Before You Can Evict (a Tenant) Your Notice Must Be Legit

Most landlords with a right to evict a tenant by judicial means know the requirements of Section 1923.04(A) of the Ohio Revised Code calling for what has been commonly known as a “Statutory Three-Day Notice”. (Note: There are a number of cases in Ohio granting commercial landlords the right to seek non-judicial means to evict a commercial tenant, provided there is no “breach of the peace”. See Northfield Park v. Northeast Ohio Harness, 36 Ohio App. 3d 14 (8th Dist 1987). Landlords of residential property, however, can only use judicial means for eviction pursuant to Ohio Revised Code Section 5321.15). In fact, most of these landlords have a stack of Ohio Legal Blank “Three-Day Notice” forms that contain the “magical statutory language” in the proper font.

What many landlords lose sight of, however, is the notice that is required (in certain circumstances in Ohio) to terminate a lease as a pre-condition to serving a three-day notice. The following threshold questions to ask and answer will help you determine when you must provide a “Notice to Terminate”, prior to the “Three day Notice”.

1. Is there a tenancy? In a recent Ohio residential landlord/tenant case, (Amick v. Sickles, 177 Ohio. App. 3d 337, 2008-Ohio-3913) the 4th District Court of Appeals held that no notice of termination of the lease was required because there was no lease of any kind established between the homeowner and the resident. In this Case, an ex-spouse stayed in the house that the other spouse sold as part of a divorce proceeding. Since this individual never paid rent and never had a lease, the owner was able to file the three-day notice, as the only notice required before filing for eviction. Commercial landlords wanting a hold-over tenant to leave quickly, need to ensure that their lease provides that the holdover does not become a tenant. Many clauses in tenant oriented commercial leases provide that a hold-over situation is to be treated as a month-to-month tenancy, terminable by either party via a thirty-day notice. For landlords that want to make clear that there is no new tenancy created, the lease should so specify, in which case the holdover is more trespasser than tenant.

2. What type of tenant is involved? If it is a tenant of residential property, Ohio Revised Code Chapter 5321 governs. With regard to termination notices, Sections 5321.17, 5321.11, and 5321.09 are dispositive (See Paragraphs 3 and 4 below).

The requirements regarding termination notices for commercial tenancies can be found in Ohio case law. As a general rule, unless contrary to statute, there is no prior notice requirement to terminate a commercial lease, if not found in the lease itself. In Section 3 below, we ask what kind of tenancy is required (i.e. fixed term or periodic) in order to determine what notice is required. In commercial leases, however, this next question need not be answered due to the Ohio Supreme Court case of Maggiori v. Kovach (101 Ohio St. 3d 184 (2004). The Court in Kovach held that a commercial tenant need not give a thirty-day notice to a tenant to terminate a month-to-month tenancy, prior to serving a Three Day Notice. The simple basis for this holding is that the Ohio statute calling for such a thirty-day notice defines ”tenant” as one that uses and occupies a residential premises.

3. What is the type of tenancy? While there are variations, the two true forms of tenancy are “periodic tenancy” and “fixed tenancy”. A fixed tenancy is a tenancy with a fixed term (e.g. one year, five years, one month). A periodic tenancy is one in which the term is not fixed, and is typically defined by when one pays rent. For example, if a tenant pays rent on a monthly basis, and there is no fixed time period, the lease is said to be a month-to-month periodic lease. As discussed earlier, there is no notice required in Ohio to terminate a commercial, periodic tenancy. For residential, periodic tenancies, Ohio Revised Code Section 5321.17 governs. It basically calls for a seven-day prior notice for a week-to-week tenancy and a thirty-day notice for a month-to-month tenancy. These notices must be sent prior to the Three-Day Notice.

4. What is the basis for terminating the lease? Specifically excluded from the residential periodic tenancy notice required by virtue of ORC Sec. 5321 17 (A) and (B), are the situations when one is terminating a periodic tenancy due to breach of the lease or failure to perform other duties or obligations set by law (See ORC Sec. 5321.17 (C). In other words, terminating a residential periodic tenancy for non-payment of rent does not require a notice to terminate prior to the Three-Day Notice. Neither is such a termination notice required when the tenant has violated certain drug offenses in the premises pursuant to ORC Sec. 5321.09. On the other hand, Section 5321.11 of the Ohio Revised Code calls for a minimum thirty days termination notice if a landlord is attempting to terminate a lease agreement for tenant’s non-compliance with its Section 5321.05 obligations.

The moral of this story is if landlord and tenant cannot work out between themselves new payment schedules or other resolutions of their disputes (highly recommended in today’s economy) legal advice is recommended so that an amicable result may still be able to be worked out, or if not, and eviction is necessary, it will not be prevented or delayed due to failure to follow necessary procedures. If you are a landlord or represent landlords of residential premises, a thorough understanding of Chapter 5321 of the Ohio Revised Code is essential. If you are a commercial tenant, or represent commercial tenants, a clear understanding of your lease, as well as Ohio case law is important.


Anonymous said...

OK, so if a commercial tenant has paid their lease in it's entirety, is it still possible to evict them or seize contents because they've closed their business and they're up to their necks in litigation - breach of contract w/partners and Ohio is chasing the corporate president for Personal Income Tax well over $100K? More to promote the regional economics, I have another tenant that is willing to take the space and has an established cleintele, can I buy them out and exactly what "stays" - bolted to the floor, fixtures/equipment? I do not want the little store destroyed, because then it would be un-leasable. said...

Just as you want to positively reinforce their behavior for paying rent early, you have to punish them for paying rent late. Your rental agreement probably includes a late payment penalty (and if it doesn't then it should), which you should enforce by sending tenant notices out as soon as the grace period is over. Filing for eviction over a $40 late fee may seem ridiculous, but it will send an extremely strong message to your tenants to shape up, and you probably won't have the same problem again when they scramble to pay that late fee and avoid eviction.

Anna said...

I recently purchased a property that the former owners leased to tenants. As agreed in the contract I did not inherit the tenants. And indeed in my loan agreement I cannot use the property for any income gain.
The former homeowner's verbaly informed the tenants in Jan 2011 of their intention to sell the property and that a Notice to Vacate would be served upon closing once teh closing date was set. As agreed the former homeowners served the Notice to Vacate 30 days from the closing date of July 6th 2011.
I have been contacted by the tenants and in that conversation I reminded them that ther 30 days if up on August 5th. They informed me they would not be out by them. I made it clear we had the legal right to occupy after the 5th and we have already planned renovation crews to come in and the locks to be changed. She then let me know that she contacted the local police and is under the firm belief that it it an illegal act for me to change the locks or shut off teh utilities whiel she occupies the house even after the 5th.
However, I also contacted the local police as well as a friend of mine who is a realestate attorney. They both told me that if indeed my documents are true as I say they are, we have the legal right to not only change the locks and shut off the utilities, we can also have ther loacl Sherriff come and remove any persons from the property.
I have no agreement with these people. Nor am I accepting any money from them.
Am I within the law in Hamilton County and the State of Ohio being a property owner who simply wishes to resdide in my purchased home?

Anonymous said...

i am a homeowner and my friend that is staying with me quit paying rent. we have a month to month lease. what steps should i take to get him out of my home?

Unknown said...

We have tenets that have not paid rent for 5 months and there lease has ran out but they won't leave. What do I need to do to get them out?