Watch Your Language With Real Estate Leases; Math and Grammar Count

It is time to thank our high school math and English teachers. They were right when they said “watch your language” and that math and grammar count in the “real world”.

In the real world of real estate leases, this principle is well illustrated by the following case summaries:
Math Counts

Most landlords 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”, before an eviction action can be filed. Section 1923.04 (A) provides, in pertinent part:

 “Except as provided in division (B) or (C) of this section, a party desiring to commence an action under this chapter shall notify the adverse party to leave the premises, for the possession of which the action is about to be brought, three or more days before beginning the action, by certified mail, return receipt requested, or by handing a written copy of the notice to the defendant in person, or by leaving it at the defendant's usual place of abode or at the premises from which the defendant is sought to be evicted.” The remainder of  Section 1923.04 (A) prescribes the “magic words” to be used in the notice and requires same to be set out conspicuously.

Many landlords, however, don’t know how to count the “legal way”.
Pursuant to Ohio Revised Code Section 1.14 (“Excluding First and Including Last Day - Legal Holidays”):
“The time within which an act is required by law to be done shall be computed by excluding the first and including the last day; except that, when the last day falls on Sunday or a legal holiday, the act may be done on the next succeeding day that is not Sunday or a legal holiday.”

Joseph Ebbing, from Hamilton, Ohio found this “legal math” out the hard way. On July 6, 2012, Joseph Ebbing (the “Landlord”) served Gary Mathis Jr. and others (the “Tenant”) with a "Three Day Notice to Leave the Premises" as a result of the Tenant’s failure to pay rent.  On July 9, 2012, Ebbing, acting pro se (without a lawyer) brought a forcible entry and detainer (“eviction action”) against the Tenant in the Hamilton Municipal Court. The trial court dismissed Ebbing's eviction action and the Court of Appeals for Butler County affirmed the dismissal on the following grounds: “since the first day, (July 6) is excluded from the calculation of the three-day notice period and the last day (July 9) is included, by filing his eviction action on July 9th, Ebbing filed his action one day prematurely, thereby depriving the trial court of jurisdiction over his eviction action.” The court cited Ohio Revised Code Section 1.14, Ohio Civil Rule of Procedure 6(A) and the holding of a few court decisions to support its ruling.

The moral of this story; learn the new math.

Grammar Counts

Even the failure to follow a seemingly trivial grammar rule (the use of i.e. vs. e.g.) can result in unintended consequences. In a 1995 Connecticut case, the tenant intended for the landlord to make all of the “structural repairs”, including the roof. The lease, which failed to define “structural repairs”, contained the following language: “Landlord is responsible for structural repairs only, i.e., foundation, exterior walls and storefront, provided tenant keeps up the maintenance.” The court in this case held that the landlord was not responsible to make roof repairs because “roof” was not included in the list of items provided in the lease.

The court explained that “i.e.” means “that is” and “e.g.” means “for example.” Consequently, the use of “i.e.” served to limit landlord’s structural responsibility to only those items listed in the lease vs. merely providing examples of the kinds of structural repairs that the landlord would be responsible for. The court determined that the language of the lease was clear and unambiguous, and therefore, it would not consider evidence of the parties’ intent.

The moral of this story; watch your language and say what you mean, precisely, or a court will tell you what you meant.

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