Retaliatory Evictions in Ohio

Conflicts often arise between landlords and tenants. In the ideal world, these conflicts would be limited to disputes about the obligations of each party to the other. But in the real world, personality conflicts between landlords and tenants can turn legal, with decisions to renew leases and even eviction actions being brought against a tenant for personal reasons.

There is an unfortunate tendency among rental managers to become a bit heady with the power that they can have over a tenant. While there is no excuse for a rental manager to make business choices based upon non-business reasons, it happens. While there is no law against terminating a month to month tenancy or not renewing a year’s lease because a tenant was rude to you, the law does provide for certain protections for tenants that a wise landlord needs to know about.

It’s only natural to get a bit up in arms when tenants complain about things, especially when the things they are complaining about are silly, inconsequential, or not anything promised in the lease agreement. It’s especially easy to become annoyed with the manner that certain tenants communicate these complaints to you. These people are not necessarily skilled in marketing, mediation, or even polite conversation.

Ohio Revised Code Section 5321.02(A) states that a landlord may not retaliate against a tenant by increasing the tenant’s rent, decreasing services that are due to the tenant, or bringing or threatening to bring an action for possession of the tenant’s premises because: (1) The tenant has complained to an appropriate governmental agency of a violation of a building, housing, health, or safety code that is applicable to the premises, and the violation materially affects health and safety; (2) The tenant has complained to the landlord of any violation of section 5321.04 of the Revised Code; or (3) The tenant joined with other tenants for the purpose of negotiating or dealing collectively with the landlord on any of the terms and conditions of a rental agreement.

In looking at this rule, the first thing that we need to note is that it’s not just the bringing of an eviction action in response to protected conduct which is prohibited. The landlord must also not increase rent, decrease services, or threaten an eviction in retaliation for the tenant’s protected activities. So you have to proceed as you normally would have proceeded had there not been a dispute with the tenant.

The tenant can use Ohio Revised Code Section 5321.02(B) in three ways. Firstly, the tenant can use the statute as a defense to an eviction action you bring against him. If he can convince the judge that the only reason that you are evicting him is because he complained about the place to the housing inspector, then the Judge will dismiss the eviction action. The tenant can also use the statute to recover possession of the premises if he has been thrown out for his protected activity, and, the tenant can use the landlord’s conduct to declare the lease and all its obligations terminated, and move out.

If the tenant is successful in convincing the judge that the landlord or his rental managers have engaged in prohibited conduct under Ohio Revised Code Section 5321.02, the tenant can recover his actual damages (if any) and attorneys fees. But to recover attorneys fees, the tenant must show actual damages. Cuyahoga Metro. Housing Auth. v. Watkins (1984), 23 Ohio App.3d 20. The burden of proof is on the tenant in these cases to show the landlord’s improper motive in taking the action.

How can a landlord or his agents protect himself against charges that he has acted in violation of this statute? The first line of defense is education. If you employ rental managers, you need to check on whether they know about this statute and its requirements. If you find gaps in the knowledge of your rental managers, you need to train them. I come across landlords and rental manager all the time who don’t know what they can and can’t do as landlords, and these people often end up losing a lot of money in real estate.

The second line of defense is documentation. The landlord’s alleged motivations in taking an action can be proven or disproven by direct evidence (rarely the case) or circumstantial evidence (more commonly the case). Blue v. Castlerock Props. (1996), 77 Ohio Misc.2d 1. Documentation is a type of circumstantial evidence. You and your people must have a system for keeping good documents reflecting everything that is going on around the apartment. When you write letters or send emails to tenants, you need to keep copies. If you have an oral conversation with a tenant, whether on the phone or in person, you need to make a note of it, reflecting the time and date it occurred, and the contents of the conversation. That way if there is some dispute about what was said, you can whip out your records and speak authoritatively about what went on.

Having good documentation has another benefit as well. It makes your rental managers understand that they and you will be held accountable for their actions. It reminds them constantly that they need to treat all of the tenants the same way, both the ones that they like and the ones that they don’t.

What wins in court is a combination of oral testimony and written documents to back it up. If a tenant argues at an eviction hearing that he is being tossed out because he complained about the common areas not being cleaned up by the landlord’s people, and you can produce a file showing all of your communications with that fellow, and that none of them related to the common areas, you are going to enjoy a lot more credibility than the tenant who cannot produce such documents.

The third line of defense is to think about each eviction you are going to file. Check your documents to see if that tenant has recently complained about anything. If he or she has, is this driving the decision to file the eviction? Will you be prepared to successfully argue to the court that there are permissible grounds for the eviction? Speak to the rental manager who wants to take the eviction action, and try to get a sense of his or her motivations.

When a tenant alleges a violation of Ohio Revised Code Section 5321.02, courts in Ohio consider certain factors in coming to their legal conclusions. One of the most important considerations is temporal proximity, that is, how close in time the landlord’s actions allegedly in violation of Ohio Revised Code Section 5321.02 were when compared to the tenant’s protected activity. But while temporal proximity is important, it is not decisive. No presumption of a violation arises just because the landlord tries to evict a tenant shortly after the tenant complained. Karas v. Floyd (1981), 2 Ohio App. 3d 4.

Ohio Revised Code Section 5321.02 does not protect a tenant whose against a landlord who does not care to renew the lease agreement at the end of the term. In the case of Associated Estates Realty Company v. Samsa, 2004 Ohio App. LEXIS 6098 (December 9, 2004) Cuyahoga Co. App. No. 84297, unreported, a tenant in an eviction hearing argued to the judge that the court should consider his argument that the landlord was evicting him because he complained about conditions around the premises. But the court held since the tenant was a holdover tenant, he was not entitled to the protections of the act. The court reasoned that nothing in R.C. 5321.02 precludes the non-renewal of a lease upon the expiration of a term of tenancy.

So the wise landlord will educate his rental managers regarding the law against retaliatory evictions, will keep good documentation of events as they occur, and will think carefully about every contemplated eviction to screen it for possible violations of Ohio Revised Code 5321.02.