Chapter XIV: The Eviction Process

If your landlord is seeking to evict you, he must do so in accordance with Ohio law, specifically the Revised Code Section 1923. It is important to note that he cannot simply change the locks on your apartment door and throw all of your stuff out to the curb without any sort of warning or judicial process. That judicial process which the landlord must follow is described in Ohio Revised Code Section 1923. Your landlord may fail to observe the requirements of this section, but he does so at his own legal peril.

A. The Order of Battle

There must first exist a cause for the landlord to want to evict you. This right of eviction arises out of either a breach of a lease term, or (if the tenancy is month to month–also known as a “periodic tenancy”) no longer wishes to rent to you. Once the right to evict arises and the landlord decides to proceed with an eviction, the process goes something like this: The first thing that has to happen is that the landlord must put a three day notice to vacate upon your door. This three day notice to vacate is of vital importance to later proceedings, because it is what gives the Court the jurisdiction to hear a case of eviction. Without this three day notice, or if the three day notice is defective or was waived, then the Court is without jurisdiction to hear the matter and any decision that it comes to is null and void. This statute describing this Three Day Notice is reprinted in its entirety directly below.

PAGE’S OHIO REVISED CODE ANNOTATED
Copyright © 1999 Anderson Publishing Company
*** THIS DOCUMENT REFLECTS CHANGES RECEIVED THROUGH MARCH 29, 1999 ***
TITLE XIX [19] COURTS — MUNICIPAL — MAYOR’S — COUNTY
CHAPTER 1923: FORCIBLE ENTRY AND DETAINER
ORC Ann. 1923.04 (Anderson 1999)

§ 1923.04 Notice; service.

(A) Except as provided in division (B) of this section, a party desiring to commence an action under this chapter shall notify the adverse party to leave the premises, for the possession of which the action is about to be brought, three or more days before beginning the action, by certified mail, return receipt requested, or by handing a written copy of the notice to the defendant in person, or by leaving it at his usual place of abode or at the premises from which the defendant is sought to be evicted.

Every notice given under this section by a landlord to recover residential premises shall contain the following language printed or written in a conspicuous manner: “You are being asked to leave the premises. If you do not leave, an eviction action may be initiated against you. If you are in doubt regarding your legal rights and obligations as a tenant, it is recommended that you seek legal assistance.”

(B) The service of notice pursuant to section 5313.06 of the Revised Code constitutes compliance with the notice requirement of division (A) of this section. The service of the notice required by division (C ) of section 5321.17 of the Revised Code constitutes compliance with the notice requirement of division (A) of this section.

Once the landlord has stuck this notice on your door, you will have three days to move out. Weekends, holidays, and the day the notice was posted don’t count, so if your landlord posts the notice on Friday, he must wait through Monday, Tuesday and Wednesday and come back Thursday morning to see if you are still at the Apartment before he can file his motion for forcible entry and detainer.

If the landlord comes back after the end of the third day and finds that you are still there, he can go down to the Court and file a Forcible Entry and Detainer Action against you. This is basically a lawsuit which may be heard before a Magistrate alleging that he has the right to have you removed from the premises. A hearing date will be set for you and the landlord to come in and argue it out in front of the Court.

You can present witnesses and other evidence in your favor, as can the landlord. If your landlord loses, then his Forcible Entry and Detainer Action will be dismissed, and he will have to wait until you breach the lease again before he can start the eviction process anew with another three day notice. If he tries to evict you again for the same thing, you can show the Court a copy of your previous decision and argue that it is Res Judicata. Res Judicata means that once an issue has been decided, that is the end of it, and the Court will not let the landlord have another chance at the same dispute.

But I am going to assume that your landlord won at Court (so that we can move on through the eviction process) and that the Judge issued a decision in his favor. Just getting a decision from the Judge is not sufficient. We are now at the point wherein the landlord will want to convert the Judgment Entry in his favor to that of a Writ of Restitution (also known as a red tag). What this looks like is determined by the statute reprinted directly below. I put this statutory section here not because it is important for you to read and memorize, but rather so if you ever get one and are unsure, you can compare the wording and know what it is.

PAGE’S OHIO REVISED CODE ANNOTATED
Copyright © 1998 Anderson Publishing Company
*** THIS DOCUMENT REFLECTS CHANGES RECEIVED THROUGH NOVEMBER 1, 1998 ***
TITLE XIX [19] COURTS — MUNICIPAL — MAYOR’S — COUNTY
CHAPTER 1923: FORCIBLE ENTRY AND DETAINER
ORC Ann. 1923.13 (1998)

§ 1923.13 Execution; form.

When a judgment of restitution is entered by a court in an action under this chapter, at the request of the plaintiff or his agent or attorney, that court shall issue a writ of execution on the judgment, in the following form, as near as practicable:

The state of Ohio, . . . . . . . county: To any constable or police officer of . . . . . . township, city, or village; or to the sheriff of . . . . . . . . . . county; or to any authorized bailiff of the . . . . . . . . . . . .: (Name of court)

Whereas, in a certain action for the forcible entry and detention (or the forcible detention, as the case may be), of the following described premises, to wit: . . . . . ., lately tried before this court, wherein . . . . . . . . was plaintiff, and . . . . . was defendant, . . . . . . . judgment was rendered on the . . . . day of . . . . . ., . . . . . ., that the plaintiff have restitution of those premises; and also that he recover costs in the sum of . . . . . . . You therefore are hereby commanded to cause the defendant to be forthwith removed from those premises, and the plaintiff to have restitution of them; also, that you levy of the goods and chattels of the defendant, and make the costs previously mentioned and all accruing costs, and of this writ make legal service and due return.

Witness my hand, this . . . . day of . . ., A.D. . . . . . . . . . . . . . . . . . .Judge, . . . (Name of court).

Once this Writ of Restitution is placed upon your door, you will have about five days from the time it was filled out to get out. If you do not leave at that point, the landlord can schedule a time to meet with a Sheriff’s deputy or a Court Bailiff, travel to the Apartment, forcibly enter it, and remove you and your possessions to the curb.

B. Reasons Your Landlord Can Evict You

There are several reasons why your landlord might wish to evict you. I will divide them into categories because there are different legal considerations for different reasons.

1. Breach of Rental Agreement
If you have breached your rental agreement, your landlord can simply post the three day notice of eviction upon your door and follow the above process through from there. Examples of breaches of the rental agreement could include failure to pay rent, having a dog in violation of a no pets clause, subletting without the landlord’s permission, etc.

2. Breach of Tenant Duties

The Ohio Landlord Tenant Act of 1974 imposes certain duties upon tenants pursuant to Ohio Revised Code Section 5321.05. This statute 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. 5321.05 (1998)

§ 5321.05 Obligations of tenant.

(A) A tenant who is a party to a rental agreement shall do all of the following:
(1) Keep that part of the premises that he occupies and uses safe and sanitary;
(2) Dispose of all rubbish, garbage, and other waste in a clean, safe, and sanitary manner;
(3) Keep all plumbing fixtures in the dwelling unit or used by him as clean as their condition permits;
(4) Use and operate all electrical and plumbing fixtures properly;
(5) Comply with the requirements imposed on tenants by all applicable state and local housing, health, and safety codes;
(6) Personally refrain and forbid any other person who is on the premises with his permission from intentionally or negligently destroying, defacing, damaging, or removing any fixture, appliance, or other part of the premises;
(7) 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;
(8) Conduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb his neighbors’ peaceful enjoyment of the premises;
(9) Conduct himself, and require persons in his household and persons on the premises with his consent to conduct themselves, in connection with the premises so as not to violate the prohibitions contained in Chapters 2925. and 3719. of the Revised Code, or in municipal ordinances that are substantially similar to any section in either of those chapters, which relate to controlled substances.

(B) 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.

(C) (1) If the tenant violates any provision of this section, other than division (A)(9) of this section, the landlord may recover any actual damages that result from the violation together with reasonable attorney’s fees. This remedy is in addition to any right of the landlord to terminate the rental agreement, to maintain an action for the possession of the premises, or to obtain injunctive relief to compel access under division (B) of this section.

(2) If the tenant violates division (A)(9) of this section and if the landlord has actual knowledge of or has reasonable cause to believe that the tenant, any person in the tenant’s household, or any person on the premises with the consent of the tenant previously has or presently is engaged in a violation as described in division (A)(6)(a)(I) of section 1923.02 of the Revised Code, whether or not the tenant or other person has been charged with, has pleaded guilty to or been convicted of, or has been determined to be a delinquent child for an act that, if committed by an adult, would be a violation as described in that division, then the landlord promptly shall give the notice required by division (C) of section 5321.17 of the Revised Code. If the tenant fails to vacate the premises within three days after the giving of that notice, then the landlord promptly shall comply with division (A)(9) of section 5321.04 of the Revised Code. For purposes of this division, actual knowledge or reasonable cause to believe as described in this division shall be determined in accordance with division (A)(6)(a)(I) of section 1923.02 of the Revised Code.

If one of these duties are breached, then the landlord must give you a thirty day notice to cease and desist from the violations of Revised Code Section 5321.05. This works a lot like R.C. 5321.07 in reverse. If you do not cease your violations within 30 days, then the landlord can hang a three day notice to vacate the premises and proceed as above under the eviction statute.

For example, let’s say that your lease allows for pets, but that you don’t clean up after your pets, and they make the apartment unsanitary. Since the tenant has a duty to keep the apartment in a clean and sanitary manner, then the landlord must send the tenant a 30 day letter advising you to clean up the problem. If the problem persists after the 30 day period, then the landlord has the right to hang the three day notice on the door and go from there. It is important to note that there are some court decisions which allow the 30 day notice and the three day notice to be served together, even in the same document.

3. Violations of Both Lease and Tenant’s Duties

Landlords like speedy evictions. They don’t like to send out 30 day letters and wait for all that time before hanging the three day notice. Thus they like to evict for breaches of the lease, rather than breaches of the Ohio Revised Code Section 5321.05. Attorneys for landlords thought they could get around the 30 day letter requirement by making the tenant’s duties to the landlord a part of the lease by copying Ohio Revised Code Section 5321.05 lock, stock, and barrel right into the body of the rental agreement. That way, a violation of Ohio Revised Code Section 5321.05 would also automatically be a violation of the rental agreement. Then they could argue that since it was also a violation of the lease, then they did not have to send out the 30 day letter.

The courts saw through this and decided that the landlord cannot circumvent the thirty-day notice requirement by placing the R.C. 5321.05 obligations in the written lease and then ignore the statutory notice requirement. Parker v. Fisher (1984), 17 Ohio App.3d 103, syllabus 1. Where an action of a tenant can be construed to violate both a term of the written lease and a provision of R.C. 5321.05 that materially affects health and safety, the thirty-day notice of termination of lease, as required by R.C. 5321.11, must be given by the landlord. Sandefur Management Co. v. Wilson (1985), 21 Ohio App.3d 160, syllabus 2.

C. Illegal Activity

If you are engaging in certain legally prohibited activities, especially the manufacture, sale, or use of drugs
at the apartment, your landlord will have cause to evict you. In fact, he would be a fool not too, because with the current state of civil forfeiture laws, if the landlord knew or should have known that the apartment is being used for the sale and distribution of drugs, the apartment building can be forfeited to the government and sold at auction. Nobody wants this. So the law provides that if you are caught in illegal activity at the apartment, especially the sale or manufacture of drugs, then the landlord has the right to evict you on that basis.

D. Ways To Beat An Eviction Action

There are two categories of ways to beat an eviction action. The first is on the merits, the second is on the procedure.

1. On The Merits

If your landlord is evicting you for failure to pay the rent, then you need to bring in proof that you have indeed paid the rent. If your landlord is evicting you because you have a dog in violation of the lease, you have to bring in evidence that you do not have a dog, or that the lease allows dogs. This is winning on the merits. There’s not much too it. You are either right or wrong, and the Judge will either see it or he or she won’t.

It helps to have trustworthy witnesses and lots of documentation to back up your claims. That’s why you should have all correspondence with the landlord in signed, dated, written form so that no one can come back later and say something did or did not happen. Why talk on the phone about stuff when you know you should be getting it in writing? Keep records, keep receipts of rental payments. Keep a diary or logbook of what is going on.

a. Equity Abhors a Forfeiture

Evictions are an example of the Court using its powers of Equity. The Court’s Equity powers allow it to order persons to do one thing or another, or perhaps refrain from doing one thing or another. This is different from the Court’s legal power, as its legal power is said to include only a determination of who owes what to whom. It used to be that Courts were split between Courts of Law and Courts of Equity. If you wanted money from someone, you had to go to a Court of Law. If you wanted the Court to force someone to do something, then you had to go to a Court of Equity (also known as a Court of the Chancery).

Equity courts were originally church based, and there is a surviving maxim of Equity which says that a party must come to a court of equity with “clean hands.” The proposition is also stated in the following terms: “to get equity, you must do equity.” This means that if you are a scoundrel and have treated the other side badly, even though you may be entitled to equitable relief, the Court of Equity has the discretion to leave you out in the cold if you are not an above board type person.

Today the legal and equitable courts have merged which simplifies matters a great deal. There is a very helpful case in Ohio law called Zanetos v. Sparks (1984), 13 Ohio App.3d 242. It stands for the proposition of law that Equity abhors a forfeiture and in fact the Tenth Appellate District Court in Franklin County stated in specifics as follows:

Clauses in written leases which give lessors [landlords] the right to declare forfeiture of a lease for nonpayment of rent are valid. However, unless a lessee’s [renter’s] conduct is willful or malicious, or if compensation for the breach cannot be made due to the lessor, a court exercising its equity powers will grant the lessee [renter] relief from forfeiture. The forfeiture clause for nonpayment of rent is not strictly construed, rather, it is viewed as merely security for the payment of rent. The courts will balance the equities of the case and relieve the forfeiture where the equities favor the lessee [renter]. See Peppe v. Knoepp (1956), 103 Ohio App. 223 [3 O.O.2d 281].
Numerous Ohio cases involving lease agreements stand for the proposition that equity abhors a forfeiture and that a forfeiture will not be declared where the equities of the parties can be adjusted. See Gould v. Hyatt (App. 1926), 4 Ohio Law Abs. 468; Prosser v. Kruger (App. 1923), 1 Ohio Law Abs. 348; Dietrich v. Ezra Smith Co. (1920), 12 Ohio App. 243.

In Zanetos, the tenant was unsure to whom he was supposed to pay rent because the property had been transferred. The tenant had always made payments timely in the past, and had made substantial improvements to the property. Further, the rent was only nine days overdue when the tenant learned the identity of the new landlord. This means that the judge might give the tenant some slack on minor breaches of the lease. If you were on your way to pay the rent at an apartment at which you had been living for several years and you had always previously paid your rent on time, and you were robbed at gun point and this caused a three or four day delay in getting the rent to your landlord, then a Judge might decide that even though you technically broke the rental agreement by not paying on time, Equity abhors a forfeiture and the judge may not allow the eviction to proceed under such unjust circumstances.

More useful language is found in the case of Miraldi v. The Life Insurance Co. of Virginia (1971) , 48 Ohio App. 2d 278. Evictions consist of the landlord declaring a forfeiture of the lease. The Ninth Appellate District Court said in Miraldi that:

No citation of authority is needed for the proposition that forfeiture is not favored in the law, and a waiver will be inferred whenever it can reasonably be inferred from the facts. Id. at 282.

While these cases establish a preference in the law for a declaration of waiver over a declaration of forfeiture, the trouble with these arguments is that it is the Judge’s call. There is no guarantee that the Judge will see you or your reason as blameless. In the above example of the robbery that prevents timely payment of the rent, the Judge might blast the victim for being so stupid to carry his rent around in cash in a dangerous neighborhood. The Judge might also take the simpler expedient of deciding that the robbery never happened and that you are making up some fish story to cover your tracks.

2. On The Procedure

Winning on the procedure involves pointing out to the Court some legal step that the landlord omitted in the eviction process. If the landlord never posted a three day notice of eviction, then the landlord’s eviction action will have to be dismissed. Even if the landlord did post a three day notice, its wording might not comply with that demanded by Ohio Revised Code Section 1923.04 reprinted above.

a. Waiver of Three Day Notice

Under R.C. 1923.04, a landlord is required to give his tenant at least three days notice before beginning an action in forcible entry and detainer. Because adequate notice under the statute is a necessity before a forcible entry and detainer action can be filed, it is reversible error for a trial court to evict a tenant if no three day notice has been given. See Shimko v. Marks (1993), 91 Ohio App. 3d 458, 463, 632 N.E.2d 990. Similarly, an action in forcible entry and detainer cannot be maintained if the landlord has waived his notice to the tenant. Id. A waiver of the three day notice is the same as if there had never been a three day notice.

How does a landlord waive his Three Day Notice? The generally accepted rule in Ohio is that, by accepting future rent payments after serving a notice to vacate, a landlord waives the notice as a matter of law, as such acceptance is inconsistent with the intent to evict. Authority for this proposition comes from the cases of Associated Estates Corp. v. Bartell (1985), 24 Ohio App. 3d 6, 9, 492 N.E.2d 841 and Presidential Park Apts. v. Colston (App.1980), 17 Ohio Op. 3d 220, 221.

But a payment by a tenant is only a “future rent payment” when it is for a period of occupancy after the date of the landlord’s posting of the three day notice to vacate. Sheridan Manor Apartments v. Carter, 1992 Ohio App. LEXIS 6528, (Dec. 22, 1992), Lawrence App No. 92CA4, unreported. Rent paid for a period of occupancy before the landlord’s posting of the three day notice to vacate is for rent that is past due and already owed. The generally accepted rule is that a landlord’s acceptance of past due rent does not waive the statutory three-day notice to vacate the premises. Graham v. Pavarini (1983), 9 Ohio App. 3d 89, 92, 458 N.E.2d 421; Julian Invests., Inc. v. Dudley, 1999 Ohio App. LEXIS 429, (Feb. 12, 1999), Greene App. No. 98-CA-85, unreported.

The weight of recent authority in Ohio supports the landlord’s right to collect rent after the notice to vacate, as long as it is taken as payment for obligations which arose before he posted the notice. Graham, 9 Ohio App. 3d at 92; Mecca Management, Inc. v. Gouse, 1997 Ohio App. LEXIS 5270, (Nov. 21, 1997), Lucas App. No. L-97-1185, unreported; see also Bristol Court v. Jones, 1994 Ohio App. LEXIS 4479, (Sept. 29, 1994), Pike App. No. 93-CA- 520, unreported (“Nothing * * * prevents a landlord from accepting payments for rent past due.”). A tenant will continue to incur obligations for rent when he occupies a premises after the notice to vacate is given. Julian Invests., 1999 Ohio App. LEXIS 429 at 8-9. Thus, it is not considered inconsistent for a landlord to collect upon such obligations after they become past due and still insist on his right to present possession.

If all that makes your head swim, then perhaps two examples will help. In example A, the rent is Five Hundred Dollars ($500.00) per month. The tenant owes the landlord for the months of January, February and March. The landlord decides that he will no longer wait and hangs a three day notice to vacate on the door of the apartment on April 3. The tenant brings in $1,500.00 after the Notice to Vacate is posted and promises another $500.00 in a week’s time. The landlord accepts the $1,500.00, and also accepts the $500.00 one week later. The eviction hearing is set for April 20. But instead of dismissing the forcible entry and detainer action, the landlord goes ahead with the eviction anyway.

The landlord wins the eviction because he has only accepted money for rent that is past due. On April 1, the rent became due and owing, and became past due rent, even though part of it was for a period in the future, the remainder of April.

But example B gives us a different result. Let’s assume the same facts wherein the tenant makes good on the rent for January, February and March, only the tenant promises the landlord a payment of another One Thousand Dollars ($1,000.00) during the first week in April, which will pay for both April and May’s rent. If the landlord accepts this amount as well before the eviction hearing on April 20, then the landlord has accepted future rent (the extra Five Hundred Dollars for the month of May), and this is inconsistent with his three day notice, and constitutes a waiver of it.

b. Helping Your Landlord To Waive His Three Day Notice to Vacate

If the owner of the apartment is different than the rental manager who is trying to throw you out, and you know where the owner lives, you may wish to try sending the rent check directly to the owner and payable to him. If the owner cashes the check for future rent, not caring that the rental manger is trying to evict you, then this may well constitute a waiver of the notice to vacate that the rental manager put on your door. Just bring the canceled check into court with you.

Another way of doing it that works with large rental management companies is to bring in your future rent for the next month in the form of cash. Give it to the receptionist and get a receipt from her. Once you have the signed, dated receipt for cash in hand, showing it to the Judge at the eviction hearing may be all that you have to do to prove that the three day notice to vacate has been waived.

Some landlords simply don’t understand the law, and may accept your rental payment for future rent themselves. Their own greed works against them when you come in with a number of crisp one hundred dollar bills. They will give you a signed, dated receipt, not knowing that they are waiving their three day notice to evict and that the court date that they have set up for next week is not going to go well for them.

If you pay your future rent by check, the landlord may simply return your check to you uncashed and still maintain her eviction action against you. But this is not necessarily true if the landlord waits until the Court date to do this. In the case of Pace v. Buck, (1949), 86 Ohio App. 25, 85 N.E.2d 401, we find the following wording:
Where the landlord retains a money order received from the tenant in payment of rent and the landlord fails to notify the tenant that the money order was not accepted in payment of rent, or that it was retained for evidentiary purposes, and fails to tender the money order to the tenant on or before the day of trial, the retention of money order constitutes an acceptance in payment of the rent. It follows that the defendant could not be legally evicted during the term for which the rent was paid. Id. at 28.

In so holding, the court observed that due to the landlord’s retention of the money order, and despite its subsequent tender of the money order to the trial court, “the [tenant] did not get possession or control of the money order and was not permitted to cash it, which she would have been privileged to do had a sufficient tender been made to her.” Id. at 27.

Another procedural way to defeat an eviction action is problems with service. The notice to vacate can be tacked to the Apartment door, but if the landlord simply tacked a copy of the forcible entry and detainer action to your door and left, then this will not be sufficient to have served you. This is a different stage of the proceedings than the three day notice. The forcible entry and detainer action must be put in your hands, or into the hands of some person at your place of residence of suitable age and discretion.

There is a commonly used type of service called certified mail service. The Clerk of Courts will send out a copy of the lawsuit by certified mail. If you get it and sign for it, then you are served. But a lot of people like to play games and duck the certified mail, thinking that if they don’t sign for it, then they can claim later that they never got notice of the lawsuit. But the courts are wise to this and a new rule has been promulgated. If the landlord waives notice by certified mail service, the Clerk still sends out the Complaint by certified mail. This time if it comes back unclaimed or refused, then the Clerk of Courts will re-send the Complaint by regular mail service and you will be deemed served at that point.

Yet another procedural way to defeat an eviction is if the forcible entry and detainer action does not list all of the residents of the apartment. If only one of the five roommates is listed, then the writ of restitution issued by the Court will be effective against the listed person, but not against those who were not party to the lawsuit, and were not served with the forcible entry and detainer action. The landlord may try to get around this by listing you and “all other occupants.” But if you can show that the landlord knew the names of the other occupants (let’s say such persons were on the lease) and the other persons at the apartment had no notice of these proceedings, then the eviction may not be effective against them.

Procedural errors are rare, but they happen, and when they do, you would be wise to take advantage of them to complicate your landlord’s unjustified lawsuit against you. But remember that procedural errors will not solve your problems in the long run. They are a temporary substitute at best for a decision upon the merits. Also, be advised that if there is any way that a Judge can bend or interpret the facts so as to decide a case on its merits, he will do so. This means that even if you think that you have a procedural solution to your problems, you should still stand ready to defend yourself on the merits in case your procedural argument fails. Procedural solutions are at best good bargaining chips to leave the apartment on terms that are better than what you would have received had you been staring down the barrel of a red tag.