Ohio Landlord/Tenant Legal Updates

Tenant/Landlord Considerations: Waiver, Holdover Rent, and Late Fees

by Andrew Esposito on 02/25/13

Recently, I had a client consult that brought up some questions that I do not hear frequently, but strike me as very common.

If a tenant pays "X" amount per month for a period of years as a holdover tenant, but the lease expressly states that the tenant should have been paying "Y," is the landlord entitled to the difference when the landlord/tenant relationship ends?
Similarly, if the landlord is entitled to late fees pursuant to the terms of the lease for late rental payments, but continues to collect rent without assessing the tenant late charges, has the landlord waived the ability to collect the late fees at a later date?

The landlord/tenant relationship is a delicate one. As a result, landlords can be hesitant to enforce lease provisions for late fees and holdover rent increases. So long as the tenant is paying relatively regularly, most landlords will ignore these clauses. The age old adage comes to mind: don't step over a dollar to pick up a dime.This saying holds true, but it is important for landlords and tenants to know the future ramifications of their past actions.

It is well settled Ohio law that waiver is a voluntary relinquishment of a known right. Waiver of a contract provision may be express or implied. As a result, a lessor can waive the right to collect late fees when it continues to accept late rental payments without objection. In the same vein, a lessor can waive the right to collect holdover rent when it continues to accept the original rental amount after expiration of the lease.

That being said, every landlord should evaluate their own situation before being a stickler about nominal fees. Again, don't step over a dollar to pick up a dime. More importantly, however, landlords may be tempted to deduct these late fees from a tenants security deposit upon termination of the landlord/tenant relationship. If a court determines that waiver has occurred, any amount not returned to the tenant will likely be deemed wrongfully withheld, and accordingly, the landlord would be liable for double damages and attorney fees.

On the other side of the coin, tenants should examine the itemized list of deductions that their landlord provides them. Not every deduction is permissible, and if a tenant feels that there has been anything wrongfully withheld they should consult with a landlord/tenant attorney for a evaluation of the deductions.

If you would like to learn more about landlord/tenant law or if you have any questions regarding your landlord/tenant relationships, please contact Andrew A. Esposito.

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Residential Security Deposits

by Andrew Esposito on 02/16/13

he Ohio Revised Code provides specific steps that must be taken by landlords and tenants regarding collection and return of security deposit. This guide will outline those steps.

1

Definitions

The term "security deposit" is defined in O.R.C. 5321.01(E) as "any deposit of money or property to secure performance by the tenant under a rental agreement."

2

Amount

There is no section on the Ohio Revised Code that limits the amount a landlord can charge as a security deposit; however, if the security deposit exceeds a certain amount a tenant may be entitled to interest upon return of his or/her deposit. Specifically, O.R.C. 5321.16(A) states "[a]ny security deposit in excess of fifty dollars or one month’s periodic rent, whichever is greater, shall bear interest on the excess at the rate of five per cent per annum if the tenant remains in possession of the premises for six months or more, and shall be computed and paid annually by the landlord to the tenant."

3

Tenant and Landlord Requirements

A tenant must "provide the landlord in writing with a forwarding address or new address to which the written notice and amount due from the landlord may be sent. If the tenant fails to provide the landlord with the forwarding or new address as required, the tenant shall not be entitled to damages or attorneys fees...." O.R.C. 5321.16(B). If a tenant provides a forwarding address then they have complied with the statutory requirments and now the burden shifts to the landlord to either: (1) return the full deposit, (2) return a partial deposit and an itemized list of all of the damages repaired and the correlating amounts reduced from the security deposit or; (3) retain the full deposit if the damages to the rental equal or exceed the security deposit and provide a itemized of the damages. The landlord must mail the return and itemized list of damages within 30 days of receiving the forwarding address from the tenant.

4

Attorneys Fees

If the landlord fails to comply with aforementioned Ohio Revised Code sections, the tenant may recover the property and money due him, together with damages in an amount equal to the amount wrongfully withheld, and reasonable attorneys fees. Reading between the lines, this means that tenants are entitled to recover double damages under the Ohio revised code, plus attorneys fees.

Additional Resources

For more information visit the Ohio Revised Code at: http://codes.ohio.gov/orc/5321

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