State Specific Question About: OHIO (OH)

I have tenants in my rental. They are breaking the rules of the building, and several provisions of the lease. From late night noises,trash bags, laundry etc, handing on banisters in hallways, blocking egress to apartment with their trash,basically making it look like a ghetto, when it not. Just lots of stuff like that. But, most importantly, they have a vicious dog. Lease allows registered dogs, unless dog becomes a nuisance, or dangerous, and therefore must be removed from the premises, at landlord's written request.

Lease has clause about keeping animals under control, noise control regarding excessive barking, vicious or threatening behavior.

Tenant refuses to remove the dog. Tenant loves to text, won't do anything in writing. Anyway via various text, tenant states can't part with the dog and will continue to have the dog, when she got notice to remove the vicious dog, that she's getting a laywer and moving out. She had till yesterday, to remove the dog. Which she hasn't.

Today tenant has stated that she will pay rent once she receives a 30 day notice to terminate the lease.

Another text informed me that she and her sister and the 2 dogs (one is well behaved), will remain on the property until the end of the lease, unless I am giving them a 30 day notice.

I believe they want out of the lease, but don't want to break it, by moving out on their own accord, so they don't owe the rest of the lease.

By the way, their lease isn't up till next September. Staying till then with the dog, is not an option. The dog, lunges at people, growling and bearing its teeth, as if its ready to bite. They can barely control it. Its backed me into a corner 2x's as it pulled away from them. It behaves like this every time it sees me.

My older tenant is scared of the dog, and of it attacking her tiny little older dog. She has several times had to scoop up her dog for protection, and rush away, as the tenant and her vicious dog comes rushing up. She and everyone else has to hide from the dog, when the dog is approaching, or in the hallways. Thus, its very appropriate to require the dog to be removed.

This dog will also make it hard to rent out the other apartment we are renovating and will be soon available, as it barks constantly, when tenant is absent.

I know I can give her 30 day notice to vacate. Question is, will they be liable for the end of the lease if I evict? I was going to give the notice anyway, before they demanded, but, recovering from the flu, my head was too foggy to think clearly earlier in the week to type up the eviction notice coherently.

Since they violated the lease, and intend on continuing to violate the lease, would they still be liable for the rest of the lease, if I am the one terminating it, because of their violations?

Are they liable just until the unit is filled?

I'll need to know so I know I can withhold deposit for this, after cost of cleaning, and putting unit in good repair.

(I also suspect dogs have been urinating on carpet. Its been reported by tenant under them that after they get home most days, they are vaccuuming and shampooing daily.For girls who show dirty cars, throwing trash on the ground regularly when they walk through property, and in laundry room,and the condition of their egress outside the door, I doubt its due to good normal cleaning habits.)

Their lease: "Yearly rent shall be $xxxxx for the 12 months term of service, which, for the convenience of the Tenant, may be paid and received in monthly installments of $665 per month, in advance, on or before the 1st day of each month, regardless of whether payment is made by ordinary U.S. mail or by other means of delivery. Payment may be made in cash, check, money order, or bank draft. Unless permitted by law, Tenant is not permitted to make deductions from rental payments for any reason.

At the option of the landlord, any breach in this lease shall cancel/accelerate the monthly installment payment schedule noted above and all money shall be immediately due and payable."

A lawyer wrote this clause on my behalf last summer. I tried to reach him to ask this question, but no answer back. I tried to reach him before the holidays. emailed him, still nothing.

I'm assuming I can ask for the rest of the lease? would I do that in the eviction letter, or a separate notice.

how would any of you phrase first the 30 day notice for violations of the lease.

secondly, how would you phrase the request for the entirety of the rent in acceleration?

Pros I would really appreciate your advice. Thank you in advance!

I know,but he's not answering his phone, or emails. I only used him for a case last summer. And he suggested for a fee rewriting my lease. He isn't answering calls or emails. Perhaps its due to the holidays. He might even be out of the country for the holidays he's from overseas originally.

so, trying to figure how to handle since he's not responding. I figure I have to give them 30 days by end of today, to get out before next month, else it'll be march something before gone. old lady is ready to break her lease due to the dog and fear of attack.

I don't know anything about OH. If this case were in CA, I could answer it definitively, because CA has updated its law on lease termination to conform to modern contract law instead of medieval property law. I don't know about OH.

First, if tenant has a lease for more than 30 days remaining, I don't see how you can give a 30 day notice to vacate. Your clause, even if it were valid, doesn't say anything about termination of the tenancy. And generally, if YOU want to unilaterally terminate a lease because of what you say is violation of lease terms, that can only be done by bringing a lawsuit and getting a judge to declare the lease forfeit.

I am not surprised that your lawyer who wrote your clause does not call you back. I don't know anything about OH or about this lawyer, but I would be very dubious that such a clause would be valid. But in any case, it doesn't seem to say anything about termination of the lease.

Generally, too, under property law, I previously posted the following copied from a law professor's essay: "In common law theory, however, the lessee's obligation to pay rent is inseparable from his leasehold interest in the property. Accordingly, termination of the lease in this manner terminates the remaining rental obligation. " So I would suggest that your lawyer's sale to you of a lease clause should be examined to see if he guarantees it to be valid.

In CA, the conversion of the law to modern contract principles, answers your question, and in the affirmative. The landlord is entitled to damages from loss of future rent. But in conclusion, my guess is that OH law, unless it has been changed away from property Law principles, would not permit damages from loss of future rent.

SEE "Breaking Lease" Moshe[CA] Dec 21, 2015 8:53 PM

While many jurisdictions are not in favor of a accelerated rent clause when discussing residential lease, since usually the LL duty to mitigate is precedent

it would also appear with a quick search Google Scholar there is case law on tenant liability after serving 3 day notice

89 Ohio St.3d 417 (2000)

DENNIS ET AL., APPELLANTS,

v.

MORGAN, APPELLEE.

No. 99-1545.

Supreme Court of Ohio.

Submitted February 23, 2000.

Decided August 9, 2000.

Seems like you want it both ways, them out and rent fir the remainder of the lease... pick one. And i know what i would pick, certainly give them 30 days to cure. And copy and paste directly from the lease what the violations are and date to cure ,the date you will by to check.. and directly from the lease what wil follow if they don't cure, follow thru

Everything in writting. Also tell them how to communicate with you, not what not to do (no texting) but what TO do, written only via mail. Write the notice and sleep on it, reread in the morning, make any corrections, the post on their door and mail too.

am I required to give 30 days notice to cure? They've already received notice of violations. If I give them 30 days to cure, won't s. I was thinking I could give 30 days, and they be out?

I think they want out, so violating is way of getting me to make them leave, verses them leaving and breaching so they aren't liable.

regardless they need out. I'll find a new tenant, once they're gone.

Susan,

Wanna be right or rich?

It is in your best interest to get them out. Do not worry about re-renting or heat or anything other than gaining back control of your building. This is just the beginning of problems with these folks. If you let them stay things will get worse and meanwhile your good folks will leave, creating MORE vacants.

(gentle reminder: the IN-HOME INSPECTION before final approval would have spotted this problem before you allowed it to become yours. You just got a painful and possibly expensive lesson - learn from it.)

Stay in control. You've lost control of this situation. Time to give them a deadline.

A written notice will not change their behavior.

This is easy. Don't make it any harder and PattyK is right.

It's time for the Happy Clause.

Do not break laws, but MOST problems can be solved by talking/texting to the resident. EVERYTHING is negotiable.

'Joe, It's obvious you are not happy here. I will end your lease if you move out by Sunday, Jan 10, and not damage the home. This offer expires Jan 10. Pls reply.'

Don't mention or worry about cleaning because they will not clean. People hate to clean and will resist your offer if it requires cleaning.

You don't need an atty for the Happy Clause.

BRAD

In the interests of legal ambiguity.

Susan, I like Brad's idea but if you don't feel comfortable trying that route or feel you need a lawyer don't feel like you have to stick with a lawyer jst because you've used him in the past.

It seems that Phil[NY] is correct.

The following article is written more clearly than the cited case of Dennis v. Morgan, discussing this situation in Ohio, Kentucky and Indiana:

Tenant Liability for Post-Eviction Rent

June 6, 2014 in Articles, Landlord Tenant Law by Randy Slovin

Following an eviction, a major source of dispute between landlords and former tenants is whether the evicted tenant must continue to pay rent on the premises, even though they no longer have a right to occupy them. As with most issues governed by state law, the outcome of a lawsuit for post-eviction rent varies by jurisdiction. In particular, Ohio, Kentucky, and Indiana all allow for the recovery of post-eviction rent in at least some circumstances.

Lawsuits for failure to pay rent post-eviction are based on a breach of contract. Unlike tort law, where the goal of damages is to place the victim back in the position they were in prior to the tort, the role of damages resulting from a breach of contract is to place the non-breaching party in the position they would be in if the contract had been fully performed. It is under this basis that courts may permit post-eviction rent, allowing landlords to collect rent for the remainder of the lease term for which they contracted. Other jurisdictions however view an eviction as a choice-of-remedy whereby the landlords may achieve immediate repossession of the property and sue for accrued rent but only by forfeiting the right to continue collecting rent.

Ohio and Kentucky permit landlords to recover rental payments for the remainder of the lease after the eviction of a tenant in most situations. In these states, the filing of an eviction notice terminates the tenant’s right to possession but does not terminate the lease itself or the other obligations of the parties. The apparent inequity, of requiring the evicted tenant to continue paying for the property while being denied its use, is permitted because it is the result of the tenant’s own breach of the lease. Nohr v. Hall’s Rentals, LLC, 2013 WL 462004 (Ky. App. Feb. 8, 2013). Imposing post-eviction rent also prevents tenants from refusing payment in order to exit a lease early. As landlords are entitled to receive rents for the entire contracted lease term, Ohio courts have noted landlords shouldn’t have to choose between eviction and collecting rent on the remainder of the lease. Dennis v. Morgan, 89 Ohio St.3d 417 (2000). In these states, rent continues to accrue after eviction until the end of the lease term or until the premises have been leased to a new tenant.

Indiana, by default, does not permit landlords to collect post-eviction rent. Indiana courts view the filing of an eviction as complete termination of the lease and ends the further accrual of rent. As quoted by the Indiana Court of Appeals, “it is a general rule that a tenant will be relieved of any obligation to pay further rent if the landlord deprives the tenant of possession and beneficial use and enjoyment of any part of the demised premises by an actual eviction.” Gigax v. Boone Village Ltd. Partnership, 656 N.E.2d 854, 858 (1995). Indiana does, however, allow for post-eviction rent to accrue if a savings clause is included in the lease. To be effective, the clause must be unambiguous and expressly state that liability for rent continues after an eviction. Landlords in Indiana should be careful to include such clauses in their lease agreements and ensure they are explicit to ensure the collectability of post-eviction rent.

A limitation in all three states to collecting post-eviction rent is the need for the landlord to attempt to mitigate its damages. Based in contract law, this requirement prevents landlords from receiving a windfall in rent from a tenantless property. Once the tenant has been evicted, the landlord must make a reasonable effort to lease the property to a new tenant. The obligation of the evicted tenant to continue paying rent is then reduced by the amount of rent paid by the new tenant during the remainder of the lease term. Failure to make a reasonable effort to lease the property can result in a forfeiture of some or all post-eviction rent. In Stumph Road Properties Co. v. Suchevits, the court found that an apartment complex did not take sufficient steps to re-lease an apartment and awarded damages for two months rather than the twelve months the apartment was vacant. Ohio 8th Dist. No. 86513, 2005 WL 2812751 (Oct. 27, 2005).

Courts examine the landlord’s efforts to lease the property in comparison to the efforts of a reasonably prudent person in determining if damages have been mitigated. Though it isn’t dispositive, whether a new tenant was found and the time taken to secure the new lease is a major factor. Courts also look to the amount of advertising, discussions with prospective tenants, placement with a realtor, placement of signs, and any other action taken to lease the property in determining whether mitigation occurred. Even with efforts to re-lease, an extended vacancy may not be considered reasonable by the court; the Ohio Supreme Court indicated a seven month vacancy “strains the limits of reasonableness.” Dennis v. Morgan, 89 Ohio St.3d 417, 420 (2000).

Landlords in Ohio, Kentucky, and Indiana can therefore generally expect to continue receiving rent after evicting a tenant so long as their leases, particularly in Indiana, are properly drafted and there are reasonable efforts made to lease the property.

Thank you everyone!

They just signed a happy clause to leave on their own, after realizing that if they didn't, I also had their eviction notice, which would require them to continue to owe for the rest of the lease, which is till Sept. 2016.

The lady underneith them, says she thinks someone else is living in there, has been for at least a month.

Great idea the happy clause, thankyou.

they at first tried the we aren't wanting to pay rent, for January, and suggested I take it out of deposit and pet fee.They want the rent money they should have to pay for next month rent elsewhwere.

I said nope, doesn't work that way, they can't stay and not pay rent.

In the end they signed the happy clause.

Also good to know the law of this issue in our state, I may need it for next time.

They wanted out they confessed, after sighing, but didn't want to owe on the lease. Momma and they talked on the phone while I wrote up their receipt for their rent, advising them.

still trying to push their luck...

They asked if I'd sign some form at the end of January when they move out momma wants to draw up. I said no, I have my own exit forms, and inspection forms, it doesn't work that way.

If they didn't sign happy clause, I had already typed up their eviction notice, and had it in my folder with me at meeting.

I collected rent, before I signed my side of the happy clause. No rent, no happy clause.

Give them the termination notice right away and get them out as son as possible. If you leave that dog there and it hurts someone, the court costs will be much higher than any rent you will lose through eviction.

Give them the notice as soon as possible unless you are stupid and crazy.

No amount of money would make me care more about money than safety in this case.

Do you remember the woman who was ripped up by a Cane Corso in California a couple years ago and no one could stop the attack? It doesn't take much. Do you want to see that old lady and her dog dead and be a news item?

Call animal control while you are at it and get on their records that you reported a vicious dog.

Ally,

Really? calling someone asking for genuine help, and thanking everyone for their help...NAMES? stupid or crazy? how professional is that? what kind of impression are you giving others about this forum, or you?

....and you didn't bother to read far enough down, that she took Brad's advice and got them to agree to move out with a Happy Clause, preventing more drama, and possible expensive eviction and litigation.

..and happy exiting tenants...generally, leave less damage, than those evicted, and angry at the eviction. Sure they'll be damage from the dogs, and neglect of the unit, but far less if they are leaving without forcibly being removed.

Think she wasn't stupid or crazy, she was in over her head, and did the right thing, tried to reach the lawyer, and when he didn't respond, she asked the pros here for advice, and actually took it.

DON'T BE SO HARD ON OTHER PEOPLE! When you were stuck or stressed, did people call you those things on here? or were they for the most part supportive?

and.. not everyone knows all the stories that you know. Obviously she was aware of the dog being a problem, she told them to remove it.