the party with the burden of proof loses. In relation to outcomes then, the party with the burden of proof has only a one third chance of success.

In landlord tenant cases concerning the wrongful withholding of security deposits, there is authority in Ohio case law for the proposition that the landlord has the burden of proof to show that he rightfully withheld the deposit. This is true whether he is the Plaintiff or the Defendant. The reasoning is that since the landlord is the one asserting the right to keep the deposit, it should be his burden of proof to show that he has the right to keep it. Paxton v. McGranahan (1985), Cuyahoga App. No.49645, Eighth Appellate District of Ohio, (unreported) LEXIS 9094. This means that the tenant has a two out of three chance of winning the case from the outset, all other things being equal.

H. Sufficiency of Charges at the Time of Itemization

Another issue involving the return of security deposits is the sufficiency of the security deposit forfeiture notice. The notice that the landlord provides to you within the 30 day period must be sufficiently itemized so that you can get enough information out of it to call the landlord up and intelligently contest the damages. In the case of Nolan v. Sutton (1994), 97 Ohio App. 3d 616; 647 N.E.2d 218, the landlord sent the tenant out a notice of security deposit forfeiture which stated only “Cleaning, $40.00.” The First Appellate District Court in Hamilton County held that this was not sufficiently itemized as a matter of law when it stated as follows:

We hold that the itemization in this case, “$40-cleaning,” is insufficient as a matter of law to meet the landlord’s burden under R.C. 5321.16(B) and (C), and that, thus, the trial court properly granted summary judgment to Nolan, the tenant.

Your landlord, when confronted with this argument will then produce a raft of evidence, either at trial or in response to a discovery motion that will itemize the “damages” for failure to clean in a lot more detail. But this will be of no avail to him, as the Court in Nolan went on to state that:

We believe that under the statutory scheme established under the landlord/tenant law, the sufficiency of the itemization must be determined at the time it is sent to the tenant, not at the time it may later be clarified through discovery in a lawsuit.

The Court in Nolan provided insight into its reasoning for its holding in this matter as follows:

In the case at bar, there is simply no way to determine from the “Security Deposit Transmittal” form received by the tenant whether the $40 for cleaning was due to ordinary wear and tear or something above that. As stated by the supreme court in Smith v. Padgett (1987), 32 Ohio St.3d 344, 349, 513 N.E.2d 737, 742:

“A landlord should not be allowed to escape the intent underlying the R.C. 5321.16(C) penalties by making a list of deductions. A landlord will not be deterred from making unfounded deductions from a security deposit if the penalties provided by R.C. 5321.16(C) can be avoided by tendering a list of facially justifiable reasons for the deductions.” See, also, Albreqt v. Chen (1983), 17 Ohio App.3d 79, 17 OBR 140, 477 N.E.2d 1150 (“in the absence of an affirmative showing by way of itemization (see R.C. 5321.16[B]), that there was a specific need to clean the carpet, appellant’s unilateral deduction was improper”), and Swartz v. Luker (Dec. 30, 1991), Clermont App. No. CA91-07-051, unreported, 1991 WL 278243. Id. at 620-621

Remember that this case comes from the First Appellate District. While it is a reported case and controls the result of any matter before the First Appellate District’s trial courts, if you are not in the First Appellate District, then this case will not necessarily control the trial court in which your case is heard. But it will stand tall as very persuasive authority of the kind that many judges would not want to rule against.

I. Written Notice of Intention to Vacate Clauses

For a more detailed analysis of penalty clauses, of which this is one type, take a look at the section of this work on the terms of a rental agreement. A lot of landlords will try to stick something like this one in on you: “The tenant agrees to give the landlord written notice of his intention to vacate the premises at least 30 days prior to the end of the lease term. Failure to do so will entitle the landlord to keep the security deposit of the tenant.” The lease might also say that the tenancy will automatically become month to month if 30 days written notice of intention to terminate is not received.

Before we get into a big discussion about whether this clause is enforceable or not, I ask you: Why not just send the written notice in using The Process? Don’t make it an issue. Don’t give the landlord any chance at all. Never cut the sucker an even break.

But now I’m going to assume that you purchased this work of legal artistry late in the game, and that you have already moved out, and you either forgot to give the landlord the notice, can’t prove that you gave him the written notice, or that you had told him on several occasions orally that you would be moving out at the end of the lease.

The Franklin County Court of Appeals examined whether these Intention to Vacate Clauses are enforceable in the case of McGowan v. D.M. Group IX (1982), 7 Ohio App.3d 349; 455 N.E.2d 1052. In McGowan:
The lease provided for an automatic month-to-month tenancy, unless thirty days’ written notice was given prior to the expiration of the original term. In addition, Paragraph 19 of the lease contains a provision that, in case of default by the tenant and a reletting of the premises “for the remainder of the term hereunder,” the tenant is required to pay “the sum of $150.00 as liquidated damages to cover the administrative, advertising and bookkeeping costs of reletting the premises.”

But the tenant in McGowan was renting the apartment for a three month term so that his mother could stay there. Unfortunately, Mom was only able to stay for the first ten days, and then had to move out for medical reasons. The tenant agreed to pay the rent as it came due until the end of the lease, which he did, and both he and the landlord searched together for a replacement tenant, but to no avail. When the tenant did not provide written notice of his intent to vacate, the landlord tried to keep his security deposit. But the trial court found that the landlord had actual notice of the intent to vacate at the end of the term. You may wonder why the landlord needs notice of your intent to vacate at the end of the rental term. One would think that the terms of the rental agreement delineating its starting and ending points would be sufficient. But the Tenth District Court of Appeals recognized that provisions requiring the tenant to give written notice of an intention to vacate were not automatically unconscionable:

The trial court did err in finding unconscionable the provision of the rental agreement placing an affirmative duty upon the tenant to give thirty-days’ written notice prior to expiration of the term of his intent to vacate the premises. It is not unconscionable to require such notice or to provide that there shall be a month-to-month tenancy if such notice not be given. Id. at 351.

But the Court took a dim view of the landlord’s argument that he was entitled to keep One Hundred Fifty Dollars ($150.00) from the tenant’s security deposit because of the tenant’s failure to provide the written notice:
The purpose of requiring written notice is not to be hypertechnical but, instead, to create certainty. Here, defendants were aware for several months of plaintiff’s intent to terminate the tenancy as soon as possible. In fact, plaintiff testified that his payment of rent for the entire term was necessitated by defendants’ refusal to make any effort to re-rent the premises earlier. At no time is there any indication that defendants advised plaintiff that they were going to insist upon written notice or a new month-to-month tenancy. To require same under the circumstances of this case would be unconscionable, even though the provision of the lease itself is not unconscionable. Rather, it is the action of defendants under the peculiar circumstances of this case which is unconscionable. There was clearly knowledge on the part of defendants of plaintiff’s intent to vacate, and defendants were not prevented or delayed in finding a new tenant at the end of the term. In short, additional written notice would have served no purpose in this case. Defendants have attempted to take advantage of a hypertechnical construction and application of the lease agreement.

Thus the key argument is going to be whether or not the landlord had actual notice of the tenant’s intentions regarding what was going to happen at the end of the term of the rental agreement. If you convince the Court that you told the landlord orally on several different occasions that you were going to be leaving, or if the circumstances surrounding the rental agreement were such that the landlord had to know that you would be leaving at the end of the lease term, then the Court may see the requirement of written notice contained in your lease as hypertechnical as in McGowan. If that is the case, then the Court will not enforce the written notice requirement.

J. The Thirty Day Time Limit

The language of Ohio Revised Code Section 5321.16 says that if the landlord does not send a security deposit forfeiture notice to the landlord within 30 days of getting the tenant’s forwarding address, then he will be responsible for double damages and attorneys fees. But in the case of Vardemen v. Llewellyn, the Ohio Supreme Court decided that the legislature didn’t actually mean to say what it said. According to the Ohio Supreme Court, so long as there actually were justifiable reasons to withhold the tenant’s security deposit, the fact that the landlord did not send the security deposit forfeiture notice or the refund to the tenant within 30 days didn’t mean anything.

What actually did not mean anything at that point was the thirty day rule. The following situation might be illustrative. You only pay one half of your last month’s rent. You send the landlord written notice of your security deposit forwarding address. The landlord keeps all of your deposit and never sends you a security deposit forfeiture notice. You sue your landlord for the whole deposit, double damages, and attorneys fees.

Under Vardeman, you will only get half of your deposit back, plus double damages on that half, plus attorneys fees. The fact that your landlord missed the thirty day deadline regarding the amount that he was entitled to keep (the unpaid half of the last month’s rent) was not important to the Ohio Supreme Court that decided Vardeman. They felt that it would be unfair to give such tenants the windfall of the entire deposit back when the landlord actually had justifiable reason for keeping part of it. I can see that part of the rationale, but this makes the thirty day rule meaningless for landlords so long as they can prove their damages later on. The whole idea was to get the landlord and the tenants on record early in the process regarding damages.

To be fair to the Ohio Supreme Court, they were consistent about the meaninglessness of the thirty day limit when they also decided the case of Smith v. Padgett. In this case, the landlord had wrongfully withheld a portion of the deposit, but had sent out a bogus notice within thirty days itemizing the charges. The landlord argued that he should not be subject to the double damages and attorneys fees penalties because he had complied with the thirty day deadline. The Ohio Supreme Court dismissed this argument saying that it was not the time limit of the notice that was important, but rather whether the items were or were not wrongfully withheld from the tenant.

Be careful to make sure that you give written notice of your forwarding address for the return of your security deposit to the landlord before you move out of the apartment. Some landlords have taken the position that if you give the notice after you move out, the thirty day provision does not apply. They argue this because the statute says that the landlord must upon receiving written notice of security deposit forwarding address give the deposit back within 30 days of the termination of the tenancy (rather than 30 days from the date they received notice) and that failure to provide the forwarding address before you leave makes it impossible for them to comply with the statute.

Ohio law has not presently ruled on this rather technical argument at the time of this writing, so it is best to avoid this issue if possible by getting the notice to the landlord before the move out date.

K. Automatic Charges Pursuant to Lease

Another important thing to note is that the landlord cannot make automatic charges against your security deposit, even if the lease clearly purports to give him the right to do so. In the case of Albreqt v. Chen (1983), 17 Ohio App.3d 79, the landlord pointed to a clause in the lease that required the tenant to pay for carpet cleaning after moving out whether the carpet was dirty or not. The Court of Appeals for the Sixth Appellate District in Lucas County compared this clause to other automatic charges involving the security deposit when it stated:
This court is satisfied that the rationale of Riding Club Apts. v. Sargent (1981), 2 Ohio App. 3d 146, is dispositive of the question presented in the second assignment of error. Factually, the cases are similar. In the Riding Club Apartments case, the appellant-tenant alleged that retention of his security deposit by the appellee-landlord, without any itemization of damages, as required by R.C. 5321.16(B), was unenforceable. The lease in that case provided, in part:

“* * * Furthermore, in the event tenant vacates the premises prior to the termination date, a charge of $150 will be deducted from said security deposit as an amount necessary or incidental to prepare said premises and secure a new tenant therefor. * * *”

Such a clause is not unlike paragraph 31 of the lease sub judice, which provides, in pertinent part:

“* * * Tenant assumes and agrees to pay a charge of $60.00 Dollars ($60.00) for the cleaning of the carpeting in said apartment upon the vacation of said premises. * * * ‘Tenant’ agrees that said $60.00 Dollar charge will be deducted from said security deposit over and above any other charges to be deducted from said deposit as herein provided[.] * * *”

In the Riding Club Apartments case, the Court Tenth District Court of Appeals for Franklin County held:
A liquidated damages clause permitting the landlord to retain a security deposit without itemization of actual damages caused by reason of tenant’s noncompliance with R.C. 5321.05 or the rental agreement is inconsistent with R.C. 5321.16(B), may not be included in a rental agreement and is not enforceable (R.C. 5321.06).”
(Emphasis added.)

The Court that decided Albreqt gave us an insight into its reasoning when it explained that:

As applied to the facts herein, we adopt and follow the rationale of the opinion of the Tenth District Court of Appeals in Riding Club Apts. v. Sargent, supra. In this case, the trial court affirmatively found that when appellee vacated the apartment, the carpet was just as clean as or cleaner than when appellee initially moved into the apartment. Therefore, under the circumstances, appellee is not responsible for the cost of any carpet cleaning. In the absence of an affirmative showing, by way of itemization (see R.C. 5321.16[B]), that there was a specific need to clean the carpet, appellant’s unilateral deduction was improper. A lease provision regarding carpet cleaning that is inconsistent with R.C. 5321.16(B) is unenforceable. Cf. Riding Club Apts. v. Sargent, supra, at 147. Consequently, the second assignment of error is not well-taken. Id. at 81-82.

This case can be analogized to other automatic charges against a security deposit. It makes no sense to refuse to enforce automatic carpet cleaning clauses, but to allow the enforcement of clauses that automatically require the tenant to pay for painting. However, you must always beware when reasoning by analogy that some decision makers might fail to see the similarity of your examples.

Keep in mind as well that the landlord in Albreqt was conceding that the carpet was clean when the tenant moves out, but that the lease allowed him to deduct money anyway. Once your landlord hears your Albreqt argument, he is likely to argue both that the carpet was dirty and the lease agreement allows him to deduct money anyway.
Unless you can prove with your video tape that the carpet was in the same condition as when you moved in, reasonable wear and tear excepted, this case gets you only half of the way there.

Some landlords will attempt to charge you for painting the place. They will have the right to do this if you wrote on the walls with magic markers or otherwise defaced or damaged the walls. But absent an affirmative showing that the painting was necessitated by damages beyond ordinary wear and tear (walls do get dingy after a few years), the Court will probably not allow such charges. In the case of Swartz v. Luker (Dec. 30, 1991), Clermont App. No. CA91-07-051, unreported, 1991 WL 278243, the District Court of Appeals in Clermont County noted that:

Appellant applied appellee’s security deposit to the cleaning and painting of walls and baseboards. As the trial court observed, this did not constitute damage to the rental unit beyond normal wear and tear and did not constitute damages which appellant suffered pursuant to R.C. 5321.05 and 5321.16(B). Id. at 3-4.

L. Transfer of Ownership During Rental Term

Sometimes your apartment will be sold during the rental term, or a new management company will take over. If this happens, you will want to send your thirty day return of security deposit forwarding address letter to both the old owner and the new owner. The old and the new owners may very likely point fingers at each other regarding who has the deposit after the transfer. If you can’t get a straight answer on who has your security deposit, you should probably sue them both, but Ohio law states that the person that received the security deposit has the burden of paying it back. In the case of Tutuer v. P. & F. Enterprises, Inc. (1970), 21 Ohio App.2d 122, the District Court of Appeals in Cuyahoga County stated as follows:

There is no Ohio law concerning the effect of this transfer of the rent security deposit. The United States courts appear to follow the stance taken by the New Jersey courts. Kaufman v. Williams (1919), 92 N. J. Law 182, 104 A. 202, held that the deposit was considered a pledge and that the liability to return the deposit does not run with
the reversion but with the pledge. . .

Therefore, the landlord may be held liable to the lessee unless the lessee chooses to pursue the grantee and the
grantee has personally assumed liability or has received a credit for the deposit against the sale price.
So under Ohio law, the renter may choose to go after the original owner, and that original owner will be held liable for the return of the deposit unless he can show that he received a credit for the security deposit paid to him in the sale price of the property. It is best to sue both the new and old owners just to be safe, though.

One thing that is good for the tenant about a transfer of ownership during the lease term is that the tenant need only return the apartment in the condition which she got it from the original landlord. The new landlord is going to be hard pressed to prove what the apartment looked like without help from the old landlord. Landlords are always forgetting this in Court and if you bring it up to the Judge that there was no evidence of what the place looked like at move in, you are very likely to win your case no matter what your apartment looked like when you moved out.

M. Whom To Sue

It is important to remember that even though your apartment complex may say “Willison Property Services”, this entity may not be your landlord. There are many real estate management outfits that manage rental property for the true owners who do not wish to have any involvement with their property holdings except to get a check every month. If the property manager wrongfully withholds your security deposit, the real owner may not even have known a thing about it. But this does not absolve the true owner of the property of responsibility in the matter.

So who is defined as a landlord? The answer comes to us from Ohio Revised Code Section 5321.01, the Definitional Section of the Act [many laws of Ohio have subsections, and it is very common for the first one to lay down definitions under which the rest of the act will be governed] which is reprinted immediately below:

PAGE’S OHIO REVISED CODE ANNOTATED
Copyright © 2000 Anderson Publishing Company
*** THIS DOCUMENT REFLECTS CHANGES RECEIVED THROUGH JANUARY 1, 2000 ***
TITLE LIII [53] REAL PROPERTY
CHAPTER 5321: LANDLORDS AND TENANTS
ORC Ann. 5321.01 (Anderson 2000)§ 5321.01 Definitions.

As used in this chapter:

(A) “Tenant” means a person entitled under a rental agreement to the use and occupancy of residential premises to the exclusion of others.

(B) “Landlord” means the owner, lessor, or sublessor of residential premises, the agent of the owner, lessor, or sublessor, or any person authorized by the owner, lessor, or sublessor to manage the premises or to receive rent from a tenant under a rental agreement.

(C ) “Residential premises” means a dwelling unit for residential use and occupancy and the structure of which it is a part, the facilities and appurtenances in it, and the grounds, areas, and facilities for the use of tenants generally or the use of which is promised the tenant. “Residential premises” includes a dwelling unit that is owned or operated by a college or university. “Residential premises” does not include any of the following:

(1) Prisons, jails, workhouses, and other places of incarceration or correction, including, but not limited to, halfway houses or residential arrangements which are used or occupied as a requirement of probation or parole;

(2) Hospitals and similar institutions with the primary purpose of providing medical services, and homes licensed pursuant to Chapter 3721. of the Revised Code;

(3) Tourist homes, hotels, motels, and other similar facilities where circumstances indicate a transient occupancy;

(4) Elementary and secondary boarding schools, where the cost of room and board is included as part of the cost of tuition;

(5) Orphanages and similar institutions;

(6) Farm residences furnished in connection with the rental of land of a minimum of two acres for production of agricultural products by one or more of the occupants;

(7) Dwelling units subject to sections 3733.41 to 3733.49 of the Revised Code;

(8) Occupancy by an owner of a condominium unit;

(9) Occupancy in a facility licensed as an SRO facility pursuant to Chapter 3731. of the Revised Code, if the facility is owned or operated by an organization that is exempt from taxation under section 501(c)(3) of the “Internal Revenue Code of 1986,” 100 Stat. 2085, 26 U.S.C.A. 501, as amended, or by an entity or group of entities in which such an organization has a controlling interest, and if either of the following applies:

(a) The occupancy is for a period of less than sixty days;

(b) The occupancy is for participation in a program operated by the facility, or by a public entity or private charitable organization pursuant to a contract with the facility, to provide either of the following:

(I) Services licensed, certified, registered, or approved by a governmental agency or private accrediting organization for the rehabilitation of mentally ill persons, developmentally disabled persons, adults or juveniles convicted of criminal offenses, or persons suffering from substance abuse;

(ii) Shelter for juvenile runaways, victims of domestic violence, or homeless persons.

(10) Emergency shelters operated by organizations exempt from federal income taxation under section 501(c)(3) of the “Internal Revenue Code of 1986,” 100 Stat. 2085, 26 U.S.C.A. 501, as amended, for persons whose circumstances indicate a transient occupancy, including homeless people, victims of domestic violence, and juvenile runaways.

(D) “Rental agreement” means any agreement or lease, written or oral, which establishes or modifies the terms, conditions, rules, or any other provisions concerning the use and occupancy of residential premises by one of the parties.

(E) “Security deposit” means any deposit of money or property to secure performance by the tenant under a rental agreement.

(F) “Dwelling unit” means a structure or the part of a structure that is used as a home, residence, or sleeping place by one person who maintains a household or by two or more persons who maintain a common household.

(G) “Controlled substance” has the same meaning as in section 3719.01 of the Revised Code.

(H) “Student tenant” means a person who occupies a dwelling unit owned or operated by the college or university at which the person is a student, and who has a rental agreement that is contingent upon the person’s status as a student.

Thus Ohio Revised Code Section 5321.01(B) defines a “landlord” as “the owner, lessor, or sublessor of residential premises, the agent of the owner, lessor, or sublessor, or any person authorized by the owner, lessor, or sublessor to manage the premises or to receive rent from a tenant under a rental agreement.” This means that both the owner and the property manager are defined as landlords under the Act, and both can and should be sued if there is a wrongful withholding of the security deposit.

Remember that you can only collect money from someone against whom you have a judgment entry. If you do not sue both the owner and the property manager (assuming there is one), then one may escape liability if the other has no money to pay you. You can find out who owns a piece of property by going to the County Auditor’s Website or to the Courthouse itself and looking up your address in the County Recorder’s Office.

N. Built Up Late Charges

Often, a landlord will claim that you were late on the rent in one of the first few months of your lease, and that your failure to make a late payment made all of your other rental payments late. For example. Your rent is $500.00 per month, and the landlord claims that you were late in September. When the time came for you to pay October, you paid October on time, but only $500.00. So the landlord claims that the first $50.00 of the rental payment went towards making up the previous late fee, and now you have only paid $450.00 on October’s rent, and the last $50.00 is late.

Sneaky. Very sneaky indeed, but it won’t work. It won’t work because you can make the same waiver arguments that are listed in Chapter 14. To summarize those, if you and your landlord enter into a course of conduct wherein late payments are commonly and regularly given and received without objection, the landlord’s conduct speaks for itself, and he will be estopped from asserting strict compliance with the timely payment terms of the rental agreement.

O. Abandoned Property

What happens to property which you leave behind at the rental premises after the term of the lease is up? Under Ohio law, the answer to this question depends upon the facts of the situation. In the case of Markovich v. Hunt 1995 Ohio App. LEXIS 282 (January 19, 1995) Lawrence App. No. 94CA16 (unreported), the Fourth Appellate District Court considered this issue. In Markovich, the tenant told the landlord that she would be out on April 1, but as of that date, still had items remaining in the house. The landlord disposed of these items and the tenant sued. The Court held that:

Generally, a landlord may remove chattels owned by a tenant that are left on the property after the tenant has vacated the premises. See Restatement of Property 2d, Landlord and Tenant (1977) 473, Section 12.3 Comment l. The landlord may then recover from the tenant the reasonable costs of storing and maintaining the property. Id. The tenant, however, does not lose ownership rights in the property unless the tenant abandons the property, in which case the landlord may dispose of the property in any manner. Id. Whether a tenant has abandoned the property is a question of fact. Id., at 482.

It is undisputed that appellant had moved into her new residence by April 1, but left some items of personal property behind in the rental property. The trial court specifically found that appellant had abandoned the property left behind. We must determine whether this factual determination by the trial court is supported by competent, credible evidence. See Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 461 N.E.2d 1273.
In order to abandon property, the owner must unequivocally relinquish the rights to it so that the owner’s conduct amounts to a virtual throwing away or total discarding of the property. See Hamilton v. Harville (1989), 63 Ohio App.3d 27, 577 N.E.2d 1125. Proof of intent to abandon along with acts or omissions implementing the intent must be shown. Id.

In examining the question of whether the tenant abandoned the property or not, the court reasoned that they came to their decision using the following factors:

We believe the trial court’s finding of abandonment is supported by competent, credible evidence. Appellant never paid rent for the month of April and made no effort to contact appellee regarding the status of her property left on the premises. She admitted that she moved into her new residence on April 1, and that she had the electricity in the rental property turned off. The door to the residence was unlocked and the items were next to other bags of garbage. Id. at 4-6.

But that did not end the question. The tenant further argued that there was an implied bailment on the part of the landlord as regards the property. A bailment occurs when you give something to another for a short time. That person in receipt of the goods (the bailee) has a duty to the bailor (the giver of the goods) to make sure that nothing happens to the property. This only makes sense. If you take your car to the repair shop, and while they are repairing it, they leave the keys in the ignition and it gets stolen, then the repair shop will be responsible for your damages.

But the Court did not find the tenant’s argument regarding bailment to be well-taken either:

Generally, a bailment is a contractual agreement in which the parties agree to enter into a bailment relationship. See David v. Lose (1966), 7 Ohio St.2d 97, 218 N.E.2d 442; Wolf v. Lakewood Hosp. (1991), 73 Ohio App.3d 709, 598 N.E.2d 160. There is no evidence in the record to indicate that either party intended to enter into a bailment contract.

However, constructive bailments may also arise by operation of law when mislaid property is found by a person who then assumed control of the property. Johnson v. Akron Mgt. Corp. (May 30, 1990), Summit App. No. 14320, unreported. As stated above, the trial court found that the property had been abandoned, not mislaid. Thus, no constructive bailment could have arisen between the parties. Further, as we noted supra, a landlord may dispose of abandoned property left on the premises by a tenant who has vacated the rental property. Id. at 6-7.

P. Date of Move Out

Surprisingly, the date that you have “moved out” of the Apartment can be called into question by the landlord in certain situations. For instance, if three tenants are renting on a month to month tenancy, and two give their thirty day notice and move out, if the last one stays, is that sufficient to continue the tenancy so that the landlord need only return the deposit when the last one leaves? In the case of Zeallear v. F&W Properties, 2000 Ohio App. LEXIS 3321 (July 25, 2000), Franklin App. No. 99AP-1215 (unreported), the landlord claimed that he had no duty to return the security deposit to the tenants who had left until all of the original tenants had moved out. The departing tenants argued that the landlord had already signed another rental agreement with two new tenants and the original tenant, and thus could not argue that their original tenancy continued.

The Tenth District Court of Appeals agreed with the departing tenants and ruled in their favor:

Clearly, after appellee and Gargett terminated their tenancy, duly giving thirty- day notice as required in the lease, and paying rent owed through the term of their tenancy, they were no longer “tenants” as defined in the lease or under Ohio law, and their security deposit was returnable at that time. The situation was rendered all the more clear by appellant’s execution of a new lease with the sole holdover tenant and his two new co-tenants. The landlord’s course of action at that time would have been to ascertain the state of the premises, make any lawful deductions from the security deposit based upon that inspection and other factors, such as past due rent, and return the proportionate balance of the security deposit to the departing tenants. Instead, appellant attempted to treat the new lease as a continuation of the old one, for which appellee and Gargett were responsible, and encouraged appellee to attempt to recoup his share of the security deposit from the new tenants. Even if we were to accept appellant’s contention that the security deposit was not severable among the tenants by the terms of the lease, and was thus not refundable in increments as each co-tenant individually vacated the apartment, the execution of the new lease effectively ended the tenancy for all of the initial co-tenants, and renders this argument ineffective. Id. at 9-10.

Thus the Trial Court’s ruling in favor of the departing tenants was upheld and they were awarded double damages and attorneys fees.