Chapter VII: Landlord’s Duties to the Tenant

The Ohio Legislature also enacted another section of the Landlord Tenant Act besides Ohio Revised Code Section 5321.07 which also impacts upon problems during the tenancy, and this section 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. 5321.04 (1998)

§ 5321.04 Obligations of landlord.

(A) A landlord who is a party to a rental agreement shall do all of the following:

(1) Comply with the requirements of all applicable building, housing, health, and safety codes that materially affect
health and safety;

(2) Make all repairs and do whatever is reasonably necessary to put and keep the premises in a fit and habitable
condition;

(3) Keep all common areas of the premises in a safe and sanitary condition;

(4) Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, and air
conditioning fixtures and appliances, and elevators, supplied or required to be supplied by him;

(5) When he is a party to any rental agreements that cover four or more dwelling units in the same structure, provide and
maintain appropriate receptacles for the removal of ashes, garbage, rubbish, and other waste incidental to theoccupancy of a dwelling unit, and arrange for their removal;

(6) Supply running water, reasonable amounts of hot water and reasonable heat at all times, except where the building that includes the dwelling unit is not required by law to be equipped for that purpose, or the dwelling unit is so constructed that heat or hot water is generated by an installation within the exclusive control of the tenant and supplied by a direct public utility connection;

(7) Not abuse the right of access conferred by division (B) of section 5321.05 of the Revised Code;

(8) Except in the case of emergency or if it is impracticable to do so, give the tenant reasonable notice of his intent to
enter and enter only at reasonable times. Twenty-four hours is presumed to be a reasonable notice in the absence of
evidence to the contrary.

(9) Promptly commence an action under Chapter 1923. of the Revised Code, after complying with division (C) of section
5321.17 of the Revised Code, to remove a tenant from particular residential premises, if the tenant fails to vacate
the premises within three days after the giving of the notice required by that division 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. Such actual knowledge or reasonable cause
to believe shall be determined in accordance with that division.

(B) If the landlord makes an entry in violation of division (A)(8) of this section, makes a lawful entry in an unreasonable manner, or makes repeated demands for entry otherwise lawful that have the effect of
harassing the tenant, the tenant may recover actual damages resulting from the entry or demands, obtain injunctive relief to prevent the recurrence of the conduct, and obtain a judgment for reasonable attorney’s fees, or may terminate the rental agreement.

A. Lease Agreements To Transfer These Duties

Your landlord may attempt through provisions in the rental agreement to get rid of some of these duties mentioned in Ohio Revised Code Section 5321.04. Such clauses will not be effective and will be ignored by the Court where they conflict with any portion of the Landlord Tenant Act, including that which is printed directly above. So if your rental agreement states in clear language that the landlord shall not be responsible for providing water to the premises, the Court will ignore that clause because it conflicts with the provisions of the Landlord Tenant Act of 1974. If your landlord does not perform the duties that he owes to you under the statute, then your remedy is found in 5321.07 also reprinted in a previous chapter.

B. Documentation

Some words about documentation and ground work here. When you have a bad condition at your apartment, or a failure of the landlord to fulfill his duties under 5321.04, you should document it on video camera with a newspaper to time stamp it. What works in Court is a combination of oral testimony and tangible evidence. The Court will want to see and hear things for itself, rather than just experiencing things through your own words months after they occurred. For instance, if the temperature in your apartment will not exceed 55 degrees in January no matter how high you blast the heat, go buy a thermometer and put it next to the thermostat in the house. Set the thermostat at its highest setting. Focus the camera on the thermometer, the newspaper, and the thermostat and let the camera run for an hour. The court
may not want to sit there for an hour and watch the tape, but it can fast forward to different parts of the tape to see how things are going.

I can’t address every situation and how to document it, just be creative. Always put yourself in the landlord’s shoes as you look at your proof and try to knock holes in it. Try to argue to yourself that it was somehow faked because of this or that. Then redocument the evidence so that such arguments cannot be made.

Document the conditions when you first send the letter advising the landlord of the problem, and document the conditions again after the landlord fails to fix the problem at the end of the thirty days.

Remember that you will need to prove that your landlord got your letter advising him of the problems at the apartment. This means sending the letter certified mail, return receipt requested. If you do this your landlord will have to sign for the letter, and then the document that he signed will get sent back to you, showing the date that he received it. Staple this return receipt to a photocopy of the letter you sent and you will have pretty good proof not just that the landlord got the letter, but also when he got it for the purposes of counting the thirty days.

C. Landlord Liability For Injuries To The Tenant

1. Three Types of Torts

Let’s start with a little first year tort law. When one person injures another, it is called a tort. A tort is a civil remedy wherein you can sue the other person for money to compensate you for the damages that you have suffered. There are three types of torts. They are Intentional Torts, Negligent Torts, and Strict Liability Torts.

a. Intentional Torts

Intentional Torts rarely arise in the landlord tenant arena. Assault would be an intentional tort. False imprisonment would be an intentional tort. These types of torts are the civil wrongs in which the Defendant acted with malice, hatred, or ill will in taking an action that he knew would injure the Plaintiff. I guess there are landlords who have hit their tenants in the nose, but there is nothing particular to the landlord tenant relationship that makes such a thing a legally remarkable
part of landlord tenant law. It would be handled just like any other intentional tort, with a good personal injury lawyer, and therefore is beyond the scope of this work. Because these torts involve evil intent, the law provides for punitive damages as a deterrent to keep the wrongdoer from so acting again.

The only intentional torts that usually appear in the landlord tenant context come from trespass, trespass to chattels, and conversion. These will be dealt with under the chapter on evictions, specifically the section of that chapter on Self-Help Evictions.

b. Strict Liability

Strict Liability torts are the exact opposite of Intentional Torts. There are certain activities that make a person automatically liable for damages that they do to others, no matter how careful and considerate they were at the time. An example of this might be ultra-hazardous activity, like blasting the support structures out of an office building during a demolition project. If someone miles away gets hurt by a falling chunk of concrete, that person can sue the demolition company and recover his damages regardless of the care taken by the company to prevent injury. There are very few ultra-hazardous activities that landlords undertake.

Another type of strict liability is when someone manufactures a product and places it into the stream of commerce for sale and resale. If that product turns out to be defective, then the manufacturer is strictly liable for the damages done no matter how well-built the product was or how careful the manufacturer was in trying to prevent defects. But you don’t see many landlords manufacturing items and putting them into the stream of commerce. About the only area where
strict liability comes into play in the landlord tenant context in Ohio is dog or animal bites.

The law in Ohio is that if your dog bites someone, you are strictly liable for the damages that were done. You can have your dog firmly tied up and somehow the darn thing got away. It still doesn’t matter. You can be sued. Think about this when you let your dog run around in the park. If your dog is mean, be careful. If another tenant in the building has a dog, and the dog bites you, you may have an action against the landlord. In Ohio, the law says if you own or “
harbor” a dog that bites someone else, then you are strictly liable (unless you are on your ownproperty and it can be shown that the person bitten was mistreating the dog). There are cases that interpret the landlord letting the dog stay at the building as “harboring” the dog.

In Thompson v. Irwin, 1997 Ohio App. LEXIS 4728 (Oct. 27, 1997), Butler App. No. CA97-05-101, unreported, the Twelfth Appellate District Court decided a case involving a dog which had broken loose from its chain and had bitten the plaintiff while in a common area (an area not under the control of the tenant like a courtyard or a hallway upon which many apartment doors open). The owner of the dog leased a mobile home from the landlord on an oral month-tomonth
tenancy. The injured party therefore contended that the park retained some control over the premises.

The Court rejected that contention, noting that in determining whether a landlord is liable as a harborer, the focus shifts from possession and control over the dog to possession and control of the premises where the dog lives. A “‘harborer’ is one who is in possession and control of the premises and silently acquiesces in the dog being kept there by the owner.” 1997 Ohio App. LEXIS 4728 at 6. A lease transfers both possession and control of the leased premises to the
tenant. Riley v. Cincinnati Metro. Hous. Auth. (1973), 36 Ohio App. 2d 44, 48, 301 N.E.2d 884. Thus, a landlord’s liability as a harborer for injuries inflicted by a tenant’s dog is limited to those situations in which the landlord permitted the tenant’s dog in common areas. The Court quoted extensively in Thompson from Godsey v. Franz, 1992 Ohio App. LEXIS 1087 (Mar. 13, 1992), Williams App. No. 91WM0008, unreported, as follows:

Whether a landlord is liable as a harborer for . . . injury inflicted by a tenant’s dog depends upon whether the landlord permitted or acquiesced in the tenant’s dog being kept in common areas or in an area shared by both the landlord and tenant. If the tenant’s dog is confined only to the tenant’s premises, the landlord cannot be said to have possession and control of the premises on which the dog is kept. If the dog gets loose and roams onto common areas without the landlord’s permission, the landlord cannot be said to have acquiesced. Further, if the landlord has established
rules for the maintenance of pets by his tenants, such rules militate against the finding of acquiescence. On the other hand, where the landlord acquiesces in the keeping of the tenant’s dog in common or joint areas, by allowing it to use or roam freely over such areas, the two elements of acquiescence and possession and control are present, and the landlord may be held liable as a harborer. Id. at 11-12.

Applying this analysis, the Court stated in Thompson that “a failure to properly enforce park rules does not constitute harboring an animal since the requisite mental intent is lacking. Further, establishing park rules for the maintenance of animals or pets of one’s tenants or residents, does not make one an owner, keeper, or harborer of a dog. ” Thompson at 5.

So if the landlord knows that the dog is being kept in the common areas of the apartment and does not protest, and the dog later bites another tenant or guest while in the common area, then the landlord can be sued and will have strict liability for the damages that are caused. The reason that all this is important is that the owner of the dog will rarely have sufficient money topay for plastic surgery to repair or conceal the damage to the face of a young child, but the landlord, or more likely his premises insurance policy, well might.

c. Negligence

1) Four Elements of Negligence

Negligent torts happen quite often in the landlord tenant area. Negligence is where someone had a duty to be careful but failed in that duty and someone else was accidentally hurt. Most car accidents are negligence. Medical malpractice is negligence. There are four distinct elements to negligence: Duty, Breach, Proximate Causation, and Damage.

It must first be shown that the Defendant owed a duty to the Plaintiff to prevent a certain kind of harm. Then it must be shown that the defendant breached that duty. The Defendant’s breach of that duty must have proximately caused the damages suffered by the Plaintiff. Let’s look at this in the context of real life for some application.

In the case of a car accident, all operators of motor vehicles owe a duty to other drivers to maintain an assured clear distance ahead of their own vehicles. This means that you owe a duty to the person driving in front of you not to get so close to him that you can’t stop in time. When you hit someone from behind, you have breached your duty. Your breach of the duty has probably caused damages to the rear bumper of the car ahead of you. Now you have the four elements:
Duty, Breach, Proximate Causation, and Damages.

2) Landlord Negligence In The Old Days

In the context of the landlord tenant relationship, it used to be that the landlord was immune from liability once he was no longer in possession of the premises. This comported with the old fashioned idea that the tenant, during the term of his tenancy was in control of the premises and therefore in the same shoes as the owner of the property. But this rule slowly
began to change.

3) The New Standard

Nowadays, in Ohio, the landlord can be liable for negligence. In order to fulfill the first element though, that of duty, the tenant must have first put the landlord on notice that there is something dangerous at the premises. Once the landlord has notice of the problem, a duty has arisen on the part of the landlord to the tenant. The case on point here is Shroades v. Rental Homes (1981), 68 Ohio St. 2d 20.

As an example, if you notice that one of the steps in your stair way is loose, there is no duty upon the part of your landlord to fix the step until you inform him of the problem. Once you inform him, the duty to fix it arises. If the landlord fails to fix the loose step after being told about it, then he has breached his duty. If the failure to fix the step after being told about itcauses the tenant to slip and fall down the stairway, then we have the third element, proximate causation. If the tenant suffers a broken leg as a result of the fall, then the tenant has damages.

So the important thing is to put your landlord on notice of problems at your apartment. Without such notice, there can be no recovery for your injuries. This is true whether the tenant is inside the apartment or in a common area leading up to his apartment. The notice can be oral or written, but since you have read this work, you will know to do things in writing. If you ever do communicate with the landlord orally regarding an important topic, it is wise to send the landlord
a letter to the following effect:

Dear Mr. Landlord, the purpose of this letter is to confirm the contents of our conversation on May 21, 2000 wherein you said , and I said . If that is not your recollection of our conversation, please contact me in writing so we can clarify what was discussed.

If a landlord undertakes to make repairs, she must make them in a safe and non-negligent fashion. In the case of Davis-Blunt v. Myatt (2000), 134 Ohio App.3d 213, a landlord negligently repaired a piece of carpet on the stairs. The First District Court of Appeals in Hamilton County held that whether or not the landlord was negligent was a question that should have been decided by the jury, and that the trial court’s dismissal of the case was improper. The
Court reasoned that:

Pursuant to R.C. 5321.04(A)(2), a landlord who is party to a rental agreement shall “make all repairs and do whatever is reasonably necessary to put and keep the premises in a fit and habitable condition.” Liability is contingent upon the
tenant’s proof of proximate cause and “that the landlord received notice of the defective condition of the rental premises, that the landlord knew of the defect, or that the tenant had made reasonable, but unsuccessful, attempts to notify the
landlord.” Shroades v. Rental Homes, Inc. (1981), 68 Ohio St. 2d 20, 25, 427 N.E.2d 774, 778 (emphasis added). The landlord’s violation of the duty to repair is negligence per se. Id.

Aside from the statutory remedy in R.C. Chapter 5321, at common law a “lessor [can] be held liable for the condition of premises if there were an agreement to repair or a violation of a duty imposed by statute.” Shroades, supra, at 24, 427 N.E. 2d at 776-777. Furthermore, at common law it has always been the rule that a landlord who undertakes and negligently makes repairs to the premises incurs liability for injuries to tenants or their invitees that are proximately caused by the negligent repair. See Simpson v. Delta Property Management, Inc., 1986 Ohio App. LEXIS 7326 (June 25, 1986), Hamilton App. Nos. C-850562 and C-850575, unreported.

In this case, the landlord had pointed out the carpet problem to the tenant before the lease was signed, and told the tenant that the carpet would be repaired before she moved in. The landlord merely glued the carpet into place (the carpet has previously come loose and it had beenstapled but this repair did not hold). The carpet had come loose again and the tenant fell over the loose piece. One dissenting justice on the First District Court of Appeals felt that unless the landlord had notice that the new repair had come loose, then the landlord could not as a matter of law be held liable. But the majority did not agree.