Landlord not (Legally) Responsible for “Verbally Hostile Housing Environment" (caused by its tenant) in Ohio

If a landlord fails to provide heat in the winter, fails to supply running water, fails to abide by building codes, or fails to make repairs such that a leased residential property is not in habitable condition, that landlord has violated the Ohio Landlord-Tenant Law (Ohio Revised Code Chapter 5321).

What if the Landlord, however, literally fails to provide “Quiet Enjoyment” to one Tenant, as a result of the acts of another tenant?

Recently, the Ohio Supreme Court ruled (in Ohio Civil Rights Commission. v. Akron Metro Housing Authority [OCRM v. AMHA], 2008 Ohio LEXIS 1770) that a landlord does not have to serve as a referee and separate two feuding tenants, even if one neighbor has accused the other of spewing racial insults. The ‘Quiet Enjoyment’ covenant a landlord gives to a tenant typically protects the tenant from interference from its possessory rights, not a guarantee of respectful behavior from other tenants.

The OCRM v. AMHA case centered on two families who lived in the same public housing apartment building, just two doors apart. Both tenants began feuding in August 2001, when the Kaisks (the family that was the subject of the abuse) moved in. Both sides admitted taking part in shouting matches. Both reported problems to the landlord and to police. The Kaisks eventually asked to move to another housing complex, which the Landlord granted, but the lawsuit covered the time period when the Kaisks were subject to the verbal abuse.

The Plaintiff in OCRM v. AMHA argued that the same civil rights protections that guard against hostile work environments should apply in residential landlord-tenant situations, especially since the lease agreement allowed the Landlord to evict a tenant who disturbs another's "peaceful enjoyment."

The Landlord argued that a landlord-tenant relationship is not the same as that of an employer and employee since a landlord is not responsible for its tenant’s tortuous actions, while an employer is liable for the acts of its employees (if the acts are within the “scope of employment”). Furthermore, the Landlord argued that landlords can't violate free speech and other rights of tenants by evicting them on account of the language they use, even if the lease purports to give them that authority.

The Ohio Supreme Court, in a unanimous decision (that overruled the previous Ninth District Court of Appeals) agreed with the Landlord, reasoning that the amount of control that a landlord exercises over its tenant is not comparable to that which an employer exercises over its employee. Because a landlord has less control of its tenant than an employer has of its employee, the Court held that a landlord is not responsible to third persons for such wrongdoings of its tenant.

The OCRM v. AMHA case falls in line with longstanding Ohio law providing, with limited exceptions (e.g. lease language/contract obligations; and limited duty re: common areas), that a landlord has no duty to provide its tenants protection against criminal acts, even if the alleged perpetrator is another tenant. Landlords are limited in the actions they may take against tenants allegedly engaged in illegal (as well as tortuous) activities. The Ohio Supreme Court in State Ex Rel. Pizza v. Rezcallah, 1998 Ohio LEXIS 3258, explained that landlords have no duty or authority to conduct, for example, regular drug searches or self help eviction based on suspicion that a tenant is conducting illegal activities.

So, if you are a landlord (or you represent one), do these cases mean sit back, relax and do nothing when tenants are misbehaving, especially when you suspect criminal activity?

The simple answer is: no.
First of all, your Lease may have contractually bound the landlord to take certain security measures and the failure to initiate same would trigger a default on the part of the landlord.

Second, nuisance law (both common law and statute based) is still alive and well in Ohio. While the Ohio Supreme Court in Rezcallah held that the State could not padlock a Landlord’s premises as a result of its tenant creating a public nuisance (in the form of illegal drug activity), and that the Landlord should not have to assume the role of the police, the landlord could indeed be guilty of maintaining a nuisance stemming from its tenant’s illegal drug activity.

Pursuant to Ohio Revised Code Section 3767.02-.03, whenever a nuisance is thought to exist, an action may be brought against the Owner, under Ohio’s “statutory nuisance law”, whether or not the Owner participated or acquiesced in the activity causing the nuisance. Ohio Revised Code Section 3719.10 “completes the picture” by providing that felony violations of Ohio’s criminal drug offenses on real estate constitute a nuisance subject to abatement (regardless of who is causing the nuisance).

The owner of real estate is expected to be proactive, and take actions it lawfully can, such as calling police when activity is suspected, and taking the tenant to eviction court when the illegal activity is confirmed. Violations and abatement orders under the above-mentioned statutes will be less egregious for owners that in good faith, try to lawfully abate nuisances, vs. collect rent and bury their heads in the sand.

The OCRM v. AMHA case should only be remembered as a narrow case that declined to hold a landlord legally responsible for a “hostile housing environment” initiated by one tenant against another tenant. Hopefully, landlords will look at this case like a Good Samaritan Law, and use the knowledge that they can’t be held responsible for causing the bigotry, as incentive for trying to remove it from their premises; that’s good for the tenants, good for business, and good for the “moral bottom line”.

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