A Landlord’s Guide to Releasing Escrowed Rent in Ohioohiolandlordtenantblog.com/wp-content/uploads/2015/... · The right time to seek release of the escrow may be when your tenant’s

A Landlord’s Guide to Releasing EscrowedRent in Ohio

By Eric E. Willison and Andrew J. Ruzicho II©2008 all rights reserved

Table of Contents

Chapters Page

Chapter One: Understanding the Big Picture 3Chapter Two: Strategy Concerns 4Chapter Three: The Relevant Statutes 7Chapter Four: Need for an Attorney 18Chapter Five: Representing Yourself 21Chapter Six: The Filings 25

Chapter 1: Understanding the Big Picture

Ohio Revised Code Section 5321.04 lays out various duties which the landlord mustperform in relation to residential rental property. Upon a violation of these non-delegable duties(meaning that you can’t assign your duties to someone else like the tenant even for a reduction inrent), if the tenant is current on his rent, then pursuant to Ohio Revised Code Section 5321.07 hecan send you a letter demanding that you remedy the .04 violation. If you don’t remedy it within 30days or a reasonable time (whichever is sooner) then your tenant can escrow the rental paymentswith the clerk of courts.

If that happens, you are likely going to receive something from the Court informing you thatthe rent that a certain tenant is normally paying you is now being paid to the clerk of courts.

Once the rent is escrowed, it will not be released to you without a judge’s okay. You aregoing to have to petition the court to release the escrowed rent to you.

Ohio Revised Code Section 5321.09 establishes the right of a tenant to file an answer and acounterclaim as a response to the landlord's request to release the funds in escrow. Ferrato v. MaurerRealty, 1986 Ohio App. LEXIS 9647 (December 5, 1986) Wood Co. App. No. WD-86-28 unreported. A trial shall be held within sixty days of the date of the filing of the landlord'scomplaint. Ohio Revised Code Section 5321.09. Laster v. Bowman (1977), 52 Ohio App.2d 379 at386-387.

There are several reasons which you can assert which will allow the court to release theescrowed rent to you, but you need to lay it out in the proper format. That is what this book isabout.

Chapter 2: Strategy Concerns

I. Do You Want to Make a Motion to Release the Escrowed Rent?

It may seem obvious that you would want the rent paid to you as soon as it is due. But thereare some advantages to waiting, assuming you are in a financial position that allows it.

A. Close Factual Situation

If there is an issue as to whether or not you have fixed what the tenants are complainingabout, and if this going to be hard to prove, you might want to wait until a stronger reason forreleasing the escrowed rent emerges if you can afford to do so.

Let’s say that the tenants are complaining about other tenants in the building making toomuch noise. Let’s further assume that you have chosen not to evict those other tenants because intalking to them, you sense that the complaining tenant is being overly sensitive to the noise issue.But if you file for release of the escrowed rent, the court will set a hearing on the issue to determinewhether or not the noise problem exists, and whether it has been resolved.

At that hearing, it is going to be your word against the tenant’s word. You could bring inother tenants to tell the court that even though they live closer to the alleged noise makers that itdoesn’t bother them, but that is going to be a big hassle, and if those other tenants don’t like you forsome reason, or are too busy, are they really going to show up and testify in your favor, even if youhave sent out a subpoena?

Waiting and letting your tenant escrow the rent has some advantages.

First, if your tenant is looking to stick it to you, letting him escrow the rent is a great idea. Atenant might not be all that motivated to get his rent in to you on time with checks that won’tbounce. But if he is paying the clerk of courts, he is going to be motivated (by his desire to stick itto you) to make sure that the checks don’t bounce and that he isn’t late in paying. This is becausehe is likely to know that if he bounces a check to the clerk or if he pays the clerk late, then you canuse this as the basis of a motion to release the rent from escrow. The tenant’s bias against youworks for you in this regard because he may well pay the clerk more faithfully then he will pay you.That money isn’t going anywhere. It is safe and sound with the clerk’s office.

The right time to seek release of the escrow may be when your tenant’s lease is at an end,for once he moves out, the escrowed rent must be released to you upon your motion. Weibling v.Rine, 1977 Ohio App. LEXIS 7537 (August 30, 1977) Franklin Co. App. No. 77AP-355 unreported.

Second, if your tenant is a disorganized person, you can be pretty sure that he will be late onhis rent with the clerk and/or will bounce a check to the clerk. In either case, the jig is up on theescrow, and you don’t have to worry about how hard it is going to be to prove whether or not thecondition the tenant is complaining about ever existed or if it did exist, was fixed.

B. The Court May Act Upon Its Own

Don’t count on it, but there are times when the Court will release the rent to the landlordeven though the landlord made no motion for its release. This occurs when, from the face of thepleadings, it appears that the tenant did not follow the proper escrow procedures.

In the case of Antara v. Wyandot Square Apartments, 1997 Ohio App. LEXIS 1602 (April15, 2007) Crawford Co. App. No.s 3-96-29 and 3-96-30, the trial court released the rent to thelandlord even though the landlord never filed a motion for the release of the escrowed rent. Thetenant appealed, but Ohio’s Third District Court of Appeals upheld the ruling of the trial court. TheCourt reasoned that the first written notice received by landlord came with the copies of theapplication to deposit rent with the court. Since “the statute specifically states that if the court findsthat the tenants did not give proper notice or were not current with their rent payments, then thefunds should be released”, this “outcome is necessary because failure to comply with therequirements of R.C. 5321.07 voids the tenant's right to place the funds in escrow.”

The Court also ruled that it was not error to hear the issue of the release of the escrowed renttogether with the issue of whether the landlord was entitled to an eviction. The Third District Courtof Appeals held that trial courts have the inherent power to control its docket by hearing pendingrelated matters at one hearing.

C. Don’t Wait To Fix It Though

But you don’t want to wait to fix what the tenant is complaining about, especially if thecondition could injure someone. If someone is injured at your rental property, you could be suedfor the tort of negligence. Negligence as four elements, 1) Duty; 2) Breach; 3) ProximateCausation; and 4) Damages.

In order to satisfy the first element of a negligence claim, Duty, the tenant must first showthat the harm was foreseeable by the landlord. The problem for the tenant in any negligence actionis that once the tenant takes possession of the rented premises, the landlord has no idea whether ornot a dangerous condition has arisen behind the tenant’s locked door. The landlord can plead thisignorance as a defense to a personal injury lawsuit.

But if the tenant can show the landlord that he or she sent a letter to the landlord warninghim that the carbon monoxide sensors in the apartment were going off whenever the furnace kickedon, it is going to be pretty darned hard for the landlord to say he didn’t know about the problemafter everyone in the building is overcome by such fumes from a defective furnace when that lettercomes to light. So fix the problem as soon as you can, but you might want to wait to seek release ofthe escrowed rent.

Chapter 3: The Relevant Statutes

I. The Landlord’s Duties to the Tenant

It all starts with Ohio Revised Code Section 5321.04 which lays out the landlord’s duties tothe tenant in Ohio and states in pertinent part as follows:

A) A landlord who is a party to a rental agreement shall do all of the following:

(1) Comply with the requirements of all applicable building, housing,health, and safety codes that materially affect health and safety;

(2) Make all repairs and do whatever is reasonably necessary to putand keep the premises in a fit and habitable condition;

(3) Keep all common areas of the premises in a safe and sanitarycondition;

(4) Maintain in good and safe working order and condition allelectrical, plumbing, sanitary, heating, ventilating, and airconditioning fixtures and appliances, and elevators, supplied orrequired to be supplied by him;

(5) When he is a party to any rental agreements that cover four ormore dwelling units in the same structure, provide and maintainappropriate receptacles for the removal of ashes, garbage, rubbish,and other waste incidental to the occupancy of a dwelling unit, andarrange for their removal;

(6) Supply running water, reasonable amounts of hot water andreasonable heat at all times, except where the building that includesthe dwelling unit is not required by law to be equipped for thatpurpose, or the dwelling unit is so constructed that heat or hot water isgenerated by an installation within the exclusive control of the tenantand supplied by a direct public utility connection;

(7) Not abuse the right of access conferred by division (B) of section5321.05 of the Revised Code;

(8) Except in the case of emergency or if it is impracticable to do so,give the tenant reasonable notice of his intent to enter and enter onlyat reasonable times. Twenty-four hours is presumed to be a reasonablenotice in the absence of evidence to the contrary.

(9) Promptly commence an action under Chapter 1923. of the RevisedCode, after complying with division (C) of section 5321.17 of the

Revised Code, to remove a tenant from particular residentialpremises, if the tenant fails to vacate the premises within three daysafter the giving of the notice required by that division and if thelandlord has actual knowledge of or has reasonable cause to believethat the tenant, any person in the tenant's household, or any person onthe premises with the consent of the tenant previously has or presentlyis engaged in a violation as described in division (A)(6)(a)(i) ofsection 1923.02 of the Revised Code, whether or not the tenant orother person has been charged with, has pleaded guilty to or beenconvicted of, or has been determined to be a delinquent child for anact that, if committed by an adult, would be a violation as described inthat division. Such actual knowledge or reasonable cause to believeshall be determined in accordance with that division.

(B) If the landlord makes an entry in violation of division (A)(8) of this section,makes a lawful entry in an unreasonable manner, or makes repeated demands forentry otherwise lawful that have the effect of harassing the tenant, the tenant mayrecover actual damages resulting from the entry or demands, obtain injunctive reliefto prevent the recurrence of the conduct, and obtain a judgment for reasonableattorney's fees, or may terminate the rental agreement.

What the above statute translates out to is that as a landlord of residential property, you havea legal obligation to keep the premises in a fit and habitable condition. You must therefore abide byall of the duties in R.C. 5321.04, together with any duties imposed upon you by the leaseagreement, and any local housing or safety codes as well.

II. Tenant’s Right To Escrow Rent

If you violate your duties under Ohio Revised Code Section 5321.04, then the tenant willturn to Ohio Revised Code Section 5321.07 which states as follows:

(A) If a landlord fails to fulfill any obligation imposed upon him by section 5321.04of the Revised Code, other than the obligation specified in division (A)(9) of thatsection, or any obligation imposed upon him by the rental agreement, if theconditions of the residential premises are such that the tenant reasonably believesthat a landlord has failed to fulfill any such obligations, or if a governmental agencyhas found that the premises are not in compliance with building, housing, health, orsafety codes that apply to any condition of the premises that could materially affectthe health and safety of an occupant, the tenant may give notice in writing to thelandlord, specifying the acts, omissions, or code violations that constitutenoncompliance. The notice shall be sent to the person or place where rent is normallypaid.

(B) If a landlord receives the notice described in division (A) of this section and afterreceipt of the notice fails to remedy the condition within a reasonable timeconsidering the severity of the condition and the time necessary to remedy it, or

within thirty days, whichever is sooner, and if the tenant is current in rent paymentsdue under the rental agreement, the tenant may do one of the following:

(1) Deposit all rent that is due and thereafter becomes due thelandlord with the clerk of the municipal or county court havingjurisdiction in the territory in which the residential premises arelocated;

(2) Apply to the court for an order directing the landlord to remedythe condition. As part of the application, the tenant may deposit rentpursuant to division (B)(1) of this section, may apply for an orderreducing the periodic rent due the landlord until the landlord remediesthe condition, and may apply for an order to use the rent deposited toremedy the condition. In any order issued pursuant to this division,the court may require the tenant to deposit rent with the clerk of courtas provided in division (B)(1) of this section.

(3) Terminate the rental agreement.

(C) This section does not apply to any landlord who is a party to rental agreementsthat cover three or fewer dwelling units and who provides notice of that fact in awritten rental agreement or, in the case of an oral tenancy, delivers written notice ofthat fact to the tenant at the time of initial occupancy by the tenant.

(D) This section does not apply to a dwelling unit occupied by a student tenant.

So upon your breach of your R.C. 5321.04 duties, the tenant who is current on his/her rentmay deposit that rent with the clerk of courts after writing you a letter informing you of the problemand waiting a reasonable amount of time to fix the problem, or thirty days, whichever is sooner.

III. General Bases for Motion for Release

A. Inapplicability to the Landlord With Three or Fewer Units

The first general basis for a release of the escrowed rent is that the rent escrow law protectssmaller landlords. If the landlord is a party to rental agreements that cover three or fewer units, andif the landlord discloses this to the tenant in the written rental agreement (or in a writing sent to thetenant in the case of an oral lease), then the landlord can argue that it is improper for the tenant toescrow the rent with the court. If this argument applies to you, then you can petition the court forrelease of the escrowed rent.

B. Insufficient Time Period of Notice

The tenant must give the landlord 30 days or a reasonable amount of time, whichever issooner, to the landlord to fix the problem. This means that the longest that a tenant has to wait is 30days, but if the court determines that the waiting period should be shorter, then the tenant may be

able to escrow after fewer days. So if the tenant has escrowed the rent after giving you very littlenotice for a pretty major job, you may be able to argue that the court should release the escrowedrent to you.

Tenants fall into this trap sometimes when they put off sending in the notice to repair untillate in the month, and then they want to start escrowing at the next possible opportunity, whichwould be the start of the next month.

Let’s look at a case wherein Ohio’s Second District Court of Appeals examined the issue ofhow long a “reasonable amount of time” was.

In the case of Timbercreek Apartments v. Myles, 1999 Ohio App. LEXIS 2385 (May 28,1999) Montgomery Co. App. No. 17422, the tenant gave notice to the landlord of several problemsin writing on June 30, 2006. These problems, to quote from the tenant’s letter to the landlord were:“fifteen-year-old stained carpet with holes, ceiling damaged by a defective roofing job, shower witha gaping hole that exposed pipes, fifteen-year-old refrigerator with a defective motor, and an airconditioner that caused the circuit breaker to "throw."”

The tenant demanded in his notice to remedy that all of the problems be fixed by the nextday, and then began to escrow the rent on July 6, 2006 when the landlord had not yet fixed theproblem. The landlord argued that he did not have enough time to fix the problem with only sixdays notice, and the Second District Court of Appeals agreed. The Court held that:

Myles was not authorized by law to escrow the July rent because his R.C.5321.07(A) notice was ineffectual in that it demanded repairs within an unreasonablyshort period of time.

So there is legal authority in Ohio for the proposition that one to seven days of notice to fixseveral problems is not sufficient time under the statute. If the tenant mails you the notice, you willwant to bring that up to the court, since mailing time will be considered by the court in calculatingwhether there was a reasonable amount of notice given. Further, if there were any weekends orholidays during a short notice period, you will want to point these out to the judge as well.

C. Failure of Tenant to Give Notice

If the tenant never complained to the landlord about the need to remedy the conditions, thenthe tenant has not complied with R.C. 5321.07 and the escrowed rent must be released. Somelandlords have argued that this requires that the tenant present into evidence at court a copy of thewritten notice sent out to the landlord. They argue that the failure to present such evidence to thecourt at the hearing on whether or not to release the escrowed rent mandates a release of theescrowed rent.

But Ohio’s Second District Court of Appeals has held that the tenant’s testimony that shesent out such notice is sufficient proof that it was sent out (if believed by the factfinder, of course).The Court ruled that:

First, CMB contends that Baker was not entitled to the relief afforded by R.C.5321.07 because, "despite [Baker's] testimony of what she says she mailed, withoutthe actual, or at least an exact copy of the alleged written notice itself, the trial courtcould not have properly determined whether or not Baker complied with the statute."We disagree. Baker's testimony, without more, was sufficient evidence from whichthe trial court could have concluded that she had mailed to CMB the written noticerequired by R.C. 5321.07(A), assuming that it found her to be credible. The trier offact is entitled to deference on issues of credibility because of its ability "to view thewitnesses and observe their demeanor, gestures and voice inflections, and use theseobservations in weighing the credibility of the proffered testimony." Seasons CoalCo. v. Cleveland (1984), 10 Ohio St.3d 77 at 80. Moreover, CMB did not presentany evidence that the certified mailings that it had received had contained some othertype of notice or document. The trial court's implicit finding that Baker had satisfiedthe written notice requirement of R.C. 4321.07(A) was not against the manifestweight of the evidence.

The case on this was CMB Partnership v. Baker, 2000 Ohio App. LEXIS 2315 (June 2,2000) Montgomery Co. App. No. 18159 unreported at 6-7. So the fact that the tenant has nodocuments to show that she sent out the notice will not stop the trial court from keeping the rent inescrow if it believes the tenant.

III. Specific Statutory Bases for Release of Escrowed Rent

A. Full Release of Rent

Ohio Revised Code Section 5321.09 allows the landlord to apply for the release of escrowedrent and states in pertinent part as follows:

(A) A landlord who receives notice that rent due him has been deposited with a clerkof a municipal or county court pursuant to section 5321.07 of the Revised Code, maydo any of the following:

(1) Apply to the clerk of the court for release of the rent on the groundthat the condition contained in the notice given pursuant to division(A) of section 5321.07 of the Revised Code has been remedied. Theclerk shall forthwith release the rent, less costs, to the landlord if thetenant gives written notice to the clerk that the condition has beenremedied.

(2) Apply to the court for release of the rent on the ground that thetenant did not comply with the notice requirement of division (A) ofsection 5321.07 of the Revised Code, or that the tenant was notcurrent in rent payments due under the rental agreement at the timethe tenant initiated rent deposits with the clerk of the court underdivision (B)(1) of section 5321.07 of the Revised Code.

(3) Apply to the court for release of the rent on the ground that therewas no violation of any obligation imposed upon the landlord bysection 5321.04 of the Revised Code, other than the obligationspecified in division (A)(9) of that section, any obligation imposedupon him by the rental agreement, or any obligation imposed uponhim by any building, housing, health, or safety code, or that thecondition contained in the notice given pursuant to division (A) ofsection 5321.07 of the Revised Code has been remedied.

(B) The tenant shall be named as a party to any action filed by the landlord under thissection, and shall have the right to file an answer and counterclaim, as in other civilactions. A trial shall be held within sixty days of the date of the filing of thelandlord's complaint, unless, for good cause shown, the court continues the periodfor trial.

(C) If the court finds that there was no violation of any obligation imposed upon thelandlord by section 5321.04 of the Revised Code, other than the obligation specifiedin division (A)(9) of that section, any obligation imposed upon him by the rentalagreement, or any obligation imposed upon him by any building, housing, health, orsafety code, that the condition contained in the notice given pursuant to division (A)of section 5321.07 of the Revised Code has been remedied, that the tenant did notcomply with the notice requirement of division (A) of section 5321.07 of the RevisedCode, or that the tenant was not current in rent payments at the time the tenantinitiated rent deposits with the clerk of court under division (B)(1) of section 5321.07of the Revised Code, the court shall order the release to the landlord of rent ondeposit with the clerk, less costs.

(D) If the court finds that the condition contained in the notice given pursuant todivision (A) of section 5321.07 of the Revised Code was the result of an act oromission of the tenant, or that the tenant intentionally acted in bad faith inproceeding under section 5321.07 of the Revised Code, the tenant shall be liable fordamages caused to the landlord and costs, together with reasonable attorney's fees ifthe tenant intentionally acted in bad faith.

So this statute gives the landlord the right to petition the court for the release of theescrowed rent. The tenant may answer with his own filing if he or she wants to argue the point, andthe court must hold a hearing on the matter within 60 days of the landlord’s motion for release ofthe escrowed funds.

1. Procedural Bases for Release of Escrowed Rent

First, there may not be anything to argue about. Often the escrow of the rent will motivatethe landlord to fix the problem right away. If the tenant agrees at the hearing under Ohio RevisedCode Section 5321.09(A)(1) that the problem has been fixed, then the clerk must release theescrowed rent to the landlord.

2. Merit Bases for Release of Escrowed Rent

But if there is going to be a fight over whether or not the problem complained about wasfixed or not, then the landlord can make several arguments. First, he can argue that the tenant didnot give the proper notice to remedy the problem before escrowing the rent. Second, he can arguethat the tenant was not current on the rent at the time he escrowed the rent. Third, he can argue thatthere was no breach of Ohio Revised Code Section 5321.04, or of the lease agreement, or of anyapplicable health and/or safety code.

a. Remedy of Condition

If the tenant can show that there was a breach of Ohio Revised Code Section 5321.04, or ofthe lease agreement, or of any applicable health and/or safety code at the apartment, then thelandlord is going to have to argue that the breach was fixed by the time the case comes on for ahearing. The best evidence of this are repair bills, testimony of the person performing the repair,and, if possible, pictures of the before and after condition of the area to be repaired.

Be wary of cases where the tenant is complaining of things that are not easily photographedor videotaped, like smells, drafts, or noises. With these, live witness testimony from the repairperson is going to be key.

b. Tenant Not Current on Rent

If the landlord can show that the tenant was not current on the rent at the time the tenantescrowed the rent, then this will serve as a basis for the release of the escrowed funds. This meanskeeping good, legible, organized, and easy to understand records of who paid what and when, andbringing them into court.

c. No Breach of R.C. 5321.04, Applicable Codes, or LeaseAgreement

If the landlord can show that at the time the tenant escrowed the rent there was no violationof the landlord’s duties to keep the premises in a fit and habitable condition under Ohio RevisedCode Section 5321.04, or of applicable health and safety codes, or that there was no violation of thelease agreement, then the landlord may use this as a basis for a petition for release of the escrowedrent.

The best evidence here might be pictures of the item complained about, receipts for purchase(it may be hard for a court to believe that a refrigerator purchased three months ago is alreadybroken), testimony from other tenants if the condition complained about is in a common area,testimony from the landlord or the landlord’s repair person who might have seen the item up close.

Naturally, if the tenant is arguing that there has been a breach of the lease allowing him toescrow the rent, you will want to bring in a copy of the lease agreement to show that the lease doesnot require the landlord to furnish or repair that item. Be careful here though. Just because thelease says that the landlord does not have to fix the furnace if it goes out in January, this does not

mean that the Court will enforce such a provision. Contractual clauses which are contrary to theOhio Landlord Tenant Act of 1974 will not be enforced, nor will clauses in rental agreements whichare found to be unconscionable.

If the tenant is wrongly arguing that a local building or health and safety code is beingviolated, then you will want to bring in a copy of that code section to show the court that it does notsay what the tenant says it does.

It is no defense for the landlord to claim that the violation of Ohio Revised Code Section5321.04 the tenant is complaining about isn’t actually bothering anyone at the time. For instance,some landlords will argue that the fact that the air conditioner doesn’t work in January will notserve as a basis to escrow the rent.

But in The case on this was CMB Partnership v. Baker, 2000 Ohio App. LEXIS 2315 (June2, 2000) Montgomery Co. App. No. 18159 unreported at 6-7, Ohio’s Second District Court ofAppeals rejected a landlord’s argument that he did not have a duty to fix the air conditioningbecause it was broken during a cooler part of the year.

Further, in the case of Howard v. Simon (1984), 18 Ohio App.3d 14, the tenant complainedthat the air conditioner at the rented apartment was not working. The landlord had a policy ofturning off the system to the entire building when the landlord felt that the temperature was coolenough. Ohio’s Eighth District Court of Appeals held that R.C. 5321.04(A)(4) requires an airconditioner to perform when needed, regardless of outside temperature). Howard at 15-16.

The Court, in rejecting the landlord’s arguments that he should be able to control when thetenants could use their air conditioning, reasoned as follows

R.C. Chapter 5321 is remedial and intended to provide tenants with greater rights.Shroades v. Rental Homes, Inc. (1981), 68 Ohio St.2d 20. The Act would furnish noprotection to the tenant if read to merely require the landlord to have a system inworking order. An air conditioner which is turned off results in the sameuninhabitable conditions as one which is broken. Howard at 15-16.

Particularly difficult to prove or disprove are smells at the rented premises. In the case ofLiggins v. Westminster Arms, 1998 Ohio App. LEXIS 6247 (December 22, 1998) Franklin CountyApp. Nos. 98AP-377 and 98AP-378, unreported, Ohio’s Tenth District Court of Appeals held andreasoned as follows:

The lease agreement between the parties does not guarantee appellant a smoke-freeenvironment. Nor is there a statutory obligation that a landlord must ensure that nomarijuana smoke be detectable in a tenant's apartment. Therefore, whether appellantcould pursue relief against the landlord for her discomfort caused by the marijuanasmoke depends on whether her covenant of quiet enjoyment was breached.

Appellant cites no law that, because marijuana is an illegal substance, if she cansmell it in her apartment, regardless of its strength, she has automatically suffered

substantial impairment to the beneficial use of her apartment. The trial court'sfindings note that no witness at trial, other than appellant, noticed an odor ofmarijuana in her apartment. On this evidence, the court did not abuse its discretionwhen it found no interference by appellee with appellant's enjoyment of herapartment, and no violation of an obligation owed appellant. Liggins at 10-11.

Landlords are not strictly liable (meaning liable without a showing of some sort of fault) forviolations of Ohio Revised Code Section 5321.04. In Ohio’s Fourth District Court of Appeals therewas a question of who was at fault for water pressure problems in the apartment complex.

The landlord argued that it was the City of Athens water system and the tenants argued thatit was the landlord’s plumbing. The trial court held that it didn’t matter who was at fault becauseOhio Revised Code Section 5321.04 held the landlord strictly liable for the problem. But the FourthDistrict Court of Appeals held that this was error. The Appeals Court reasoned that it did not“believe the legislature intended the landlord's Section 5321.04(A)(6) obligation to supply runningwater to render landlords strictly liable for any interruption or reduction in the flow of water, be itcaused by act of God, by the City of Athens, or by tenants themselves.” The case on this is Stewartv. Kalman, 1982 Ohio App. LEXIS 14104 (August 16, 1982), Athens Co. App. No. 1109,unreported.

B. Partial Release of Rent

The Ohio Legislature knew when it passed R.C. 5321.07 that this might jam up somelandlords who have regular bills which must be paid each month (mortgage, taxes, insurance). It isin no one’s interest for a landlord to lose a piece of property to foreclosure while the funds forsaving it sit in escrow with the court.

Further, the legislature knew that by holding the funds needed to fix the problem in theescrow account, the landlord may be put in a Catch 22 situation. A landlord short of money can’tfix the problem for lack of funds, and the continued existence of the problem keeps the landlordshort of funds.

Thus the landlord may petition the Court to release a portion of the escrowed rent in certainlimited circumstances. Ohio Revised Code Section 5321.10 states as follows:

(A) If a landlord brings an action for the release of rent deposited with a clerk ofcourt, the court may, during the pendency of the action, upon application of thelandlord, release part of the rent on deposit for payment of the periodic interest on amortgage on the premises, the periodic principal payments on a mortgage on thepremises, the insurance premiums for the premises, real estate taxes on the premises,utility services, repairs, and other customary and usual costs of operating thepremises as a rental unit.

(B) In determining whether to release rent for the payments described in division (A)of this section, the court shall consider the amount of rent the landlord receives fromother rental units in the buildings of which the residential premises are a part, the

cost of operating those units, and the costs which may be required to remedy thecondition contained in the notice given pursuant to division (A) of section 5321.07 ofthe Revised Code.

This means that the landlord can argue in a petition to release the escrowed rent that he ishaving trouble making the mortgage payments, the insurance premiums, the real estate taxes, utilityservices, repairs, or other customary and usual costs for operating the premises as a rental unit. Ifthe court believes the landlord, then the court can authorize the clerk to release a sufficient amountof the rent to get these important costs paid.

The tenant can counter argue that even though these costs are building up for the landlord,that the landlord has so much money from other rental units that the rent should remain in escrow.Basically, the tenant is going to argue that R.C. 5321.10 is meant to protect landlords put into direfinancial straights by the escrow and who might lose the building because of the escrow. But whenthe landlord is running a building with a great many units, all of which are pouring rent into thelandlord’s coffers, R.C. 5321.10 should not provide relief.

But the landlord is not out of aces here just because he owns a large building. The landlordmay argue that even though he may have 50 units in the building, there are a great many costs tooperating those rental units, and that he is barely breaking even. He can also argue that the cost ofthe repair that the tenant wants is so much that even with all of the money coming in from the otherrental units, he is still not going to be able to make the repairs needed without some portion of theescrowed rent released to him (perhaps the place needs a new roof).

Some landlords will hold their buildings as an asset of one of several companies, thusmaking it appear to the court that ABC Mgmt, LLC is a small company, holding only one buildingand is in a cash crunch. But that same landlord may also own DEF Mgmt., LLC, GHI Mgmt., LLC,and JKL Mgmt., LLC, each of which also has a building to its name.

C. Need to Include Clerk of Courts as a Party

In defending against the landlord’s petition to release the rent, the tenant may file aresponsive pleading. In that pleading, he or she may argue that some of the rent should be releasedto him or her because the landlord’s breach of the lease agreement caused the tenant damages.

Ohio’s Tenth District Court of Appeals has held that a tenant’s action for the release of rentto the tenant must be dismissed, first because the tenant has no possible claim to the rent, but alsobecause the tenant failed to name the clerk of courts (who was holding the money) as a party to thelawsuit. A court has no jurisdiction over a person unless they are served with process in the case.

The same could be argued in the case of a landlord seeking release of the escrowed rent. Ifthe landlord fails to make the clerk of courts a party to the case, then the tenant could argue or thecourt could find that the court has no power over the clerk to order it to release those particularfunds. The statute does not mandate that the clerk be made a party, or the tenant, but perhaps itwould be safest to include the clerk as a party in the petition. The case on this is Weibling v. Rine,1977 Ohio App. LEXIS 7537 (August 30, 1977) Franklin Co. App. No. 77AP-355 unreported.

Chapter Four: The Need for an Attorney

You may have purchased this work thinking that it will save you the money you would havespent hiring an attorney to represent you. But this book is not a substitute for an attorney for severalreasons. While a person can always represent himself in court (this practice is often referred to asappearing “Pro se” or “making an ass of oneself while on the road to ruin”), there are situations inthe context of rent escrow hearings where representing yourself is either unwise and/or impossible.

I. What Constitutes Representing “Yourself”?

In Ohio, many landlords choose to hold their property under the name of a corporation. Thissomewhat insulates them from liability if there were ever any sort of injury or death to a tenantwhich a court might later find to be the fault of the landlord (if the contract is between the companyand the tenant, and the company owns the rented property, then the landlord can argue that thetenant’s recovery is limited to the value of the assets of the company, rather than the landlord’spersonal holdings).

The trouble is, that if you form your business into an LLC or an ‘s’ corporation, the lawviews this (as it must in order to insulate you from the liability you wish to avoid) as the formationof a wholly separate legal entity. While you can always represent yourself in court, you cannotrepresent another person or another legal entity (even if you own 100 percent of the outstandingshares of said company) unless you are an attorney licensed to practice law in Ohio.

It really sucks to get to court and have your petition dismissed because you are not anattorney and you can’t represent your company. This can happen in evictions as well. I have takenthese cases from both sides. When representing tenants, I can assure you that they get quite a kickout of their formerly cocky landlord’s mutterings as they leave the courtroom after listening to alecture from the judge. I always counsel my tenants to show no reaction to a good or a bad ruling,but they don’t always listen, and many a landlord has been followed out of the courtroom by theechoes of laughter from smug tenants.

II. The Perils of Representing Yourself

Assuming that you do own the property in your own name, you can petition the court forrelease of the escrowed rent without an attorney. However, what you can do and what you shoulddo are two different things. Hiring an attorney yields certain big advantages.

A. Courtroom Experience

1. Being Quick on Your Feet

No matter how smart you think you are, if you have not been to court before, you are goingto be a bit lost. In football, they talk about speed and game speed. The idea is that a linebacker mayhave a 40 yard dash time of 4.4, but as a freshman unused to the blocking schemes coming at him,he may hesitate and this causes him to play slower than a senior with a 4.6 40 yard dash time.

2. Organization and Credibility

As an unrepresented party, you will be nervous and that will tend to disorganize yourpresentation of the facts. An organized presentation of the facts is very important to a judge.Organization and credibility often go hand in hand in the mind of judges.

3. Knowledge of the Judge

It has also been said that a good lawyer knows the law, and a great lawyer knows the judge.As a practicing attorney over many years in central Ohio, I fancy that I have picked up some localknowledge as to which judges tend to favor tenants, which tend to favor landlords, and which areneutral. I also know which judges buy procedural arguments and which judges want everythingdecided on the merits. Knowing the arguments to use in front of a judge is a valuable bit ofknowledge indeed.

4. Knowledge of the Rules of Evidence and Procedure

The rules of Civil Procedure and the Rules of Evidence are very difficult to grasp, and notthe proper subject for this work (which would be 50 times longer than it is now and 50 times asexpensive). An attorney will have a grasp of these rules, and will know what to do when hereceives Civil Rule 53 Objections to a Magistrate’s Decision, and will know what to say whensomeone objects to the tenant’s out of court statement as hearsay. If you don’t have an attorneywhen that happens, the Court is going to turn and look at you for a response, and you are going tolook like a bump on a log.

Some trial courts may take pity on a pro se party who hasn’t the faintest idea what he or sheis doing, but don’t bet on it. If the trial court decides to play it straight down the line on questionsof procedure and evidence, that is not an error that a pro se litigant can argue on appeal. As theFirst District Court of Appeals stated in Meyers v. First Nat’l Bank (1981), 3 Ohio App.3d 209 at210:

Appellants' argument that as pro se civil litigants they should receive specialconsideration and not be bound by the same rules as civil litigants represented bycounsel is against the weight of Ohio as well as national authority. Pro se civillitigants are bound by the same rules and procedures as those litigants who retaincounsel. They are not to be accorded greater rights and must accept the results oftheir own mistakes and errors….

5. Objective View v. Subjective View

If you are the owner of the rental property involved, then all of this is happening to youdirectly. It is going to affect your emotions whether you like it or not. Things said that aren’t trueare going to make you mad. The fact that your money is being withheld is going to make you mad.This is called a subjective reaction.

But this stuff did not happen to your attorney. He only heard about it from you. While hedoubtless wants to win, he is not going to get as angry as you do when someone lies aboutsomething in court. He is going to act calmly and rationally in the face of a lie and ask pointedquestions during cross-examination which will reveal the lie rather than sit there spluttering inoutrage that someone lied under oath. He is going to react coolly and calmly to offers to settle.This is called an objective reaction, and it is very valuable in any litigation.

Chapter Five: Representing Yourself In Court

Ok, so you’ve read this far, especially the chapter about how much you need an attorney, yetyou refuse to get one. You’ll take my advice on everything else in this work, but not that. All right.I get it. I’ll do the best I can in telling you what I know about what wins in presenting your case incourt.

I. Forget About Television and the Movies

Justice is a process. It isn’t a drama. Court personnel and judges are just trying to getthrough the day and make the right decisions in cases. They aren’t looking for the next ClarenceDarrow without a law degree to wow them with passionate speeches. Creativity wins on television.Showing how ruling in your favor will follow the precedent of other cases wins in Court. So don’tget up there with the idea that you are going to play the part of a lawyer. You are going to looksilly.

If you really want to play a part, you should realize that you don’t have to act. You shouldplay the part of a witness, and you should play it by just being yourself (or maybe a polite version ofyourself?). If you want to watch what justice isn’t like, watch shows like Matlock and Law andOrder (that latter being a great show, just not realistic) and start watching Court TV (now calledTrue TV).

II. Facts Usually Beat Arguments

No matter how good I think I am as a lawyer, the outcome of a case usually gets down towho has the facts on his or her side. I find that my best work is done in my office when I first meetsomeone. If I get the sense that they are trying to pull one over on me or that their story is shakyand the facts just aren’t there, I tell them that I am sorry that I can’t help them and off they go toanother lawyer, usually to lose their case.

John Adams, a fantastic lawyer and our second president, once famously said whiledefending the redcoats who shot into the mob throwing rocks and ice at them outside a taxcollector’s house (an event that is referred to then and now as the Boston Massacre) that those shotwere a rabble, like it or not, and that “Facts are stubborn things.…” And so they are. By the way,Adams got those guys off in Boston before a Boston jury at a time when anti-British sentiment wasat its zenith.

In the end, the judge just wants the facts. When you are testifying, don’t argue, don’t spin it.Just tell the facts as you know them. You don’t have to repeat yourself five times. You don’t haveto shout. You don’t have to argue. There is no big secret here. You tell the facts in a clear andorganized manner and the judge will either see it or he or she won’t. When you have gotten yourfacts into evidence, sit down and shut up.

A lawyer would help you with this because he or she can cut away all of the extraneous stuffthat you pro se people insist upon putting into the story, but you’ve already decided you are going togo it alone.

III. Organized Presentation

I can’t stress enough how important it is to put on an organized presentation. When youwant to introduce an exhibit, you have to have three copies of it. One for the judge, one for youropponent, and one for you and the witness. That means having an exhibit notebook with theoriginal and two copies ready to go, in order.

You look like a disorganized ass if you are fumbling through your folders looking for theletter the tenant sent you acknowledging that they weren’t current on the rent but were “going toescrow anyway”, and it is easy for a judge to believe that a disorganized ass wasn’t taking his dutyto fix things around the rented property all that seriously.

IV. How a Hearing Works

Often, there will be opening statements, presentation of evidence, and closing statements.

A. Opening Statements

Opening statements are not arguments. They are a preview of the evidence and anintroduction to the issues of the case. They are the road map that you want the court to look at inthinking about the case.

“Your honor, this is a case involving a rental escrow that is improper. The evidence willshow that the tenant was behind on the rent when she escrowed, but even if she were current, theevidence will still show that I own three or fewer rental units and that I disclosed this fact to thetenant in the lease, thus the provisions of the rent escrow statute don’t apply to me. Thank you.”

Now that is an opening statement, and an especially good one to employ after your opponenthas rattled on for 20 minutes with a bunch of personal attacks and irrelevant gossip.

1. Don’t Introduce Evidence in Your Opening Statement

Don’t try to introduce evidence in your opening statement. Evidence can only come beforethe court if a witness testifies as to what it is and how it relates to the case. This is called laying thefoundation for the introduction of the evidence. Since no one has been sworn in at that point, howis it you are going to get any evidence in? The answer is that you are not. You are going to showyour roadmap of the case to the judge, and wait to put in evidence during the second stage of thetrial.

2. Keep It Short and Simple

Did you see that opening statement written above? That is one of the best openingstatements, ever. It tells the court what the case is about and what it should be looking for as theevidence comes in. Don’t turn this into a soap opera, don’t get into who said what to whom andwhy you think that the tenant doesn’t like you. If you do all that, the judge isn’t going to like you.Stick to the facts.

B. Presentation of Evidence

Evidence needs to be introduced through what is called a proponent of the evidence. That isa witness who has personal knowledge of what Exhibit A is and how it relates to the case. If youare testifying, you can introduce evidence and lay the proper foundation for it by telling the Court:“Your honor, here is the check that the tenant gave me. As you can see from the lease attached tomy petition for release of rental escrow amounts, the rent is due by the fifth of each month. Buthere is a check for August from the tenant, and it is dated August 14.

C. Closing Arguments

Now is when you can finally argue. Now is when you can get up and tell the judge that thewitnesses for the other side weren’t telling the truth. Now is the time for you to thunder away at theother side’s duplicity and…. STOP.

I hope you realized while reading those words that this is no way to conduct a closingargument in a rent escrow release hearing. Rather, the way to go is to calmly point out what otherpeople said, and how the evidence shows that they weren’t being honest. Remember to go back toyour road map from the opening argument and show how the evidence lines up neatly with yourroadmap.

D. Scoring Points

You aren’t going to see much from the judge when you score an important point. The judgeisn’t going to stand up and yell, “Give ‘em hell, would be counselor!” You are going to get a judgesitting there stone faced, looking asleep but for the fact that his eyes are open. Judges wear robes tomask their body language. They keep their faces impassive because around juries (and there won’tbe one in your case, but the judges are in the habit) they don’t want the jury to focus on the judgeregarding important issues.

Here is how you will know that the you have just scored a big point. The judge will lookdown for an instant and scribble a note on his/her legal pad. Then the judge will look back up,without changing expression, and wait for your next statement. That’s it. Get used to a lack ofdrama. You have to remember that you are there to win, not to put on a virtuoso performance.

E. Delay in Ruling

You should also prepare yourself for the very likely eventuality that the judge or magistratehearing the case will not rule at the end of the case. He or she may very well thank both sides forcoming in and presenting evidence and tell all assembled that the matter will be taken underadvisement and that they will be notified by mail of the decision. So don’t expect to walk out of thecourt with any decision, let alone a favorable one, on the day of the trial.

F. Delay in Proceedings

I have often told clients that as a lawyer I can slow things down, but I can’t speed them up.Motions for continuances are almost as common as Entries granting them. You should expect thatthe first trial date will be continued (though you must always be fully prepared to go forward forevery court date). The other side in a case always seems to want a continuance, to moreannoyingly, always seems to get one. Don’t let it get to you. Expect delay and you won’t befrustrated.

Chapter 6: The Filings

There are two ways that attorneys around Ohio go about getting Rent Escrows released. Thefirst is by simply filing a motion under the case number that the tenant established upon filing forthe escrow in the first place. It the motion is unopposed, or unopposed by an attorney, this is oftensufficient, and a quick way to get the money out of the clerk of court’s hands and back into yours.

But beware. The statute does require that for the release of rent, the landlord must file apetition under its own case number, naming the tenant (and if you are looking to make things run assmoothly as possible, the clerk of courts) as defendants in the action. That costs more money, andmakes it so that the tenant will be more likely to respond and argue, and it slows the matter downquite a bit, but in the end, I think it may be the safer, though slower way to proceed. There is caselaw to support this as well.

If you are dealing with a small amount of money and a tenant who knows very little aboutthe law, the first method, simply filing a motion to release, might be the best way to go. But if therent has been building up in escrow for quite some time and you are facing a sophisticated tenant,then you may want to use the second method with is safer and surer.

I have enclosed here a model filing for both ways of doing it, and you can pick the one thatyou and your attorney think best to use.

METHOD ONE

Read through this motion first, and erase the sections which do not apply to you. Of the ones whichdo apply to you, fill in the amounts and other information where you see the brackets (taking out thebrackets as you do so). For the sake of neatness and avoiding confusion, renumber the sections sothat they are in the proper order after you have erased the sections which are inapplicable to yoursituation.

Obviously you will have to change the categorized names herein to match up with your real lifesituation.

IN THE MUNICIPAL COURT OF FRANKLIN COUNTY, OHIOCIVIL DIVISION

Larry Landlord : Case No.123 East Main StreetColumbus, Ohio 43215 : Judge:

Plaintiff, : Magistrate:

v. : Petition to Release Escrowed

Thomas Tenant : Rent456 West High StreetColumbus, Ohio 43215 :

Defendant. :

And :

Cathy D. Clerk :Clerk of Courts789 North Court Street :Columbus, Ohio, 43215

:Defendant

:

PETITION FOR RELEASE OF ESCROWED RENT

1. Plaintiff Larry Landlord is the [owner or rental manager] of the property located at 456

West High Street, Columbus, Ohio 43215 (hereinafter “The Apartment”).

2. Defendant Thomas Tenant is a tenant at the The Apartment.

3. On or about June 1, 2008, Defendant Tenant tendered June 2008’s rent to Defendant

Cathy D. Clerk, the Clerk of Courts, who accepted such rent pursuant to Ohio Revised

Code Section 5321.07.

4. That escrow account is Case No. [08 CVR 12345].

5. Plaintiff now brings this action for release of escrowed rent pursuant to Ohio Revised

Code Section 5321.

Wherefore, Plaintiff requests that this Court terminate the rental escrow in Case No. [08

CVR 12345] and order the Defendant Cathy D. Clerk to turn over the escrowed rent to the

Plaintiff.

Respectfully submitted,

______________________________Larry Landlord123 East Main StreetColumbus, Ohio 43215(614) 111-1111Plaintiff Pro Se


Larry Landlord : Case No.

Plaintiff, : Judge:

vs. : Magistrate:

Thomas Tenant, et al., : Plaintiff’s Memo In Support of

Defendants. : Petition to Release Escrowed Rents

PLAINTIFF’S MEMORANDUM IN SUPPORT OF PETITION TO RELEASE ESCROWEDRENTS

I. Introduction and Factual Background

This matter arises out of a [written or oral] contract between the parties to this litigation for

the rental of the residence at [address] (hereinafter “The Apartment”). A true and accurate copy of

the lease agreement for The Apartment is attached hereto as Exhibit A [if the contract was in fact,

written].

On [date], Thomas Tenant (hereinafter “Defendant”) provided a notice to [Larry Landlord]

(hereinafter “Plaintiff”) alleging issues with The Apartment. A true and accurate copy of that notice

is attached hereto as Exhibit B. Specifically, Defendant alleges that: [list items]. On [date],

Defendant escrowed his rent with the clerk of courts.

I. Law and Argument

A. Introduction to the Law

1. Landlords Duties Under Ohio Revised Code Section 5321.04

Ohio Revised Code Section 5321.04 lays out the duties of a landlord to a tenant of

residential property in the State of Ohio.

2. Landlord’s Duties Under Ohio Revised Code Section 5321.07

Ohio Revised Code Section 5321.07 provides tenants with certain statutory remedies upon a

violation of the landlord’s duties under R.C. 5321.04. R.C. 5321.07 states in pertinent part as

follows:

(A) If a landlord fails to fulfill any obligation imposed upon him by section 5321.05of the Revised Code, other than the obligation specified in division (A)(9) of thatsection, or any obligation imposed upon him by the rental agreement, if theconditions of the residential premises are such that the tenant reasonably believesthat a landlord has failed to fulfill any such obligations, or if a governmental agencyhas found that the premises are not in compliance with building, housing, health, orsafety codes that apply to any condition of the premises that could materially affectthe health and safety of an occupant, the tenant may give notice in writing to thelandlord, specifying the acts, omissions, or code violations that constitutenoncompliance. The notice shall be sent to the person or place where rent is normallypaid.

(B) If a landlord receives the notice described in division (A) of this section and afterreceipt of the notice fails to remedy the condition within a reasonable timeconsidering the severity of the condition and the time necessary to remedy it, orwithin thirty days, whichever is sooner, and if the tenant is current in rent paymentsdue under the rental agreement, the tenant may do one of the following:






3. Landlord’s Right to Full Release under R.C. 5321.09

Ohio Revised Code Section 5321.09 covers the process a landlord must take when he or she

seeks release of the rent escrowed with the clerk of courts. It states in pertinent part as follows:






(C) If the court finds that there was no violation of any obligation imposed upon thelandlord by section 5321.04 of the Revised Code, other than the obligation specifiedin division (A)(9) of that section, any obligation imposed upon him by the rentalagreement, or any obligation imposed upon him by any building, housing, health, or

safety code, that the condition contained in the notice given pursuant to division (A)of section 5321.07 of the Revised Code has been remedied, that the tenant did notcomply with the notice requirement of division (A) of section 5321.07 of the RevisedCode, or that the tenant was not current in rent payments at the time the tenantinitiated rent deposits with the clerk of court under division (B)(1) of section 5321.07of the Revised Code, the court shall order the release to the landlord of rent ondeposit with the clerk, less costs.

(D) If the court finds that the condition contained in the notice given pursuant todivision (A) of section 5321.07 of the Revised Code was the result of an act oromission of the tenant, or that the tenant intentionally acted in bad faith inproceeding under section 5321.07 of the Revised Code, the tenant shall be liable fordamages caused to the landlord and costs, together with reasonable attorney's fees ifthe tenant intentionally acted in bad faith.

Ohio’s Eighth District Court of Appeals has held that in enacting R.C. § 5321.09 the

legislature realized that protracted litigation on the issue could seriously impair the landlord's ability

to meet financial obligations and customary costs of operating premises as a rental unit and so

provision was made in R.C. § 5321.10 for temporary relief. Blum v. Pennington, 1981 Ohio App.

LEXIS 13974 (February 5, 1981) Cuyahoga Co. App. No. 42422, a copy of which is attached

hereto.

4. Landlord’s Right to Partial Release under R.C. 5321.10

Ohio Revised Code Section 5321.10 allows a landlord to petition the court for a partial

release of the escrowed rent if certain conditions are met. The statute states as follows:


(B) In determining whether to release rent for the payments described in division (A)of this section, the court shall consider the amount of rent the landlord receives fromother rental units in the buildings of which the residential premises are a part, thecost of operating those units, and the costs which may be required to remedy the

condition contained in the notice given pursuant to division (A) of section 5321.07 ofthe Revised Code.

B. Bases for Release of Escrow to Plaintiff

1. R.C. 5321.07 Inapplicable to Plaintiff

Ohio Revised Code Section 5321.07 contains an exception for landlords who own three or

fewer rental units and who disclose this fact to their tenants either in the written lease agreement, or

in a separate writing in the case of an oral lease. The lease agreement between Plaintiff and

Defendant clearly recites on page [] that the Plaintiff owns three or fewer rental units. A true and

accurate copy of this lease agreement between Plaintiff and Defendants is attached hereto as Exhibit

[C]. Plaintiff in fact owns three or fewer rental units. See Affidavit of Plaintiff Paragraph []. Thus,

since the statute allowing the rental escrow does not permit escrow against this particular landlord,

the escrow is improper and full release of the escrowed amounts must be made to the Plaintiff.

2. Defendant Did Not Give Sufficient Notice

R.C. 5321.07 requires the Defendant in this case to give 30 days notice or a reasonable time,

whichever is sooner, of the problem(s) of which he or she complains. In this case, the Defendant

first provided Notice to Plaintiff of the alleged problems with the Apartment on [date]. This

provided insufficient time (only [] days) for the Plaintiff to take actions to inspect and/or repair the

problems of which the Defendant complained.

In the case of Antara v. Wyandot Square Apartments, 1997 Ohio App. LEXIS 1602 (April

15, 2007) Crawford Co. App. No.s 3-96-29 and 3-96-30 unreported, a copy of which is attached

hereto, the trial court released the rent to the landlord even though the landlord never filed a motion

for the release of the escrowed rent. The tenant appealed, but Ohio’s Third District Court of

Appeals upheld the ruling of the trial court.

The Court reasoned that the first written notice received by landlord came with the copies of

the application to deposit rent with the court. Since “the statute specifically states that if the court

finds that the tenants did not give proper notice or were not current with their rent payments, then

the funds should be released”, this “outcome is necessary because failure to comply with the

requirements of R.C. 5321.07 voids the tenant's right to place the funds in escrow.” Thus a tenant

who provides the landlord with only six days to fix several problems has not provided sufficient

notice of the problem to exercise the remedies of Ohio Revised Code Section 5321.07.

Since the Defendant has provided only [] days notice to the Plaintiff to fix [] problems, some

of which require inspections to get estimates from third party contractors to fix, insufficient notice

has been provided in this case and the Court should release the escrowed rental funds to the Plaintiff

because of the Defendant’s failure to comply with the requirements of the statute.

3. Defendant Not Current on Rent at Time of Escrow

Ohio Revised Code Section 5321.07 requires that the tenant must be current on his or her

rental obligations in order to make use of the remedies provided therein. The Defendant in this case

escrowed his rent on [date]. On that date, it is clear that the Defendant was not current on his rental

obligations. Exhibit A is a true and accurate copy of the rent ledger recording all payments made by

the Defendant and the dates they were made. See Affidavit of [Larry Landlord], Paragraph []. As

can be seen from the ledger, Defendant failed to pay the rent for []. At the time Defendant

escrowed the rent, he owed [amount] to the Plaintiff.

Since Defendant was not current on his rent at the time he exercised his remedies under R.C.

5321.07, he has failed to comply with the terms of the statute and the escrowed rent should be

released to the Plaintiff.

4. Defendant Not Presently Current on Rental Obligation


rental obligations in order to make use of the remedies provided therein. A true and accurate copy

of the lease agreement between the parties has been attached as Exhibit [C]. The lease agreement

provides that rent must be paid by the [] day of each month. The records of this court in Case No.

2007 CVR 111111 indicate that the Defendant [paid the rent for the month of [], 2007 on the [] day

of [], 2007] and/or [paid a check for insufficient funds to the Court on [date] and/or did not pay the

full amount due and owing for the month of [].]

In order to continue the escrow of the rent, the statute requires that the tenant be current in

such payments. The evidence in this case indicates that the tenant was not current on the rent

payments as of [date]. Thus, the escrowed rent must be released to the Plaintiff.

5. Defendant No Longer Residing at The Apartment

On [date], Defendant moved out of The Apartment. See Affidavit of [Larry Landlord],

Paragraph []. Ohio Revised Code Section 5321.01 lays out the definitions to be used in the

interpretation of Ohio Revised Code’s various sub chapters. R.C. 5321.01(A) defines a tenant as

follows:

(A) "Tenant" means a person entitled under a rental agreement to the use andoccupancy of residential premises to the exclusion of others.

Ohio’s Tenth District Court of Appeals addressed a case in which the tenants argued that the

rent should remain escrowed, even though there was no evidence in the record that they were

residents at the rented premises. The Tenth District Court held that once the tenants moved out,

their claims to keep the rent in escrow were moot. Weibling v. Rine, 1977 Ohio App. LEXIS 7537

(August 30, 1977) Franklin Co. App. No. 77AP-355 unreported (a copy of which is attached

hereto). The Court reasoned that:

There is no indication in the complaint as to whether the landlord-tenant relationshipbetween defendant and plaintiffs still existed at the time of the filing of the complaintherein. If it no longer exists, it is difficult to conceive of any interest that plaintiffsmay continue to have with respect to the rent. Their right to such rent deposited withthe Clerk of the Municipal Court would be no greater than with respect to rent paiddirectly to the landlord. The rent belongs to the landlord, not the tenant. There is noprovision in R.C. Chapter 5321, or otherwise in the law, giving the right to the rentsto property to the tenant, rather than the landlord, which, of necessity, would be aprerequisite to any recovery by plaintiffs herein. Weibling v. Rine, 1977 Ohio App.LEXIS 7537 (August 30, 1977) Franklin Co. App. No. 77AP-355 unreported at 2-3.

This is because rent “deposited with the Clerk of the Municipal Court pursuant to R.C.

5321.07(B) may be utilized for only two purposes: (1) payment to the landlord in accordance with

R.C. 5321.09, or (2) to remedy the condition of which the tenant complains in accordance with R.C.

5321.07(A).” Weibling at 3. Since Defendant is no longer a person entitled to occupy The

Apartment, he no is no longer a tenant as that term is defined under Ohio Revised Code 5321.

Since R.C. 5321.07 applies to “tenants” it does not apply to Defendant. As such, the escrowed rent

must be released to the Plaintiff.

5. Conditions Remedied

Defendant has complained about the following conditions said to exist at The Apartment:

[List all of Defendant’s Complaints]

On [date] all of these conditions were either remedied by the Plaintiff or found not to have

existed in the first place. See Affidavit of [Larry Landlord], Paragraph []. Now that these

conditions have been remedied, there is no basis for the continuing of the rental escrow, and the

amounts held therein should be released to the Plaintiff.

6. Partial Release of Rent to Meet Mortgage Obligations

Ohio Revised Code Section 5321.10 states that the court may, during the pendency of the

action, upon application of the landlord, release part of the rent on deposit for payment of the

periodic interest on a mortgage on the premises, the periodic principal payments on a mortgage on

the premises, the insurance premiums for the premises, real estate taxes on the premises, utility

services, repairs, and other customary and usual costs of operating the premises as a rental unit.

The statute goes on to state that in determining whether to release rent for the payments described in

division (A) of R.C. 5321.10, the court shall consider the amount of rent the landlord receives from

other rental units in the buildings of which the residential premises are a part, the cost of operating

those units, and the costs which may be required to remedy the condition contained in the notice

given pursuant to division (A) of section 5321.07 of the Revised Code.

In this matter, the amount of rent received from the rental of these premises is [] per month.

The costs of operating the property are as follows: the monthly mortgage payment on the rented

premises is []. This figure includes taxes and insurance [if not find out what these costs are and

supply them]. Plaintiff also must pay [] in average monthly repair costs. In particular, repairs in the

amount of [] are needed to remedy [the condition] at the premises. A true and accurate copy of an

estimate regarding this repair is attached hereto. Plaintiff also, pursuant to the lease agreement must

pay the following monthly costs [utilities, landscaping, any monthly costs you may have].

III. Conclusion

For the foregoing reasons, the Plaintiff requests that the Court, within 60 days as required by

Ohio Revised Code Section 5321 order the Clerk of courts to release the escrowed rent in the

amount(s) argued above to the Plaintiff.


____________________________________Larry Landord123 East Main StreetColumbus, Ohio 43221614.111.1111.Plaintiff Pro Se.

AFFIDAVIT OF LARRY LANDLORD

STATE OF OHIO )) SS:

COUNTY OF ___________ )

Larry Landlord, first being duly sworn according to law, deposes and says as follows:

1. That I am over the age of 18 and competent to testify in this matter.

2. That I have personal knowledge of the facts within this affidavit

3. That I am the Plaintiff in this lawsuit.

4. That I am the [owner or rental manager] of the residential property located at 456 West

5. That attached Exhibit [] is a true and accurate copy of the lease agreement I signed with

Defendant Thomas Tenant.

6. [in the alternative to paragraph four] That Defendant Thomas Tenant and I have an oral

lease agreement requiring Defendant Tenant to pay [] per month in rent by the [] day of each

month.

7. That Defendant Thomas Tenant has been escrowing the rent with the Clerk of Courts

starting on [date].

8. That Defendant Tenant has complained of the following problems at the rented premises:

[list them].

9. [Note: Select only the factual situations applicable to you] That I am the [owner or rental

manager] of three or fewer rental units and that I disclosed this fact in writing to the tenant

in the written lease agreement I signed with the Defendant.



in writing to the Defendant when were entered into our oral agreement for the rented

premises.

11. [Note: Select only the factual situations applicable to you] That Defendant first provided

Notice to me of the alleged problems with the Apartment on [date].

12. [Note: Select only the factual situations applicable to you] This provided insufficient time

(only [] days) for me to take actions to inspect and/or repair the problems of which the

Defendant complained.

13. [Note: Select only the factual situations applicable to you] That of these problems, the

following problems did not exist: [list certain ones falling in this category].


following problems have been remedied: [list certain ones falling in this category].

15. [Note: Select only the factual situations applicable to you] That at the time that Defendant

Tenant began escrowing the rent, he was not current on his rental obligations to me.

16. [Note: Select only the factual situations applicable to you] That at the present time,

Defendant Tenant is not current on his rental obligation.

17. [Note: Select only the factual situations applicable to you] That at the time that Defendant

Tenant began to escrow the rent, he was no longer a tenant at [456 West High Street].

18. [Note: Select only the factual situations applicable to you] The amount of rent received

from the rental of these premises is [] per month.

19. [Note: Select only the factual situations applicable to you] The costs of operating the

property are as follows: the monthly mortgage payment on the rented premises is []. This

figure includes taxes and insurance [if not find out what these costs are and supply them].

20. [Note: Select only the factual situations applicable to you] That I also must pay [] in

average monthly repair costs.

21. [Note: Select only the factual situations applicable to you] In particular, repairs in the

amount of [] are needed to remedy [the condition] at the premises.

22. [Note: Select only the factual situations applicable to you] A true and accurate copy of an

estimate regarding this repair is attached hereto.

23. I also, pursuant to the lease agreement must pay the following monthly costs [utilities,

landscaping, any monthly costs you may have].

24. That without release of the escrowed rent, I cannot remedy the condition of which

Defendant Tenant complains.

25. Further, Affiant Sayeth Naught

______________________________Larry Landlord

Sworn to before me and subscribed in my presence this____ day of October, 2008.

______________________________Notary Public, State of Ohio

METHOD TWO

Read through this motion first, and erase the sections which do not apply to you. Of the ones whichdo apply to you, fill in the amounts and other information where you see the brackets (taking out thebrackets as you do so). For the sake of neatness and avoiding confusion, renumber the sections sothat they are in the proper order after you have erased the sections which are inapplicable to yoursituation.

Obviously you will have to change the categorized names herein to match up with your real lifesituation.


Thomas Tenant : Case No.456 West High StreetColumbus, Ohio 43215 : Judge:

Petitioner/Tenant, : Magistrate:

v. : Petition to Release Escrowed

Larry Landlord : Rent123 East Main StreetColumbus, Ohio 43215 :

Respondent/Landlord. :

PETITION TO RELEASE ESCROWED RENT

Now comes Respondent, Larry Landlord, and moves this Court to release the escrow of rent

held by the Franklin County Clerk of Court in Case No. 2007 CVR 111111. For the reasons more

fully stated in the Memorandum in Support below, this Court should release this escrowed rent to

Plaintiff.


____________________________________Larry Landlord123 East Main StreetColumbus, Ohio 43215(614) 111-1111

Respondent Pro Se

Memorandum in Support

I. Introduction and Factual Background

This matter arises out of a [written or oral] contract between the parties to this litigation for

the rental of the residence at [address] (hereinafter “The Apartment”). A true and accurate copy of

the lease agreement for The Apartment is attached hereto as Exhibit A [if the contract was in fact,

written].

On [date], Thomas Tenant (hereinafter “Petitioner”) provided a notice to [Larry Landlord]

(hereinafter “Respondent”) alleging issues with The Apartment. A true and accurate copy of that

notice is attached hereto as Exhibit B. Specifically, Petitioner alleges that: [list items]. On [date],

Petitioner escrowed his rent with the clerk of courts.

I. Law and Argument

A. Introduction to the Law

1. Landlords Duties Under Ohio Revised Code Section 5321.04

Ohio Revised Code Section 5321.04 lays out the duties of a landlord to a tenant of

residential property in the State of Ohio.

2. Landlord’s Duties Under Ohio Revised Code Section 5321.07

Ohio Revised Code Section 5321.07 provides tenants with certain statutory remedies upon a

violation of the landlord’s duties under R.C. 5321.04. R.C. 5321.07 states in pertinent part as

follows:

(A) If a landlord fails to fulfill any obligation imposed upon him by section 5321.05of the Revised Code, other than the obligation specified in division (A)(9) of thatsection, or any obligation imposed upon him by the rental agreement, if theconditions of the residential premises are such that the tenant reasonably believesthat a landlord has failed to fulfill any such obligations, or if a governmental agency

has found that the premises are not in compliance with building, housing, health, orsafety codes that apply to any condition of the premises that could materially affectthe health and safety of an occupant, the tenant may give notice in writing to thelandlord, specifying the acts, omissions, or code violations that constitutenoncompliance. The notice shall be sent to the person or place where rent is normallypaid.

(B) If a landlord receives the notice described in division (A) of this section and afterreceipt of the notice fails to remedy the condition within a reasonable timeconsidering the severity of the condition and the time necessary to remedy it, orwithin thirty days, whichever is sooner, and if the tenant is current in rent paymentsdue under the rental agreement, the tenant may do one of the following:






3. Landlord’s Right to Full Release under R.C. 5321.09

Ohio Revised Code Section 5321.09 covers the process a landlord must take when he or she

seeks release of the rent escrowed with the clerk of courts. It states in pertinent part as follows:






(C) If the court finds that there was no violation of any obligation imposed upon thelandlord by section 5321.04 of the Revised Code, other than the obligation specifiedin division (A)(9) of that section, any obligation imposed upon him by the rentalagreement, or any obligation imposed upon him by any building, housing, health, orsafety code, that the condition contained in the notice given pursuant to division (A)of section 5321.07 of the Revised Code has been remedied, that the tenant did notcomply with the notice requirement of division (A) of section 5321.07 of the RevisedCode, or that the tenant was not current in rent payments at the time the tenantinitiated rent deposits with the clerk of court under division (B)(1) of section 5321.07of the Revised Code, the court shall order the release to the landlord of rent ondeposit with the clerk, less costs.

(D) If the court finds that the condition contained in the notice given pursuant todivision (A) of section 5321.07 of the Revised Code was the result of an act oromission of the tenant, or that the tenant intentionally acted in bad faith inproceeding under section 5321.07 of the Revised Code, the tenant shall be liable for

damages caused to the landlord and costs, together with reasonable attorney's fees ifthe tenant intentionally acted in bad faith.

Ohio’s Eighth District Court of Appeals has held that in enacting R.C. § 5321.09 the

legislature realized that protracted litigation on the issue could seriously impair the landlord's ability

to meet financial obligations and customary costs of operating premises as a rental unit and so

provision was made in R.C. § 5321.10 for temporary relief. Blum v. Pennington, 1981 Ohio App.

LEXIS 13974 (February 5, 1981) Cuyahoga Co. App. No. 42422, a copy of which is attached

hereto.

4. Landlord’s Right to Partial Release under R.C. 5321.10

Ohio Revised Code Section 5321.10 allows a landlord to petition the court for a partial

release of the escrowed rent if certain conditions are met. The statute states as follows:


(B) In determining whether to release rent for the payments described in division (A)of this section, the court shall consider the amount of rent the landlord receives fromother rental units in the buildings of which the residential premises are a part, thecost of operating those units, and the costs which may be required to remedy thecondition contained in the notice given pursuant to division (A) of section 5321.07 ofthe Revised Code.

B. Bases for Release of Escrow to Respondent

1. R.C. 5321.07 Inapplicable to Respondent

Ohio Revised Code Section 5321.07 contains an exception for landlords who own three or

fewer rental units and who disclose this fact to their tenants either in the written lease agreement, or

in a separate writing in the case of an oral lease. The lease agreement between Plaintiff and

Defendant clearly recites on page [] that the Respondent owns three or fewer rental units. A true

and accurate copy of this lease agreement between Respondent and Petitioners is attached hereto as

Exhibit [C]. Respondent in fact owns three or fewer rental units. See Affidavit of Plaintiff

Paragraph []. Thus, since the statute allowing the rental escrow does not permit escrow against this

particular landlord, the escrow is improper and full release of the escrowed amounts must be made

to the Respondent.

2. Petitioner Did Not Give Sufficient Notice

R.C. 5321.07 requires the Petitioner in this case to give 30 days notice or a reasonable time,

whichever is sooner, of the problem(s) of which he or she complains. In this case, the Petitioner

first provided Notice to Respondent of the alleged problems with the Apartment on [date]. This

provided insufficient time (only [] days) for the Respondent to take actions to inspect and/or repair

the problems of which the Petitioner complained.

In the case of Antara v. Wyandot Square Apartments, 1997 Ohio App. LEXIS 1602 (April

15, 2007) Crawford Co. App. No.s 3-96-29 and 3-96-30 unreported, a copy of which is attached

hereto, the trial court released the rent to the landlord even though the landlord never filed a motion

for the release of the escrowed rent. The tenant appealed, but Ohio’s Third District Court of

Appeals upheld the ruling of the trial court.

The Court reasoned that the first written notice received by landlord came with the copies of

the application to deposit rent with the court. Since “the statute specifically states that if the court

finds that the tenants did not give proper notice or were not current with their rent payments, then

the funds should be released”, this “outcome is necessary because failure to comply with the

requirements of R.C. 5321.07 voids the tenant's right to place the funds in escrow.” Thus a tenant

who provides the landlord with only six days to fix several problems has not provided sufficient

notice of the problem to exercise the remedies of Ohio Revised Code Section 5321.07.

Since the Petitioner has provided only [] days notice to the Respondent to fix [] problems,

some of which require inspections to get estimates from third party contractors to fix, insufficient

notice has been provided in this case and the Court should release the escrowed rental funds to the

Respondent because of the Petitioner’s failure to comply with the requirements of the statute.

3. Petitioner Not Current on Rent at Time of Escrow


rental obligations in order to make use of the remedies provided therein. The Petitioner in this case

escrowed his rent on [date]. On that date, it is clear that the Defendant was not current on his rental

obligations. Exhibit A is a true and accurate copy of the rent ledger recording all payments made by

the Petitioner and the dates they were made. See Affidavit of [Larry Landlord], Paragraph []. As

can be seen from the ledger, Petitioner failed to pay the rent for []. At the time Petitioner escrowed

the rent, he owed [amount] to the Respondent.

Since Petitioner was not current on his rent at the time he exercised his remedies under R.C.

5321.07, he has failed to comply with the terms of the statute and the escrowed rent should be

released to the Respondent.

4. Petitioner Not Presently Current on Rental Obligation


rental obligations in order to make use of the remedies provided therein. A true and accurate copy

of the lease agreement between the parties has been attached as Exhibit [C]. The lease agreement

provides that rent must be paid by the [] day of each month. The records of this court in Case No.

2007 CVR 111111 indicate that the Petitioner [paid the rent for the month of [], 2007 on the [] day

of [], 2007] and/or [paid a check for insufficient funds to the Court on [date] and/or did not pay the

full amount due and owing for the month of [].]

In order to continue the escrow of the rent, the statute requires that the tenant be current in

such payments. The evidence in this case indicates that the tenant was not current on the rent

payments as of [date]. Thus, the escrowed rent must be released to the Respondent.

5. Petitioner No Longer Residing at The Apartment

On [date], Petitioner moved out of The Apartment. See Affidavit of [Larry Landlord],

Paragraph []. Ohio Revised Code Section 5321.01 lays out the definitions to be used in the

interpretation of Ohio Revised Code’s various sub chapters. R.C. 5321.01(A) defines a tenant as

follows:

(A) "Tenant" means a person entitled under a rental agreement to the use andoccupancy of residential premises to the exclusion of others.

Ohio’s Tenth District Court of Appeals addressed a case in which the tenants argued that the

rent should remain escrowed, even though there was no evidence in the record that they were

residents at the rented premises. The Tenth District Court held that once the tenants moved out,

their claims to keep the rent in escrow were moot. Weibling v. Rine, 1977 Ohio App. LEXIS 7537

(August 30, 1977) Franklin Co. App. No. 77AP-355 unreported (a copy of which is attached

hereto). The Court reasoned that:

There is no indication in the complaint as to whether the landlord-tenant relationshipbetween defendant and plaintiffs still existed at the time of the filing of the complaintherein. If it no longer exists, it is difficult to conceive of any interest that plaintiffsmay continue to have with respect to the rent. Their right to such rent deposited withthe Clerk of the Municipal Court would be no greater than with respect to rent paiddirectly to the landlord. The rent belongs to the landlord, not the tenant. There is noprovision in R.C. Chapter 5321, or otherwise in the law, giving the right to the rentsto property to the tenant, rather than the landlord, which, of necessity, would be aprerequisite to any recovery by plaintiffs herein. Weibling v. Rine, 1977 Ohio App.LEXIS 7537 (August 30, 1977) Franklin Co. App. No. 77AP-355 unreported at 2-3.

This is because rent “deposited with the Clerk of the Municipal Court pursuant to R.C.

5321.07(B) may be utilized for only two purposes: (1) payment to the landlord in accordance with

R.C. 5321.09, or (2) to remedy the condition of which the tenant complains in accordance with R.C.

5321.07(A).” Weibling at 3. Since Petitioner is no longer a person entitled to occupy The

Apartment, he no is no longer a tenant as that term is defined under Ohio Revised Code 5321.

Since R.C. 5321.07 applies to “tenants” it does not apply to Petitioner. As such, the escrowed rent

must be released to the Respondent.

5. Conditions Remedied

Petitioner has complained about the following conditions said to exist at The Apartment:

On [date] all of these conditions were remedied by the Respondent. See Affidavit of [Larry

Landlord], Paragraph []. Now that these conditions have been remedied, there is no basis for the

continuing of the rental escrow, and the amounts held therein should be released to the Respondent.

6. Partial Release of Rent to Meet Mortgage Obligations

Ohio Revised Code Section 5321.10 states that the court may, during the pendency of the

action, upon application of the landlord, release part of the rent on deposit for payment of the

periodic interest on a mortgage on the premises, the periodic principal payments on a mortgage on

the premises, the insurance premiums for the premises, real estate taxes on the premises, utility

services, repairs, and other customary and usual costs of operating the premises as a rental unit.

The statute goes on to state that in determining whether to release rent for the payments described in

division (A) of R.C. 5321.10, the court shall consider the amount of rent the landlord receives from

other rental units in the buildings of which the residential premises are a part, the cost of operating

those units, and the costs which may be required to remedy the condition contained in the notice

given pursuant to division (A) of section 5321.07 of the Revised Code.

In this matter, the amount of rent received from the rental of these premises is [] per month.

The costs of operating the property are as follows: the monthly mortgage payment on the rented

premises is []. This figure includes taxes and insurance [if not find out what these costs are and

supply them]. Respondent also must pay [] in average monthly repair costs. In particular, repairs in

the amount of [] are needed to remedy [the condition] at the premises. A true and accurate copy of

an estimate regarding this repair is attached hereto. Respondent also, pursuant to the lease

agreement must pay the following monthly costs [utilities, landscaping, any monthly costs you may

have].

III. Conclusion

For the foregoing reasons, the Plaintiff requests that the Court, within 60 days as required by

Ohio Revised Code Section 5321 order the Clerk of courts to release the escrowed rent in the

amount(s) argued above to the Respondent.


____________________________________Larry Landord123 East Main StreetColumbus, Ohio 43221614.111.1111.Respondent Pro Se.

AFFIDAVIT OF LARRY LANDLORD

STATE OF OHIO )) SS:

COUNTY OF ___________ )

Larry Landlord, first being duly sworn according to law, deposes and says as follows:

26. That I am over the age of 18 and competent to testify in this matter.

27. That I have personal knowledge of the facts within this affidavit

28. That I am the Respondent in this lawsuit.

29. That I am the [owner or rental manager] of the residential property located at 456 West

30. That attached Exhibit [] is a true and accurate copy of the lease agreement I signed with

Petitioner Thomas Tenant.

31. [in the alternative to paragraph four] That Petitioner Thomas Tenant and I have an oral lease

agreement requiring Petitioner Tenant to pay [] per month in rent by the [] day of each

month.

32. That Petitioner Thomas Tenant has been escrowing the rent with the Clerk of Courts starting

on [date].

33. That Petitioner Tenant has complained of the following problems at the rented premises:

[list them].



in the written lease agreement I signed with the Petitioner.



in writing to the Petitioner when were entered into our oral agreement for the rented

premises.

36. [Note: Select only the factual situations applicable to you] That Petitioner first provided

Notice to me of the alleged problems with the Apartment on [date].

37. [Note: Select only the factual situations applicable to you] This provided insufficient time

(only [] days) for me to take actions to inspect and/or repair the problems of which the

Petitioner complained.


following problems did not exist: [list certain ones falling in this category].


following problems have been remedied: [list certain ones falling in this category].

40. [Note: Select only the factual situations applicable to you] That at the time that Petitioner

Tenant began escrowing the rent, he was not current on his rental obligations to me.

41. [Note: Select only the factual situations applicable to you] That at the present time,

Petitioner Tenant is not current on his rental obligation.

42. [Note: Select only the factual situations applicable to you] That at the time that Petitioner

Tenant began to escrow the rent, he was no longer a tenant at [456 West High Street].

43. [Note: Select only the factual situations applicable to you] The amount of rent received

from the rental of these premises is [] per month.

44. [Note: Select only the factual situations applicable to you] The costs of operating the

property are as follows: the monthly mortgage payment on the rented premises is []. This

figure includes taxes and insurance [if not find out what these costs are and supply them].

45. [Note: Select only the factual situations applicable to you] That I also must pay [] in

average monthly repair costs.

46. [Note: Select only the factual situations applicable to you] In particular, repairs in the

amount of [] are needed to remedy [the condition] at the premises.

47. [Note: Select only the factual situations applicable to you] A true and accurate copy of an

estimate regarding this repair is attached hereto.

48. I also, pursuant to the lease agreement must pay the following monthly costs [utilities,

landscaping, any monthly costs you may have].

49. That without release of the escrowed rent, I cannot remedy the condition of which Petitioner

Tenant complains.

50. Further, Affiant Sayeth Naught

______________________________Larry Landlord

Sworn to before me and subscribed in my presence this____ day of October, 2008.

______________________________Notary Public, State of Ohio

Unreported Cases Cited in Memo (to be attached for filing)

James Weibling, et al., Plaintiffs-Appellants, v. Paul E. Rine,Defendant-Appellee

No. 77AP-355

Court of Appeals of Ohio, Tenth Appellate District, Franklin County

1977 Ohio App. LEXIS 7537

August 30, 1977

NOTICE:PURSUANT TO RULE 2(G) OF THE OHIO SUPREME COURT RULES FOR THE

REPORTING OF OPINIONS, UNPUBLISHED OPINIONS MAY BE CITED SUBJECT TOCERTAIN RESTRAINTS, LIMITATIONS, AND EXCEPTIONS.

DISPOSITION: [*1] Judgment Affirmed

COUNSEL: Mr. Arthur C. Graves and Mr. Stanley R. Stein, for Plaintiffs-Appellants

Mr. Fred E. Sams, for Defendant-Appellee

JUDGES: WHITESIDE, J., REILLY and McCORMAC, JJ., concur.

OPINION BY: WHITESIDE

OPINIONDECISION

WHITESIDE, J.Plaintiffs appeal from a judgment of the Franklin County Municipal Court and raise a single

assignment of error, as follows:"The trial court erred in dismissing the complaint of the plaintiffs and in refusing to terminate

the rent escrow of the plaintiffs."Plaintiffs' complaint filed in the Municipal Court reads in its entirety, as follows:

"1. Plaintiffs, at all relevant times, were tenants and defendant was the owner of premiseslocated at 136 Chittenden Avenue, Columbus, Ohio.

"2. Defendant was given notice from the Clerk of this Court in accordance with Section 5321.08of the Ohio Revised Code, that the plaintiffs have deposited rent due defendant with the Clerkpursuant to Chapter 5321 of the Ohio Revised Code.

"3. On the 24th day of May, 1976, the defendant filed an application in accordance with saidChapter seeking release of the rent deposits and such application was ruled upon adversely to thedefendant.

"4. [*2] A reasonable time has elapsed and defendant has failed to meet the requirements oflaw for the release of said rent deposits.

"WHEREFORE, plaintiffs pray for the release to the plaintiffs of all rent on deposit with theClerk of Courts, and for such other and further legal and equitable relief as the court may deem justand proper, and for their costs herein expended."

Apparently, plaintiffs deposited all rent due defendant from them with the Clerk of theFranklin County Municipal Court in accordance with R.C. 5321.07(B)(1). There is noindication in the complaint as to whether the landlord-tenant relationship between defendantand plaintiffs still existed at the time of the filing of the complaint herein. If it no longerexists, it is difficult to conceive of any interest that plaintiffs may continue to have with respectto the rent. Their right to such rent deposited with the Clerk of the Municipal Court would beno greater than with respect to rent paid directly to the landlord. The rent belongs to thelandlord, not the tenant. There is no provision in R.C. Chapter 5321, or otherwise in the law,giving the right to the rents to property to the tenant, rather than the [*3] landlord, which, ofnecessity, would be a prerequisite to any recovery by plaintiffs herein.

Furthermore, if plaintiffs are still tenants of defendant, R.C. 5321.07(B)(2) affords a remedy forcorrection of the conditions alleged to exist, which may include, by order of the court, the use of therent deposited to remedy the conditions complained of. Rent deposited with the Clerk of theMunicipal Court pursuant to R.C. 5321.07(B) may be utilized for only two purposes: (1) payment tothe landlord in accordance with R.C. 5321.09, or (2) to remedy the condition of which the tenantcomplains in accordance with R.C. 5321.07(A). The complaint herein fails to state a claim forrecovery of the rents deposited, there being no claim that the rents deposited were not in fact due orwere deposited by mistake. R.C. 5321.07(B)(2) also allows a tenant to apply to the court for anorder reducing the periodic rent due the landlord until the landlord remedies the conditioncomplained of, but the complaint herein does not state a claim for such relief.

Additionally, although it is alleged that the rent deposits sought to be recovered are in the handsof the Clerk of the Franklin County Municipal Court, [*4] such Clerk is not made a party to thisaction.

The trial court was correct in finding to the effect that the complaint herein does not state aclaim for relief and in dismissing the complaint for that reason. There is no merit to the assignmentof error.

For the foregoing reasons, the assignment of error is overruled, and the judgment of the FranklinCounty Municipal Court is affirmed.

RUTHE BLUM APPELLEE vs. ROBERT PENNINGTON, ET AL.APPELLANTS

NO. 42422

COURT OF APPEALS, EIGHTH APPELLATE DISTRICT,CUYAHOGA COUNTY, OHIO.


February 5, 1981

PRIOR HISTORY: [*1] APPEAL FROM CLEVELAND MUNICIPAL COURT No. CVF-1188

COUNSEL: For plaintiff-appellee: Jeffrey H. Friedman

For defendant-appellants: Theodore E. Meckler.

JUDGES: PARRINO, J., KRENZLER, J., CONCUR.

OPINION BY: CORRIGAN, P. J.

OPINIONThis cause came on to be heard upon the pleading and the transcript of the evidence and record

in the Cleveland Municipal Court, and was argued by counsel; on consideration whereof, the courtcertifies that in its opinion substantial justice has not been done the party complaining, as shown bythe record of the proceedings and judgment under review, and judgment of said ClevelandMunicipal Court is reversed. Each assignment of error was reviewed by the court and upon reviewthe following disposition made:

JOURNAL ENTRY AND OPINIONThis appeal is taken from a judgment of the Cleveland Municipal Court, entered April 22, 1980,

granting the plaintiff-appellee's Motion to Release Rents being held in the court pursuant to R.C. §5321.07.

Procedurally, the plaintiff-appellee, Ruthe Blum, as landlord of the rental property in question,filed an action for the release of rents on January 10, 1980, pursuant to R.C. § 5321.09. OnFebruary 20, 1980, [*2] the plaintiff-appellee filed a motion for the release of the rents being heldby the Court. On February 28, 1980, a motion for partial release of the funds under R.C. § 5321.10was granted by the court. In the same judgment entry, upon application of the plaintiff-appellee,the January 10, 1980 action for the release of rents, and the February 20, 1980 motion for therelease of rents were dismissed at plaintiff's costs. The defendant-appellants, (Robert Pennington, etal.), as the tenants of the rental property in question initially appealed the February 28, 1980judgment of the court, but later moved to dismiss the appeal which motion was granted on April 14,1980. At the time, under the same case number, a second motion for partial release of rents wasbefore the trial court, having been filed on March 28, 1980.

The trial court made a ruling on March 31, 1980 granting the second motion ordering the releaseof $3,013.89 in rent deposits less costs, but for reasons not disclosed, the entry was not journalizeduntil April 22, 1980. From that judgment, this present appeal was taken.

ASSIGNMENTS OF ERRORI. IT WAS ERROR FOR TRIAL COURT TO GRANT OR EVEN ENTERTAIN [*3]

PLAINTIFF'S MOTION FOR PARTIAL RELEASE OF RENTS SINCE NO § 5321.09 ACTIONWAS PENDING.

II. IT WAS ERROR FOR THE TRIAL COURT TO GRANT PLAINTIFF'S MOTION WITHOUTNOTICE TO DEFENDANTS AND WITHOUT AN OPPORTUNITY TO BE HEARD.

III. THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE FACTORSENUMERATED IN O.R.C. § 5321.10 (B).

IV. THE TRIAL COURT HAD NO JURISDICTION TO EVEN ENTERTAIN THE PLAINTIFF'SMOTION SINCE THE CASE HAD BEEN APPEALED TO THE COURT OF APPEALS.

I.In their first assignment of error, defendant-appellants argue that the trial court erred in granting

or even entertaining the plaintiff-appellee's Motion for Partial Release of Rents because there wasno R.C. § 5321.09 action pending once the appellee had dismissed her action on February 28, 1980.

R.C. § 5321.10 reads in pertinent part:(A) If a landlord brings an action for the release of rent deposited with a clerk of court, the

court may, during the pendency of the action upon application of the landlord, release part of therent on deposit for payment of the periodic interest on a mortgage on the premises, the periodicprincipal payments on a mortgage on the premises, the insurance premiums [*4] for the premises,real estate taxes on the premises, utility services, repairs, and other customary and usual costs ofoperating the premises as a rental unit. (emphasis added).

The action referred to in R.C. § 5321.10 is the one that is initiated by the landlord under R.C. §5321.09, which governs the release of all the rent deposited with the court pursuant to R.C. §5321.07. The pendency of an R.C. § 5321.09 action is a jurisdictional prerequisite for the filing ofan R.C. § 5321.10 proceeding. In the instant case, the plaintiff-appellee requested the trial court tovoluntarily dismiss the R.C. § 5321.09 action that was filed on January 10, 1980 and the requestwas granted by the trial court on February 28, 1980.

Since the trial court complied with the plaintiff-appellee's request to dismiss the original actionfollowing the partial release of rents awarded in the same February 28, 1980 judgment, defendant-appellants contend there was no longer an action pending for release of all the rents as authorized byR.C. § 5321.09. In other words, they argue that the trial court can order a partial release only on thebasis of the principal action and that in the absence [*5] of the application for the release of all therental deposits the trial court had no jurisdiction to order the second partial release pursuant to R.C.§ 5321.10.

While we hold that R.C. § 5321.10 must be read in pari materia with R.C. § 5321.09, in theinstant case the appellee-landlord after receiving the first partial release of § 2,120 was not requiredto pursue the principal action following the partial release. The balance of the rents on deposit withthe court and any subsequent payments made by the tenants would continue to be held under theprovisions of the Landlord-Tenant Act. Following the voluntary dismissal of the appellee's originalaction, however, no further partial releases of the rental deposits could be made unless another R.C.§ 5321.09 action was filed by the landlord. Accordingly, the appellants advance the argument thatthe trial court had no jurisdiction to entertain any further motion for partial release of rents after thevoluntary dismissal by appellee.

However, the appellants overlook the fact that their first appeal challenging the entire February28, 1980 judgment served to keep alive the action pending a determination in the [*6] court ofappeals. In enacting R.C. § 5321.09 the legislature realized that protracted litigation on the issuecould seriously impair the landlord's ability to meet financial obligations and customary costs ofoperating premises as a rental unit and so provision was made in R.C. § 5321.10 for temporaryrelief. Whether a partial release of the rents standing alone is a final appealable order need not beresolved in this case since the first appeal (later voluntarily dismissed by the appellants) was takenfrom the clearly final judgment of February 28, 1980. If the pendency of an R.C. § 5321.09 actionis a jurisdictional prerequisite to an R.C. § 5321.10 motion for a partial release, as we held above, itwould appear that a ruling under the latter statute would be in the nature of an interlocutory order.The possibility that the granting of partial releases might serve to nullify the purpose and intent ofthe Act by dissipating the rental deposits needed for repairs to the premises is a matter that mustawait further experience under the legislation and also possible legislative clarification.

In the instant case the appeal of the entire February 28, 1980 judgment [*7] was before thiscourt at the time the appellee filed in the trial court for a second partial release, clearly meeting therequirement of a pending action. Therefore the trial court could entertain plaintiff-appellee'saction.The first assignment of error does have merit, however, but not for the reasons advanced bythe appellants. As a matter of fact, at the time the trial court actually granted the motion there wasno action pending. The original action had been dismissed in the trial court at appellee's request onFebruary 28, 1980, but the entire judgment was appealed. When the appellant's appeal wasdismissed at their request on April 14, 1980 the original R.C. § 5321.09 action of the appellee-landlord was no longer pending. Any entry journalized by the trial court after that date would be anullity because the trial court had authority to act on the second R.C. § 5321.10 motion for partialrelease only during the pendency of the principal action.

II.In their second assignment of error, the defendant-appellants argue that the trial court erred in

granting the plaintiff's motion to partially release the rent without notice and without an opportunityto be heard.

[*8] The notion of due process which requires that opposing parties be given both notice andan opportunity to be heard is presumed in any action affecting the rights of parties. Fuentes v.Shevin (1972), 407 U.S. 67. To safeguard this basic concept of notice and an opportunity to beheard, Ohio Civil Rule 5(A) provides that "every written motion . . . shall be served upon each ofthe parties."

Since there is no clearly expressed legislative intent to the contrary in R.C. § 5321.10, we holdthat a hearing pursuant to a motion for the partial release of rent is not to be conducted ex parte.This assignment of error is therefore well taken.

III.As their third assignment of error, the defendant-appellants argue that the court erred in failing

to consider the factors enumerated in R.C. § 5321.10(B). In the absence of any transcript of theproceedings, this Court cannot determine what factors the trial court considered. It is reasonable topresume that the court reviewed the same factors considered in making the first partial release,which appellants subsequently elected not to challenge by dismissing their first appeal. However,in view of our holding [*9] on the first two assignments mandating a reversal, this Court need not

indulge in the presumption of regularity of the proceedings. The third assignment as stated, fails forlack of evidence.

IV.As their fourth assignment of error, the defendant-appellants argue that the trial court had no

jurisdiction to entertain the plaintiff's motion, since the case had been appealed to the Court ofAppeals. This particular assignment of error has been answered earlier in the discussion on the firstassignment.

Now, in the interest of clarity, a recapitulation of the entire matter will be attempted. Under theprovisions of the Landlord-Tenant Act, the appellant-tenants were permitted to deposit theirmonthly rentals with the Municipal Court and the appellee-landlord had a right to seek a release ofthe rental deposits by initiating the R.C. § 5321.09 action. While the action was pending theappellee was permitted to file a proceeding under R.C. § 5321.10 seeking a partial release of therents. The judgment in favor of the appellee was challenged by the appellants by filing the notice ofappeal. The question of whether or not the partial award was a final appealable [*10] order wasn'treached because the appeal was taken from an entry also dismissing the action. At this juncture, theappellee apparently was satisfied with the partial award and dismissed her action. The effect of theappellant's appeal served to keep the action alive.

Reading R.C. § 5321.09 and R.C. § 5321.10 together it became apparent that the principalaction was still pending at the time the appellee filed a second proceeding for a partial release underthe original case number in the Municipal Court. The appeal did not divest that court of jurisdictionover the funds on deposit or the right to release funds as long as the R.C. § 5321.09 action waspending. The sudden request for the dismissal of their first appeal by the appellants engendered arather incongruous situation. As a result of the dismissal of the first appeal of the February 28,1980 judgment, the appellee then was entitled to the release of § 2,120 out of the rent deposits andthe original R.C. § 5321.09 action was no longer a pending case as of April 14, 1980. Thejurisdiction the trial court was properly exercising in considering the second proceeding for afurther partial release was terminated with [*11] that dismissal and the attempted entry awardingthe appellee a second partial release therefore was a nullity. The trial court erred in entering theorder for the release of § 3,013.89 from the rental deposits which is the subject of the presentappeal.

The trial court judgment of April 22, 1980 is reversed and the cause remanded for proceedingsin accordance with this opinion. This cause is remanded to the Cleveland Municipal Court forfurther proceedings consistent with this opinion.

It is, therefore, considered that said appellant(s) recover of said appellee(s) their costs herein.

It is ordered that a special mandate be sent to said Court to carry this judgment into execution.A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of

Appellate Procedure. Exceptions.

CAROLYN ANATRA, PLAINTIFF-APPELLANT v. WYANDOTSQUARE APTS., DEFENDANT-APPELLEE. SHEILA HARIGLE,

PLAINTIFF-APPELLANT v. WYANDOT SQUARE APTS.,DEFENDANT-APPELLEE

CASE NO. 3-96-29, CASE NO. 3-96-30

COURT OF APPEALS OF OHIO, THIRD APPELLATE DISTRICTCRAWFORD COUNTY


April 15, 1997, DATE OF JUDGMENT ENTRIES

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PRIOR HISTORY: [*1] CHARACTER OF PROCEEDINGS: Civil appeal s fromMunicipal Court.

DISPOSITION: JUDGMENTS: Judgments affirmed.

COUNSEL: ATTORNEYS:

MR. DENNIS C. TENISON Reg. No. 0022235, Attorney at Law, Richland County LegalServices, Mansfield, Ohio 44902, For Appellant.

MR. JAY D. WAGNER, Reg. No. 0016447, Attorney at Law, 118 Harding Way West,Galion, Ohio 44833, For Appellee.

JUDGES: BRYANT, J., SHAW and HADLEY, JJ., concur.

OPINION BY: BRYANT

OPINIONOPINION

BRYANT, J. These appeals are brought by plaintiffs-appellants Carolyn Anatra andSheila Harigle (Appellants) from a judgment entered by the Crawford County MunicipalCourt in favor of Wyandot Square Apartments (Appellee).

In July of 1996, Appellants filed applications to deposit their rent with the clerkcomplaining of problems with their apartments. Attached to each application were lettersoutlining the repairs wanted. Appellants each signed the applications stating that thelandlord had received notice and they were current with their rent. Appellants paid theirrents to the court in August and September as well.

On July 8, 1996, Appellants received an eviction notice for failure to pay rent. Ahearing was held on these notices on September 10, 1996. On [*2] the day of thehearing, the trial court announced that it would proceed on the escrow suits as well. OnSeptember 13, 1996, the trial court entered judgment releasing the escrow funds toAppellee. Appellants filed motions for new trials on September 26, 1996. These motionswere denied on November 1, 1996. Appellants filed their notices of appeal on December3, 1996.

Appellants assert one assignment of error:

The trial court erred by failing to grant a new trial where the court failed to followthe requirements of R.C. 5321.07 and R.C. 5321.09 in determining rental depositcases.

R.C. 5321.07 states in pertinent part:(A) If a landlord fails to fulfill any obligation imposed upon him . . . or the conditions

of the premises are such that the tenant reasonably believes that a landlord has failed to

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fulfill any such obligations, . . . the tenant may give notice in writing to the landlord,specifying the acts, omissions, or code violations which constitute noncompliance withsuch provisions.

* * *

(B) If a landlord receives the notice . . . and after receipt of such notice fails toremedy the condition within a reasonable time considering the severity of the condition[*3] and the time necessary to remedy such condition, or within thirty days, whichever issooner, and if the tenant is current in rent payments due under the rental agreement, thetenant may do one of the following:

(1) Deposit all rent that is due and thereafter becomes due the landlord with the clerkof court of the municipal or county court having jurisdiction in the territory in which theresidential premises are located[.]

R.C. 5321.09 states in pertinent part:(A) A landlord who receives notice that rent due him has been deposited with a clerk

of court . . . may: * * *

(2) Apply to the court for release of the rent on the grounds that the tenant did notcomply with the notice requirement . . . or that the tenant was not current in rentpayments due under the rental agreement at the time the tenant initiated rent deposits withthe clerk of courts[.]

* * *(C) If the court finds that . . . the tenant did not comply with the notice requirement . .

. or that the tenant was not current in rent payments at the time the tenant initiated rentdeposits with the clerk of court . . ., the court shall order the release to the landlord of renton deposit with the clerk, less costs.

[*4] Appellants argue that the trial court could not rule on the release of the escrowfunds because the landlord did not request the release. This argument, however, ignoresthe language of R.C. 5321.09(C) and the court's inherent power to control its docket byhearing pending related matters at one hearing.

The statute specifically states that if the court finds that the tenants did not giveproper notice or were not current with their rent payments, then the funds should bereleased. This outcome is necessary because failure to comply with the requirements ofR.C. 5321.07 voids the tenant's right to place the funds in escrow.

In this case, appellants did not give proper written notice to appellee. The first writtennotice received by appellee accompanied the copies of the application to deposit rent withthe court. R.C. 5321.07 requires the tenants to give the landlord a reasonable opportunityto make the necessary corrections before depositing the rent with the court. Appellantsdid not do so. Therefore, they have not complied with the statutory requirements and maynot place the rent in escrow. Appellants' assignment of error is overruled.

The judgments of the Crawford County Municipal [*5] Court are affirmed.

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Judgments affirmed.SHAW and HADLEY, JJ., concur.

Documents

A Landlord’s Guide to Releasing Escrowed Rent in Ohioohiolandlordtenantblog.com/wp-content/uploads/2015/... · The right time to seek release of the escrow may be when your tenant’s