Representing LowIncome Tenants in Franklin County Benjamin Horne
Representing Low-Income Tenants in Franklin County Benjamin Horne Melissa Benson Dianna Howie Jyoshu Tsushima The Legal Aid Society of Columbus Magistrate Tony Paat Franklin County Municipal Court
LASC Presenters Benjamin Horne, Supervising Attorney, Housing bhorne@columbuslegalaid. org 614 -737 -0180 Melissa Benson, Housing Attorney mbenson@columbuslegalaid. org 614 -737 -0128 Jyoshu Tsushima, Housing Attorney jtsushima@columbuslegalaid. org 614 -737 -0181 Dianna Parker Howie, Supervising Attorney, Pro Bono dhowie@columbuslegalaid. org 614 -737 -0184 3
Topics Covered 1. Views from the Bench 2. Hearing Simulation and Basic Procedures/Practices of Eviction Court 3. Intro to TAP & Day in the Life of a TAP Volunteer 4. 10 Eviction Defenses and Practical Tips 5. Pro Bono Attorney Panel 4
Views from the Bench Magistrate Tony Paat Franklin County Municipal Court October 13, 2017
Hearing Simulation and Basic Practices and Procedures of Eviction Court Melissa Benson Benjamin Horne The Legal Aid Society of Columbus October 13, 2017
Forcible Entry and Detainer AKA an Eviction Two Causes of Action: • First Cause of Action – Restitution of Premises • Second Cause of Action – Money Damages Two separate hearings 7
Commencement of Action • Notice to Leave Premises (3 day notice) must be served at least three days before filing the case. R. C. 1923. 04 • Other possible notices: – Notice to Cure (5321. 11) – Notice to Terminate Periodic Tenancy (5321. 17) • We will discuss notices in detail when discussing defenses to eviction actions 8
First Cause of Action 9
First Cause of Action • Restitution (possession) of the premises • Governed by R. C. Chapter 1923 • Civil Rules of procedure apply – Except “to the extent where they would by their nature be clearly inapplicable” TAP clinic is specifically to assist with first cause of action 10
First Cause of Action • Expedited hearing schedule – First cause hearing usually scheduled approximately 2 weeks after filing of complaint • Written answer is not required by hearing date – Exception: Counterclaim filed pursuant to R. C. 1923. 061 11
First Cause of Action Reasons for eviction can include • Non-payment of rent • Breach of lease term • Failure to comply with obligation set forth in R. C. 5321 • Hold-over tenancy 12
Hearing on First Cause of Action 13
Hearing on First Cause of Action Location: Franklin County Municipal Court 375 S. High Street Courtroom 11 A (11 th Floor) TAP sign in table located on 11 th Floor outside Courtroom 11 B 14
Hearing on First Cause of Action • Magistrate presides over First Cause • Generally no court reporter (can request) • Summary proceeding – any defense may be asserted at trial, even in written answer hasn’t been filed 15
Hearing on First Cause of Action Continuances: • No continuance of more than 8 days past original hearing date (R. C. 1923. 08) – Unless by consent of landlord • Magistrates generally will give first continuance to Defendant – IF tenant requests continuance before beginning to testify/answer questions about case 16
Hearing on First Cause of Action • Tenant may make Motion for More Definite Statement if the landlord has failed to attach documents necessary to defense – Lease – Accounting of Damages Owed? • If the court grants the motion, the first cause should be continued so that landlord can amend the complaint to attach documents 17
If the tenant loses the first cause… 18
Writ of Restitution • Order to set tenant out of rental property – Landlord cannot set out without writ • Must be issued within 30 days of judgment, pursuant to Franklin M. C. Rule 9. 06(4). – Parties can, by agreement, extend the writ issuance period up to 120 days from the agreed entry. • May be issued as soon as judgment is granted to plaintiff • Plaintiff must purchase writ from court clerk for it to issue 19
Set-Out • Once writ is purchased, landlord can proceed with set out under supervision of bailiff • Property is “red tagged” once writ is purchased • Can set out as soon as five days after red tag is posted (not including day of tagging) • Bailiff must proceed with set out no sooner than 5 days and no later than 10 days after premises is tagged – It will be 5 days unless the landlord doesn’t ask for set out – Has to pay separate fee for set out 20
Objections to Magistrate’s Decision • Must be filed within 14 days. Civ. Pro. 53(E)(2) • No automatic stay of set out – Must file Motion for Stay – Tenant may be required to post bond for stay • In practice, should be filed within 5 days of writ of restitution to avoid set out – Walk copy to duty judge’s office – 10 th Floor • Could also file Motion for Relief from Judgment (Civ. R. 60(B)) or Motion for New Trial (Civ. R. 59) 21
Second Cause of Action 22
Second Cause of Action • Money damages for: – Back rent – Damages to property – Late fees – Other charges, e. g. utility bills owed by tenant but paid by landlord Representing a client at TAP does not mean you represent them in the second cause 23
Second Cause of Action • Answer must be filed within 28 days of service of summons • If no answer filed, landlord can move for default judgment on second cause claim We have a second cause answer packet available for TAP clients to file pro se 24
Second Cause of Action • Hearing scheduled after disposition of First Cause of Action – Unless R. C. 1923. 061 counterclaim filed, then both causes are heard together • Second Cause assigned to judge for trial 25
Defending Against Money Damages • File an Answer within 28 days • Assert all possible affirmative defenses • Tenant’s surrender of premises before First Cause hearing only dismisses First Cause of Action. Second Cause of Action remains. • Tenant is still obligated under the lease until new tenant is secured. – Landlord must exercise reasonable diligence to re -rent in order to mitigate damages 26
Defending Against Money Damages: Counterclaims • Compulsory counterclaims must be brought with Answer • Examples: – Rent abatement due to conditions – Claim for unlawful entry to residential premises • Permissive counterclaims may be raised • Attorneys fees may be awarded to prevailing party 27
Let’s go to the tape…. 28
Intro to TAP & Day in the Life of a TAP Volunteer Jyoshu Tsushima The Legal Aid Society of Columbus October 13, 2017
Introduction to TAP • Tenant Advocacy Program – daily legal clinic for eviction issues on site at Franklin County Municipal Court • Began March 2017 • Provides advice, assistance with negotiations, and representation at first cause hearings for low income tenants facing eviction 30
TAP process: Before referral to a volunteer attorney • Application for Assistance – Screened for eligibility by non-lawyer volunteer • Court file pulled and reviewed – Reviewed for defenses that can be identified from the paperwork • Tenant completes questionnaire with basic facts related to reason for eviction 31
TAP process: Before referral to a volunteer attorney • If a potential legal defense is identified, volunteer attorney will meet with tenant • If no legal defenses identified, tenant is referred to Community Mediation Services for assistance mediating a move out agreement or pay and stay agreement if possible. 32
TAP process: Referral to a volunteer attorney Before you meet with the tenant: • TAP attorney will discuss potential defenses with you • Review court file • Review documents provided to us by tenant (Keep them separate, please!) 33
TAP process: Referral to a volunteer attorney Meeting with the Tenant • Client interview – Issues and Defenses – What does the tenant want? • Complete representation agreement – Review limited scope of representation with tenant • Consult with Legal Aid Attorney any time throughout process! 34
Meeting with the Tenant • Challenges you might face: – Tenant overwhelmed, hard to stay focused – Tenant does not have clear understanding of legal defense – Tenant wants to discuss another issue important to the tenant but that will not help prevent eviction – Tenant doesn’t have important documents or evidence with them – Tenant’s desired outcome is unrealistic 35
Options going forward • • Negotiate a settlement for tenant Obtain continuance for tenant Represent tenant at hearing File motions on behalf of tenant • Determine lack of merit: advise and reject, refer to mediation. 36
Considerations when negotiating settlement • Who are you negotiating with? – Attorney? – Pro Se landlord? • How strong is the legal defense? • What does the tenant want to accomplish? – Are these goals realistic? • Short term solutions vs. long term solutions 37
Trying a first cause hearing • Most TAP cases settle, especially if landlord is represented • Legal Aid attorney here to help 38
Top 10 Eviction Defenses Melissa Benson Benjamin Horne Jyoshu Tsushima The Legal Aid Society of Columbus October 13, 2017
Ten Most Common Eviction issues at TAP 1. Business Names and Unauthorized Practice of Law 2. Deficient Notices 3. Offer/Tender of Rent – Landlord Refusal 4. Retaliation 5. Conditions/Landlord not making repairs 6. Rent Escrowed instead of paid to Landlord 7. What Constitutes a Breach of the Lease 8. Unconscionable Fees and Lease Provisions 9. Equity 10. Pattern and Practice of Accepting Late Rent 40
TAP Casefile Review Sheet • When tenant check’s in at TAP, we pull the court file and review it for some common defenses – Unauthorized Practice of Law – Business registration issues – Notice issues – Complaint/exhibit issues 41
TAP Casefile Review Sheet Filed after notice expired? Notice complies with requirements? Grounds match notice? Need copy of lease? UPL? Business registered? 42 P = Actual Human Person F = Fictitious Entity/ Business name R = Registered to do business in Ohio
TAP Casefile Review Sheet 43
Business Names and Unauthorized Practice of Law 44
Fictitious Trade Names • If a landlord is conducting business under a fictitious name that has not been registered with the Secretary of State, the landlord is barred from commencing or maintaining an eviction action 45
Unauthorized Practice of Law • R. C. 4705. 01 prohibits any person who is not an attorney from commencing or maintaining a court action on behalf of another. • UPL is a complete defense to an eviction action. 46
Unauthorized Practice of Law • People who are not the owners of the rental property/parties to the lease cannot commence an eviction action – Property managers proceeding pro se – Family members of owners – Non-attorney trustee filing on behalf of trust • A corporation, partnership, or limited liability company may not file or maintain an eviction action without an attorney 47
Unauthorized Practice of Law • Defect not cured by – Attorney entering appearance and representing at hearing – Amendment of the complaint to substitute attorney signature • Complaint must be dismissed and refiled by attorney 48
Notice Related Defenses 49
Different Types of Notices • Notice to Leave Premises – Always required – jurisdiction issue • Notice Terminating Periodic Tenancy – Month to Month, etc. • Notice to Cure – Tenant not fulfilling obligations re: health and safety 50
Notice Terminating Periodic Tenancy • Applies only to termination of periodic tenancy, such as month to month. • Must be served one full tenancy period before termination of tenancy to be effective. • E. g. if month to month tenancy, and rent is due on the first, and notice is served Feb. 15, would terminate tenancy effective March 31 st, not March 15. R. C. 5321. 17 51
Notice Terminating Periodic Tenancy • If tenant stays past date of termination, landlord must then serve 3 Day Notice to Leave the Premises in order to evict. • 3 day notice cannot be combined with 30 day Notice of Termination of tenancy R. C. 5321. 17 52
Sample Notice Terminating Periodic Tenancy 53
Notice to Cure • If alleged breach of tenancy violates tenant’s statutory duties (R. C. 5321. 05) in a manner that materially affects health and safety, landlord must serve a notice to cure the breach before filing an eviction action. • Landlord must serve this notice even if the alleged breach is also a breach of the written lease. R. C. 5321. 11 54
Notice to Cure • Tenant must be given reasonable opportunity to cure – Not less than 30 days – Notice must advise tenant of deadline to cure breach • If landlord does not serve the tenant with required notice, it is a complete defense to the eviction action R. C. 5321. 11 55
Tenant’s statutory obligations – Keep property sanitary and safe – Do not damage fixtures, plumbing, appliances supplied by landlord, etc. – Not violate health and safety codes – Not commit crimes on property (also applies to guests) – Don’t disturb neighbors – Allow landlord to enter when reasonable notice given R. C. 5321. 05 56
Sample Notice to Cure 57
Notice to Leave the Premises • If landlord does not serve 3 day Notice to Leave Premises pursuant to 1923. 04, the court lacks subject matter jurisdiction • Must be served by: – Giving directly to tenant (personal service), or – Posting to door of residence (residence service), or – Certified mail R. C. 1923. 04 58
Notice to Leave the Premises • Must contain exact required statutory language: “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. ” R. C. 1923. 04 59
Notice to Leave the Premises • Statutory language must be “conspicuous” – i. e. it must stand out in some way, e. g. : -Bigger font -ALL CAPS ********* - Set off with asterisks ********* R. C. 1923. 04 60
Sample Notice to Leave the Premises 61
Landlord Waiver of Notice to Leave the Premises • If a landlord serves the tenant with a NTLP and then takes action that is inconsistent with terminating the tenancy, Ohio courts generally find the landlord has waived the NTLP and dismisses the eviction. – Accepting future rent – Signing new lease 62
Waiver of NTLP • The landlord waives the NTLP if s/he accepts “future” rent after it is served. • Future rent is any rental payment that can only be applied to the period of time after the landlord serves the notice. – E. g. – Tenant served NTLP on February 6 th for failure to pay February rent. Tenant pays one month’s rent on February 8 th and landlord accepts it. Landlord has accepted rent covering the time period after February 6 th, so NTLP is waived. 63
Waiver of NTLP • NTLP is not waived if landlord accepts only back rent after notice is served. – E. g. Tenant is served with a NTLP on February 6 th for failure to pay both January and February rent. Tenant pays one month’s worth of rent on February 8 th and landlord accepts it. Landlord has not waived the NTLP and can still evict, because that rent can be applied to January’s back rent rather than February’s future rent. 64
Waiver of NTLP • I sent the rent money. Was it “accepted”? – Yes, if landlord cashes/deposits check or money order, even if landlord tries to return the money after cashing it. – Yes, if landlord is holding the rent money paid, rather than returning it, unless: • the landlord notifies the tenant that the money is being held but not accepted, or • the landlord returns the money to the tenant prior to court. 65
Waiver of NTLP • Acceptance of “future” rent payments from a third party also qualifies as acceptance of rent. It doesn’t matter that the money came from someone else. 66
Waiver: Month to Month Tenancies • In a month-to-month tenancy, acceptance of a partial rent payment renews the monthly tenancy, even if tendered and accepted after the due date • Landlord waives notice terminating periodic tenancy by accepting future rent after the expiration of the tenancy. 67
Waiver: Tenant Breach of Rental Agreement • When a landlord has knowledge of a breach of the lease by the tenant and does any of the following, they have waived the right to evict for that breach: – Accepts future rent – Executes a new lease – Takes any other action inconsistent with termination of tenancy 68
Remedy of Tenant Conditions Breach • If tenant receives a Notice to Cure under R. C. 5321. 11 and discontinues the alleged offensive behavior, the rental agreement should not be terminated. • Landlord is required to prove that during the 30 days after getting the Notice to Cure, the tenant continued to engage in the behavior noted in the 5321. 11 Notice. 69
Rent Payment Defenses 70
Landlord Refusal of Rent • A landlord can’t refuse timely offered rent and then evict for non-payment. – Includes rent offered during any grace period in the lease • A landlord may refuse timely tender of partial rent and then evict for non-payment. 71
Tender of Rent Excused A tenant cannot be evicted for nonpayment: • If the landlord instructs him or her not to pay until a conditions problem at tenant’s rental premises is fixed. – Proof problem: court won’t buy it unless its in writing from landlord. 72
Tender of Rent Excused A tenant cannot be evicted for non-payment: • If the landlord, through past refusal to accept rent or other conduct, has indicated that rent will be rejected and trying to pay would be useless. 73
Absence of Demand for Rent If the landlord usually goes to the premises to collect rent AND Tenant has not agreed to or been provided means to pay rent another way (e. g. mailing address, drop box, deposit to bank account, etc. ) THEN The landlord cannot refuse to collect rent and then evict for non-payment of rent. 74
Housing Conditions 75
Columbus’ low-income housing stock • The low-income housing stock is in bad shape, and there’s a severe shortage. • Tenants are hesitant to complain for fear of retaliation. • Slumlords: “If you don’t like it, move. ” • If you help get a rental property safe and up to Code, you are making a lasting impact. 76
Housing Conditions If the tenant complains of housing conditions problems, you may be able to make this part of your case, especially if: 1. Code Enforcement has inspected and found violations. 2. The tenant has given written notice to the landlord of the problems. 77
Code Violation Notice 78
Code Violation Notice 79
Housing Conditions The two most typical ways to work this into your case are: 1. File an Answer and Counterclaims under 1923. 061(b). (You will probably need to get a one week continuance) 2. File a 1923. 15 motion to correct conditions or prohibit re-rental. (You can do this the morning of court) 80
Answer and Counterclaims for Conditions - 1923. 061(B) 81
Answer and Counterclaims for Conditions - 1923. 061(B) • 1923. 061(b) defense involves filing an Answer and Counterclaim. • Difficult to get this done the morning of the first hearing. • Tenant should probably get a continuance so Answer and CC can be drafted and filed. If Tenant already got one continuance, it may be too late to use this defense. 82
Answer and Counterclaims for Conditions - 1923. 061(B) 1923. 061(b) should be used when: • Landlord is evicting for unpaid rent. • The tenant has been paying full rent for several months, while living with bad conditions, or has spent his/her own $ on repairs/extermination efforts. • Tenant has code reports or other proof that landlord was notified of the problems. 83
Answer and Counterclaims for Conditions - 1923. 061(B) • The primary counterclaim is usually for retroactive rent abatement. This means the tenant has been overpaying rent for an extended period of time because the reasonable rental value of the property was less than the full rent the tenant was paying. 84
Answer and Counterclaims for Conditions - 1923. 061(B) Other counterclaims: • Actual damages. For example, lost food, money spent on mouse traps. • Emotional distress damages. • Punitive damages 85
Meet Joan… 86
Joan’s rental has conditions problems…. 87
Answer and Counterclaims for Conditions - 1923. 061(B) • For last five months, Joan has paid $800/month rent, but with disconnected kitchen sink and a rodent infestation. • Joan gave written notice of the problems to the landlord five months ago. • Code enforcement documented the problems as well. • Landlord has not remedied the problems. 88
Answer and Counterclaims for Conditions - 1923. 061(B) • Joan can argue that the reasonable rental value was less than $800 for those five months full rent was paid. • Joan can testify that based on her experience as a Columbus renter, the reasonable rental value of her home with the rodents and no sink, was only $500 per month. So every month Tenant was overpaying $300 per month. 89
Answer and Counterclaims for Conditions - 1923. 061(B) • Five months of overpaying by $300 per month totals $1500 overpaid. • Joan also spent $40 on space heater and $35 on mouse traps. These actual damages are additional counterclaims. • Joan can also ask for emotional distress and punitive damages. 90
Answer and Counterclaims for Conditions - 1923. 061(B) • At the hearing, the judge will decide who has a net judgment. • So if Judge finds that Joan owes $800. 00 in unpaid rent, but that the Landlord owes Joan $1800. 00, the net judgment is for Joan in the amount of $1, 000. • Judge would deny the eviction, and enter judgment for Joan for $1, 000. 91
Answer and Counterclaims for Conditions - 1923. 061(B) Question: I prepared a 1923. 061(b) Answer and Counterclaims and filed them and brought them to court, and served a copy on opposing counsel. Will there still be a hearing in front of the magistrate, or will this get automatically reassigned to a judge for a later date? 92
Answer and Counterclaims for Conditions - 1923. 061(B) If 1923. 061(b) Answer and Counterclaims are filed, there will still be a hearing in front of the magistrate, but basically two things will happen: 1. The magistrate will explain that the case will be re-assigned to a judge and rescheduled for a hearing at a later date. 2. Magistrates can (but usually don’t) order that rent that comes due during the pendency of the action be paid into court. 93
Answer and Counterclaims for Conditions - 1923. 061(B) How long until the judge schedules a hearing? • Varies by judge. Could be within a week or two, or could be a month or two. • Some Judges first set case for a pre-trial or a mediation to see if it can get worked out. • Eventually will probably get set for a half-day trial. • High rate of work-outs when these are filed. 94
1923. 15 Motion to Correct Conditions or Prohibit Re-rental FIX IT!! What? ! 95
1923. 15 Motion to Correct Conditions or Prohibit Re-rental • These motions are not a defense to the eviction. • These motions alert the court that the landlord is trying to evict a tenant from a home with unaddressed housing code violations. 96
1923. 15 Motion to Correct Conditions or Prohibit Re-rental 1923. 15 allows court to do three things: 1. Find there are conditions problems and order that the landlord correct them. 2. Find there are conditions problems and order that the property not be re-rented until they are remedied. 3. Order a governmental agency to inspect the premises for problems. 97
1923. 15 Motion to Correct Conditions or Prohibit Rerental Good situations in which to file 1923. 15 motions: • Tenant has Code Violations, or good evidence of conditions problems. • Tenant is too far behind in rent for a 1923. 061(b) counterclaim to save him/her. 98
1923. 15 Motion to Correct Conditions or Prohibit Re-rental EXAMPLE • Tenant has Code Violations with her. • Tenant has been living in the rental unit for three months. Only paid rent once. There is not enough rent paid to rationalize a retroactive rent abatement 1923. 061(b) Answer and Counterclaim. • The 1923. 15 motion won’t be a defense to the eviction, but gives leverage. 99
1923. 15 Motion to Correct Conditions or Prohibit Re-rental • If you file a 1923. 15 Motion, the court will have two matters to deal with: (1) whether or not Tenant should be evicted and (2) what to do about the 1923. 15 motion. • Court can evict tenant but still order an inspection, or that the landlord to correct problems / not re-rent. 100
1923. 15 Motion to Correct Conditions or Prohibit Re-rental How do the magistrates typically deal with a 1923. 15 motion? • The magistrates first decide, “Is there really a conditions problem here? ” • If magistrate is unsure, magistrate may order an inspection. 101
1923. 15 Motion to Correct Conditions or Prohibit Re-rental How do the magistrates typically deal with a 1923. 15 motion? (cont’d) • If there are code reports attached to the motion, magistrates will generally believe there is a problem and will ask landlord how long it will take to fix the problems. • Magistrate will then schedule a compliance hearing, and enter an order prohibiting rerental in the meantime. 102
1923. 15 Motion to Correct Conditions or Prohibit Re-rental Example: • Tenant files 1923. 15 attaching Code order. • Landlord says he can bring property into compliance in 4 weeks. • Magistrate puts on order prohibiting rerental until property is in compliance with Code, and sets a hearing 4 weeks out. 103
1923. 15 Motion to Correct Conditions or Prohibit Re-rental What if Tenant credibly reports that Code Enforcement has been out and issued an Order, and the problems remain, but Tenant left Code Report at home? • Tenant can ask for a one-week continuance, and then file the 1923. 15 motion next week, attaching Report. • Tenant can file 1923. 15 without code report and try to convince magistrate. 104
1923. 15 Motion to Correct Conditions or Prohibit Re-rental How quickly can Code inspect? If I ask for a one week continuance and tell the tenant to call 3 -1 -1 and request an inspection, will there be a Code report by next week? • Usually no. Inspections are usually scheduled within 7 -10 days. • But for an emergency like no heat in the winter, Code may inspect in a day or two. 105
1923. 15 Motion to Correct Conditions or Prohibit Re-rental What if Tenant left Code reports at home, or doesn’t have Code reports, and Tenant already got a continuance? • You can try to file a 1923. 15 motion without code violations attached. • You will need to convince magistrate that conditions problems exist. (cell ph pics) • If magistrate not convinced, suggest an inspection be ordered. 106
1923. 15 Motion to Correct Conditions or Prohibit Re-rental How am I supposed to file a 1923. 15 Motion the same morning as the hearing? • There are fill-in-the-blank 1923. 15 Motions available at TAP. • If you have code reports or other documents showing problems, attach them. 107
1923. 15 Motion to Correct Conditions or Prohibit Re-rental How do I file something the morning of the eviction hearing? • There is someone from the clerk’s office in court at a desk up front next to the bailiffs. That clerk can time-stamp and file documents so you don’t need to go downstairs to the 3 rd floor clerk’s office. 108
Filing in the Courtroom SHE CAN FILE 109
1923. 15 Motion to Correct Conditions or Prohibit Re-rental What are typical landlord arguments regarding the 1923. 15 motion? • There are no problems / I fixed everything. • The tenant created all the problems. • The tenant won’t let me in to make repairs. Just be ready for these arguments. 110
1923. 15 Motion to Correct Conditions or Prohibit Re-rental What if the Tenant wants the landlord to make repairs only at certain times? • Tenants are entitled to 24 -hour notice, and repairs should be done during reasonable hours, but Tenants cannot really dictate beyond that. • It can be helpful to explain tenant schedules to the landlord, and agree on good repair times. 111
1923. 15 Motion to Correct Conditions or Prohibit Re-rental • If further hearings are set on the 1923. 15 motion, and you cannot cover them, let TAP workers know this. LASC Housing Attorneys can cover future hearing if you cannot. • If you keep the case, contact the Code Officer and ask about when reinspection will be done, and to let you know if owner brings property into compliance. 112
1923. 15 Motion to Correct Conditions or Prohibit Re-rental • If owner does not bring property into compliance, we generally ask the Code Officer to come to the compliance hearing. • Code Officers need to show their supervisor a subpoena. There are orange subpoena forms in the clerk’s office on the 3 rd floor. We generally serve the Code Officers by leaving the subpoena for the officer at 757 Carolyn Avenue. 113
1923. 15 Motion to Correct Conditions or Prohibit Re-rental Best practices: • Advise tenant this is not a defense to the eviction, but will ensure that the next family does not have to live with the bad conditions. Ask if it is okay with the tenant to file the motion. • After filing it, advise landlord you have filed the motion. If you are seeking a workout you can offer to drop the motion as leverage. 114
1923. 15 Motion to Correct Conditions or Prohibit Re-rental Best practices (cont’d): • If case gets set for a compliance hearing. . . • Court wants to know if the landlord has brought the property into compliance with City Code. • If Code Officer has told you there is no compliance yet, subpoena code officer. • Tenant is welcome to show up. 115
1923. 15 Motion to Correct Conditions or Prohibit Re-rental Best practices (cont’d) • If Magistrate orders Landlord to bring property into compliance, get in contact with the Code Officer as soon as possible and explain your involvement. • Inquire about the Code Officer’s plans to re-inspect the property. Request updates after inspections. 116
1923. 15 Motion to Correct Conditions or Prohibit Re-rental • Advise Code Officer that if landlord comes into compliance we would like a copy of an Acknowledgement of Compliance Letter to show the court, and if we get that letter we will withdraw the 1923. 15 motion. 117
Acknowledgement of Compliance Letter 118
Rent Escrow • R. C. 5321. 07 -5321. 10 • Tenant deposits rent with the court because landlord is not fulfilling a landlord duty (usually because landlord is not making repairs or exterminating a pest). 119
On 3 RD Floor of 375 S. High Rent Escrow Go here to start rent escrow or if you need escrowed money released. 120
Rent Escrow • Before escrowing rent, Tenant must: 1. Notify the landlord of conditions problems in writing (text, email okay as long as landlord responds/acknowledges receipt). 2. Wait a reasonable amount of time for the landlord to remedy the problem (30 days max, shorter times for emergency issues). 3. Stay current in rent. 121
Escrow and Evictions 122
Escrow and Evictions • If a tenant has properly escrowed rent with the court and the landlord attempts to evict for non-payment, it is a defense to the eviction. • E. g. , Tenant escrowed October rent on October 1 st (the day it was due). Landlord files eviction for non-payment of October rent. Tenant should not be evicted. 123
Escrow and Evictions • Tenants trying escrow on their own often make mistakes – Didn’t give landlord written notice of problems – Didn’t wait a reasonable amount of time after giving written notice – Escrowed late (rent due on 5 th, Tenant escrowed on the 6 th. Tenant was “behind in rent” at time rent escrow was initiated. ) 124
Escrow and Evictions • If a tenant improperly escrowed rent, the Landlord can file a motion to release the escrowed rent under 5321. 09. That motion will be set for a hearing. • Eviction is not the proper response to incorrectly escrowed rent. Whether or not rent was properly escrowed should not be decided at an eviction hearing. 125
Escrow and Evictions • If a tenant improperly escrowed rent, the Landlord should file a 5321. 09 motion to release the escrowed rent. • At the 5321. 09 hearing, the judge might agree to release the rent to the landlord. • If the money is released, the landlord could then try to file an eviction. Courts are split on whether landlord in this situation could evict for late payment of rent. 126
Escrow and Evictions • These cases often work out with the tenant agreeing to move out on a certain date and the parties agreeing to split the escrowed money. • In escrow cases there is no filing fee, but the court keeps 1% of what is escrowed, regardless of who gets the rest. 127
Escrow and Evictions • If you have a case involving escrowed rent and the work out involves releasing money out of the escrow account, include the word “forthwith” in the Entry, to allow the money to be released that same day. • E. g. “The escrowed funds shall be released forthwith, half to the tenant, half to the landlord, subtracting the statutorily required 1%”. 128
Retaliation Get out. 129
Typical Retaliation in Columbus • Tenant, frustrated by lack of response to requests for repairs or extermination, calls Code Enforcement and requests an inspection. • Code inspects, issues violation notice to landlord. • Soon thereafter: Retaliation by Landlord. Goal is to get tenant out of the building prior to re-inspection. 130
Typical Retaliation in Columbus 1. Landlord ends the lease. Landlord delivers 30 -day “no-fault” notice, terminating the month-to-month tenancy 30 days from the next time rent is due, or chooses to not renew an annual lease. If tenant doesn’t vacate after the lease terminates, tenant becomes a “holdover tenant”, and Landlord evicts for this reason. 131
Typical Retaliation in Columbus 2. Landlord fabricates eviction grounds. • Next time rent is due, landlord does not pick it up, then delivers Notice to Vacate for non-payment of rent (and late fees) • Landlord gets rent check in mail but doesn’t cash it, claims he never got it, delivers Notice to Vacate for NPOR. 136
4041 SULLIVANT AVENUE
Ohio Revised Code • Section 5321. 02 is meant to protect a tenant’s right to complain. . . • (1) to a governmental agency about a code violation or • (2) to the landlord about a 5321. 04 violation (usually a failure to make repairs or exterminate a pest). 141
Ohio Revised Code • 5321. 02: Landlord may not retaliate against a tenant by (1) increasing rent (unless to reflect cost of installed improvements or other operational costs), (2) decreasing services, or (3) bringing or threatening to bring an eviction action. 142
Ohio Revised Code does not explicitly prohibit the Landlord from: (1) Terminating a month to month rental agreement (2) Refusing to renew the rental agreement or continue the tenancy 143
Ohio Revised Code 5321. 02: If Landlord retaliates: • Tenant may use the retaliatory action as a defense to an eviction action. • Tenant may recover possession of the premises. • Tenant may terminate the rental agreement • Tenant may sue landlord for actual damages with reasonable attorney fees. 144
Ohio Revised Code 5321. 02: If Landlord retaliates. . . Tenant may use the retaliatory action as a defense to an eviction action. PROBLEM: Landlords fabricate or find legitimate grounds for eviction. EXAMPLES: • Failing to pick up rent, or claiming it was not received, then evicting for NPOR. • Evicting for ticky-tack lease violation, or for issue Landlord did not care about previously. 145
Ohio Revised Code 5321. 02: If Landlord retaliates. . . • Tenant may recover possession of the premises. • (? ) (only makes sense if tenants have already lost possession – e. g. they have been illegally locked out of the property) 146
Ohio Revised Code 5321. 02: If Landlord retaliates. . . • Tenant may terminate the rental agreement. • This is not usually the solution the tenant wants. Tenants just want the problems fixed, not to have to move. 147
Ohio Revised Code 5321. 02: If Landlord retaliates. . . • Tenant may sue landlord for actual damages with reasonable attorney fees. • If you file a 1923. 061(b) Answer and Counterclaim, you can add this claim, and seek attorney fees. 148
Ohio Revised Code What if Tenant complains to Code, but is a day late paying rent. Landlord evicts for NPOR. Can Tenant still claim retaliation? 149
Ohio Revised Code 5321. 03: Exceptions: Landlord may evict (not retaliation) if: • Tenant is behind in rent. • Tenant caused the condition problems • Compliance with Code would require “alteration, remodeling, or demolition of the premises which would effectively deprive the tenant of the use of the dwelling unit” • Tenant is holding over the tenant’s term (lease has expired). 150
Ohio Revised Code Weakness of Ohio Revised Code: • No real penalty for landlords unless there actual damages • Lack of clarity regarding terminating month to month tenancies being retaliation. (Appellate courts are split) 151
Ohio Revised Code Appellate Courts are split: • Some courts have found that terminating a month to month lease in response to a tenant calling Code is retaliatory, and will dismiss the eviction. • Other courts have found the opposite - that the tenant cannot argue retaliation because the tenant has become a “Holdover tenant” – a retaliation exception. 152
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Tenant attorney strategies • Retaliation statute does little to deter retaliation. • If you have a case where Tenant was evicted in retaliation, Tenant attorneys need to keep the case alive until there is compliance with Code. • LASC can file nuisance abatement actions even after tenant moves out. 154
Lease Provision Defenses 160
Non-Material Breach of Lease • A lease is a contract. • Common law contract rules state a party has not breached the contract if they are in substantial compliance • A landlord may only evict a tenant if the breach is material. 161
Unconscionable Lease Provision • Unconscionable lease provisions are unenforceable • If a landlord attempts to evict for violation of a lease provision that is unconscionable, it is a complete defense to the eviction action • E. g. lease provision requiring registration and management approval of all guests 162
Lease Provision Defenses 163
Prohibited Lease Terms • Any agreement waiving or modifying the landlord’s duties as an Ohio landlord. • Any agreement that the tenant will hold the landlord harmless if the landlord violates the law. • Any agreement that the tenant pay the landlord’s attorney fees or confess judgement if landlord files eviction. • Lease can transfer tenant’s duties to landlord O. R. C. 5321. 01 164
Prohibited Lease Terms • “Unconscionable” lease terms • General prohibition against grossly unfair lease terms. • Court is usually arbiter of whether a term is unconscionable • Example: Every overnight guest that tenant has must be approved by landlord in advance. O. R. C. 5321. 14 165
Prohibited Lease Terms • If a prohibited term is included in a lease, it is stricken and unenforceable. • The rest of the lease is still enforceable. 166
Prohibited Landlord Actions • Cannot try to remove a tenant through any process other than the eviction process – Cannot lock tenant out – Cannot turn off any utility • Cannot seize tenant’s property in order to recover missed rent • Remedies for tenant: damages, attorneys fees, restraining order from court O. R. C. 5321. 15 167
Equity 168
Equity • Equity abhors a forfeiture • When a party raises an equitable defense, the court must weigh the equitable considerations before imposing forfeiture 169
Equity • A tenant’s payment of unpaid rent at time of trial may enable tenant to succeed on equitable grounds • Must make landlord whole to argue equity. Tenant would likely have to offer rent, appropriate late fees, attorney fees and court costs. 170
Pattern and Practice 171
Course of Conduct: Accepting Late Rent Payments • Landlords are generally not obligated to accept late rent. • But, if a landlord repeatedly accepts late rent, doing so can establish a “pattern and practice” of accepting late rent. • This pattern and practice can waive a tenant’s obligation to pay on time and establish a new due date for rental payments. 172
Course of Conduct: Accepting Late Rent Payments • If a landlord’s acceptance of late rent establishes a new due date, the landlord cannot refuse to accept late rent without prior notice to the tenant that he or she will no longer accept rent past the due date – Notice must be in writing – Notice must be given with reasonable amount of time for tenant to comply (usually one rental period). 173
Course of Conduct: Accepting Late Rent Payments • If landlord rejects rent paid within the newly established pattern and practice due date because the rent is late and has not given prior notice that late rent will no longer be accepted, it is a defense to the eviction. • E. g. – Rent is due on the 1 st. Landlord has always accepted rent from the tenant on the 10 th. Tenant tries to pay rent on 10 th and landlord refuses to take it, then tries to evict for non-payment. 174
Practical Tips for TAP Attorneys Jyoshu Tsushima The Legal Aid Society of Columbus October 13, 2017
Practically speaking…. 176
Meeting with client • Review facts/issues • Clearly explain scope of representation – Tenants often don’t know that possession and money claims are heard separately. • Complete appropriate representation paperwork with client and LASC 177
Dealing with Difficult Clients • Not your typical corporate client • The legal defense and what tenant is upset about may be two very different things – Difficult to focus on issues – Difficult to get answers to important questions • Low income tenants balancing other concerns – – Health issues Education for kids Lost job/lost income Lack of transportation 178
Legal Services Only • Many tenants need relatively small amounts of money to settle a case with a landlord • We CANNOT offer to pay these things for tenants, this is an ethical violation • You can help the tenant connect with nonprofits that will help pay 179
Legal issues and defenses • LASC can/will assist in identifying legal issues and arguments • Copies of relevant statutes/cases helpful both in trying cases and negotiating settlement • We can help – TAP table – Call/email LASC housing attorneys 180
At court before the hearing • Check in with the bailiff when you arrive • Complete Notice of Appearance – Available at bailiff’s desk and TAP table – If limited appearance (continuance, first cause only, etc. ), make sure to note that on notice 181
Opposing Counsel • If Plaintiff is represented, always talk to opposing counsel before hearing. – Settlement options (generally OC willing to discuss settlement) – Defenses and legal issues – can affect settlement • Magistrates will ask if you have spoken with counsel • Occasionally OC gets impatient and tries to talk to tenant without you. Try not to let this happen. 182
Pro Se Landlords • If Plaintiff is pro se, negotiations can be more complicated – If goal is settlement, always talk to pro se Plaintiff – Pro se Plaintiffs may not understand legal issues or defenses. – Mediation can be helpful in talking to pro se landlords from time to time 183
Settle the case? • Many eviction cases with represented parties settle without hearing • Discuss basic settlement options with client as a part of client interview – Pay and stay – Agreed move out • What does client want? • What can client reasonably do? 184
Settle the case? • Review defenses to case – How strong are defenses? – Likelihood of decision in Defendant’s favor? • Would a dismissal based on that issue completely resolve issue? – E. g. - Tenant has receipts proving paid all rent owed • Would dismissal based on defense allow for refiling? – E. g. - NTLP no good, but factual issues remain 185
Settlement Negotiations • Some people expect animosity between their attorney and opposing counsel, even if this isn’t the best way to get a settlement • Many low income tenants have never had an attorney advocating for them in court before • Negotiating settlement with counsel away from tenant can be beneficial if tenant is concerned you are “on landlord’s side” 186
Settlement agreement • If settlement is reached, can write entry at court • Considerations for agreed entry: – If settlement terms aren’t met, what happens? • Automatic judgment and writ? • New hearing date? – Ensuring dismissal of first cause if terms are met – Answer deadline and second cause addressed? • Best practice: client signs entry 187
Settlement agreement • Complicated entry or short on time? • Complete “green sheet” from bailiff’s table indicated the case is settled an entry will follow. – Establish timeline for submitting entry – Who will draft entry? – How review and edit with OC/OP? – Review final entry with client and get approval before submitting to court 188
Written motions • With the exception of a 1923. 061 answer and counterclaim, motions, etc. do not have to be filed before the hearing and can be made orally if you chose. • If you do file a written motion before the hearing, bring at least 2 extra file stamped copies to hearing – Copy for magistrate in case it isn’t in the file – Copy for opposing counsel/party in case did not receive service copy 189
Hearing • Enter oral appearance upon case being called • Advise magistrate of any preliminary issues you will be raising – Motion to Dismiss – Legal defenses you plan to raise – If calling multiple witnesses aside from parties 190
Hearing • Magistrate will generally conduct contested hearings when case is called • Hearings generally do not last very long, even when contested • If Magistrate thinks hearing will take extended period of time, he or she may recall the case at the end of the docket or (rarely) schedule the hearing for another day or with another magistrate that morning 191
After the evidence is presented • If there are outstanding issues of law, you offer to brief any legal issues for the court as appropriate. – Hearing continued – Rare • Magistrates almost always issue decision from bench • Can orally request findings of fact and conclusions of law 192
Quick Tips for Tenants • Get receipts for everything paid • Get all agreements outside lease in writing – Work for rent – Rental compensation/reduction • Keep notes of conversations with landlord, including dates and topics 193
“Access to justice should be an everpresent goal. ” – Maureen O’Connor Ohio Supreme Court Chief Justice Jyoshu Tsushima Benjamin Horne Melissa Benson Dianna Howie The Legal Aid Society of Columbus Magistrate Tony Paat Franklin County Municipal Court
- Slides: 194
