Landlords Corner Evictions and Unauthorized Practice of Law

    





    

 
Helps with homework, projects & tests

    

A. Right to Proceed Pro Se In Ohio, a person can always represent himself in court. This is called appearing "pro se" and is a common (though unwise) practice where very little is at stake, such as in small claims courts around the state. Why is it unwise? The two main reasons are that attorneys who regularly perform evictions will be a great deal more familiar with the ins and outs of the law than the lay person. Secondly, an attorney will see the case objectively, and a dispassionate eye is a more effective observer of events t han the landlord who may see things subjectively, having his vision clouded by emotions.
B. Representing Other Persons or Entities
But to represent another person or another entity (such as a company, a trust, or an LLC), you must be certified by the Ohio Supreme Court to practice law or you are engaging in the unauthorized practice of law. This rule affects landlords whose property is owned by a corporation or managed by a rental company. Owning a property in a corporate form has become very popular lately as a way of limiting the landlord's personal liability. This way, if the landlord is sued because of an injury at the property , the most he can lose is the value of the property (assuming his insurance isn't enough to cover it). His personal assets cannot be touched.
In the past, some landlords tried to file evictions via their employees, or tried to file the actions themselves on behalf of the corporation owning the property. They reasoned that since they were the 100 percent owners of all the shares of the corporation, they should be able to represent it in court. The problem was that these employees and corporate shareholders were not attorneys.
1. Ruling from the Ohio Supreme Court
In the case of Cleveland Bar Association v. Picklo, (2002), 96 Ohio St.3d 195, Lynn Picklo had been filing complaints in the Cleveland Municipal Court, Housing Division, for forcible entry and detainer [evictions], as well as for the recovery of past due rents. Picklo was not licensed to practice law in the state of Ohio, but she nevertheless filed these claims and appeared in court on behalf of the property owner since she was the rental manager.
Ms. Picklo argued that R.C. 1923.01(C)(2), which defines "landlord" for the purpose of invoking a county, municipal, or common pleas court's jurisdiction in most forcible entry and detainer actions as "the owner, lessor, or sublessor of the premises [or] the agent or person the landlord authorized to manage premises or to receive rent from a tenant under a rental agreement."
She also cited R.C. 5321.01(B), which, with respect to landlord-tenant remedies in general, similarly defines "landlord" as "the owner, lessor, or sublessor of residential premises, the agent of the owner, lessor, or sublessor, or any person authorized by the owner, lessor, or sublessor to manage the premises or to receive rent from a tenant under a rental agreement." She argued that since she was the rental manager, she was the "landlord" and thus was entitled to bring the lawsuit on behalf of the owne r of the property.
It was a clever argument, but in the end, it would not wash with the Ohio Supreme Court. Under the Constitutional doctrine of Separation of Powers, the Ohio Supreme Court has the inherent power to determine who can practice law before the courts of Ohio. While it was true that the Ohio Legislature passed laws in conflict with the Ohio Constitution, the Ohio Constitution wins out in the case of such conflicts. The reason for this is because the Ohio Constitution is the document that set up the Ohio Legis lature in the first place. The Ohio Legislature draws its ability to pass laws from the Ohio Constitution, and thus it cannot make laws contrary to the Ohio Constitution.
So Ms. Picklo was found to be engaging in the unauthorized practice of law, and since that time, all evictions filed by persons not the owners of the property require the services of an attorney licensed to practice in the state of Ohio.
II. Eviction Complexities
There are other good reasons to hire an attorney to do evictions, even if the property is owned in the landlord's name (thus permitting pro se representation).
A. Three Day Notice Requirement and Issues of Timing
One is the three day notice requirement. Most landlords in Ohio realize that they must post a properly worded three day notice to vacate upon the rented property before they can file an eviction. But few landlords have a good grasp of the timing issues as they apply to the calculations of the three days.
Firstly, the three days do not start to run on the day that the three day notice is posted. Secondly, any day in which the court is not open does not count as a day. Let's look at an example of how this works.
1. Example of Three Day Notice Timing
Larry Landlord has a tenant who has not paid his rent. On January 12, 2006, he posts a properly worded three day notice to vacate upon the door. The day of the posting does not count towards the three days. Friday, January 13, 2006 will be the first day of the three day period which counts. Saturday and Sunday will not count. Monday, January 16, 2006 will not count either because it is Martin Luther King Day, a national holiday upon which the court is closed. So Tuesday, January 17, 2006 will be the sec ond day, and Wednesday, January 18, 2006 will be the third day.
If Larry Landlord has an attorney, that attorney will know that the eviction cannot be filed until the next Thursday, January 19, 2006, seven days later. But if Larry does the eviction alone, he might think that filing it on Tuesday, January 17, 2006 would be fine since more than three days will have passed.
If, at the hearing, the error is pointed out by the tenant, the tenant's attorney, or noted by the court, the eviction action will have to be dismissed. All of the filing fees spent on the eviction will be lost, the eviction will have to be filed again, and the tenant will walk away from the first eviction hearing with a new found confidence that he can beat any eviction that the landlord throws at him. Better then to use an attorney and only have to handle the matter once.
B. Thirty Day's Notice Sometimes Required.
Another timing issue arises in relation to the type of breach that the landlord is alleging. If the landlord is alleging a breach of the rental contract, then all that is necessary to start the eviction process is the posting of a properly worded three day notice to vacate. But if the landlord is alleging that the tenant breached the tenant's duties under Ohio Revised Code Section 5321.05, then the landlord must first notify the tenant in writing of the problem and give the tenant 30 days to fix it. Onl y then can the three day notice be posted on the door to start the eviction process.
Some landlords have tried to be too clever by half. They have inserted the text of Ohio Revised Code 5321.05's duties of the tenant into the lease agreement word for word, which enables the argument that any breach of R.C. 5321.05 would also be a breach of the lease agreement. But Ohio courts have seen through this and ruled that if the violation is a breach of both the law and the lease, the landlord must still give the 30 day notice.
Let's look at two examples.
1. Unauthorized Dog
Larry Landlord has a lease which prohibits the tenant from having a dog. Larry finds out that the tenant is violating this portion of the lease agreement. This is not a violation of Ohio Revised Code Section 5321.05 which says nothing about dogs. Thus, Larry Landlord does not need to give 30 day's notice before posting the three day notice to vacate.
2. Unsanitary Conditions
Larry Landlord has a lease agreement which says that the tenant shall keep all plumbing fixtures (sinks, toilets, tubs, etc.) in a clean and sanitary condition. During an inspection of the rented premises, Larry notices that the tenant is living like a complete pig, and that the plumbing fixtures are in an appallingly unsanitary condition. Larry would love to post the three day notice and get the eviction process going right away. But Ohio Revised Code Section 5321.05(A)(3) imposes a duty upon the tenan t to "Keep all plumbing fixtures in the dwelling unit or used by him as clean as their condition permits . . .".
Thus the tenant is violating both the lease and R.C. 5321.05(A)(3). Ohio Revised Code Section 5321.11(A) requires 30 days written notice from the landlord to the tenant to remedy any breach of the tenant's duties under Ohio Revised Code Section 5321.05. So Larry Landlord is going to have to give 30 days written notice to the tenant before he can post the three day notice to vacate. If the tenant remedies the problem within those thirty days, then the tenant will have a defense to the eviction.
C. Tips for the Wise Landlord
So the wise landlord hires an attorney to perform all of his or her evictions. In this way you can be more certain that the eviction will be done right and that possession will be returned to you as soon as possible.
Where can you find such an attorney? There are several places. You can contact your local bar association and ask to be referred to an attorney who regularly performs evictions. If you call any large apartment complex, the rental managers there will more than likely refer you to the attorney they use. If you know an attorney personally, even if he or she does not conduct evictions, he or she will very likely know someone who does.

About The Author

Eric E. Willison and Andrew J. Ruzicho II
All article contents copyright 2006 http://www.ohiolandlordtenant.com/unauthorized_practice.html

Landlords Corner Abandonment Clauses In Leases

    





    
A. Self Help Evictions
Ohio Revised Code Section 5321.15 prohibits what are known in Ohio as self help evictions. A self help eviction is when the landlord locks the tenant out and/or disposes of the tenant's property without going through the statutory eviction process listed in Ohio Revised Code Section 1923.04. Landlords who engage in self help evictions can be found liable for actual damages (the value of the items lost) and attorneys fees.
Such landlords also face common law claims for relief sounding in conversion, trespass, and trespass to chattels. All of these are intentional torts, and at common law, can be a basis for an award of actual damages, punitive damages, and attorneys fees. Punitive damages can be in amounts which are designed by the courts to make an impression upon the landlord and dissuade the landlord from repeating such mistakes in the future. Thus if the landlord owns or manages a great deal of property, the court may award a large enough amount to make it hurt.
Thus it is clear that damages in self help eviction cases can be costly for the landlord. While tenants do face problems of proof (all of their receipts may have been destroyed along with their property) with the advent of computerization of credit card records and bank statements, it's not that hard to reconstruct the fact that certain purchases took place and for how much. Further, courts are somewhat sympathetic to the proof problems that tenants have in such situations as it was the landlord's misco nduct which gave rise to the proof problem.
Even in a case where the tenant cannot prove his or her damages, a court can still award nominal damages to the tenant. Nominal damages are important because they can serve as a basis for an award of punitive damages and/or attorneys fees to the tenant. At today's rates, the tenant's attorneys fees can be an expensive proposition.
Further, even a win in court will not be without costs for the landlord, as the landlord's counsel does not work for free, and the time spent on employee hours to prepare for the presentation of evidence and to attend hearings can be considerable.
Landlord's Corner - Abandonment clauses in leases
A. Self Help Evictions
Ohio Revised Code Section 5321.15 prohibits what are known in Ohio as self help evictions. A self help eviction is when the landlord locks the tenant out and/or disposes of the tenant's property without going through the statutory eviction process listed in Ohio Revised Code Section 1923.04. Landlords who engage in self help evictions can be found liable for actual damages (the value of the items lost) and attorneys fees.
Such landlords also face common law claims for relief sounding in conversion, trespass, and trespass to chattels. All of these are intentional torts, and at common law, can be a basis for an award of actual damages, punitive damages, and attorneys fees. Punitive damages can be in amounts which are designed by the courts to make an impression upon the landlord and dissuade the landlord from repeating such mistakes in the future. Thus if the landlord owns or manages a great deal of property, the court may award a large enough amount to make it hurt.
Thus it is clear that damages in self help eviction cases can be costly for the landlord. While tenants do face problems of proof (all of their receipts may have been destroyed along with their property) with the advent of computerization of credit card records and bank statements, it's not that hard to reconstruct the fact that certain purchases took place and for how much. Further, courts are somewhat sympathetic to the proof problems that tenants have in such situations as it was the landlord's misco nduct which gave rise to the proof problem.
Even in a case where the tenant cannot prove his or her damages, a court can still award nominal damages to the tenant. Nominal damages are important because they can serve as a basis for an award of punitive damages and/or attorneys fees to the tenant. At today's rates, the tenant's attorneys fees can be an expensive proposition.
Further, even a win in court will not be without costs for the landlord, as the landlord's counsel does not work for free, and the time spent on employee hours to prepare for the presentation of evidence and to attend hearings can be considerable.
View our Landlord's guide to Ohio landlord tenant law
B. Abandonment Clauses
In an attempt to get around these problems, landlords have inserted clauses in lease agreements which state that the tenant will be presumed to have abandoned the apartment if certain listed conditions occur. That way, they figure that if they can show the court that the listed conditions occurred, they will have a defense to the common law causes of action and the statutory violation of Ohio Revised Code Section 5321.15.
These clauses are not without their uses. Even if they are unenforceable, there is no penalty for having them in a lease in Ohio. Further, if a tenant does not know his or her rights, the clause may create a mirage defense such that a suit might be avoided if the landlord acts improperly and then points out the clause to the tenant. But in these days of readily accessible information on the internet, it is unwise to rely upon a tenant's ignorance of his or her rights.
>From the legal point of view, the real trouble with these clauses is that Ohio Revised Code Section 5321.06 prohibits the enforcement of any clause in a rental agreement which conflicts with Ohio Revised Code Section 5321.15. Further, Ohio Revised Code Section 5321.14 prohibits the enforcement of any clauses in rental agreements which a court deems unconscionable. Unconscionable clauses are those clauses which are so one sided, unfair, or overreaching that a court will not enforce them. Many abandonmen t clauses fit into this definition.
Ohio Courts have defined abandonment as the absolute unequivocal relinquishment of a right or status without regard to self or any other person. It is a virtual throwing away without regard as to who may take over or carry on. It is a total discarding of what existed or went before; and evidence thereof must be direct, affirmative or reasonably beget the exclusive inference of throwing away. Hamilton v. Harville (1989), 63 Ohio App.3d 27.
Thus to simply rely upon a clause in a lease that an apartment will be considered abandoned after the tenant has not been seen for two weeks is unwise. If a tenant is current on his rent, if the tenant's personal items are still at the rented premises, if items of value or sentimental value remain behind, this is strong evidence that the tenant was simply away and may be returning.
Remember the wording above about abandonment being an absolute unequivocal relinquishment? Now consider that abandonment is an affirmative defense for a landlord, meaning that the landlord bears the burden of proof on the issue. If you go to court and your only allies are your attorney and a piece of paper which the court may or may not enforce, you may find yourself behind the eight ball.
C. Cases Which Might Help You If You Are Behind the Eight Ball
Ohio's Fourth District Court of Appeals has upheld the enforceability of some abandonment clauses. In one case, the abandonment clause read as follows:
In the event Resident fails to remove all of their personal property from the premises upon the abandonment of the premises, Landlord may, at its option, remove all or any part of said property in any manner Landlord may choose and store the same without liability to Resident for loss or damage and Resident shall be liable to Landlord for all expenses incurred in such removal and storage of such property. For purposes of this Agreement, abandonment shall mean the Resident's apparent desertion of the pre mises. Haddox v. Moreland, 1996 Ohio App. LEXIS 3380 (August 5, 1996) Pickaway Co. App. No. 95CA20, unreported.
The Court ignored Ohio Revised Code Section 5321.13(D) which states in pertinent part as follows:
No agreement by a tenant to the exculpation or limitation of any liability of the landlord arising under law or to indemnify the landlord for that liability or its related costs shall be recognized in any rental agreement or in any other agreement between a landlord and tenant.
It is pretty clear that the clause in the contract quoted above by the Fourth District is an attempt to limit a landlord's liability. The Court was likely swayed by the fact that the tenants in this case were not very likeable persons. The facts in this case showed that the tenants had left behind three dogs, one of which was found dead, wrapped in a towel, and the other two were alive in very poor condition. So the holding in this case might not carry much persuasive weight if the tenant in your case h as not acted in such an egregious fashion.
D. Tips For The Wise Landlord
The best course of action to take when you find yourself in a situation wherein you cannot be sure whether the tenant has abandoned the place is to file an eviction with the courts and get a writ of restitution. If the bailiff conducts the set out after a properly filed eviction, there will be no liability for the landlord if he or she is sued. The money that you spend filing the eviction will likely pale in comparison to the money you spend on an attorney to defend you on a 5321.15 claim. Even in cases where you are sure that the tenant has abandoned, it is a good idea to video tape the condition of the premises so that you can show a court the conditions which led you to believe that the apartment was abandoned, as this may lead the court to the same conclusion.
The wise landlord will make a practice of having tenants sign a document stating that they have left the property voluntarily as of a certain date and that any property left behind is either not theirs or abandoned. You should also preserve any communications with the tenant such as emails or letters in which the tenant stated that he was leaving and not coming back. Making an inventory of any items left behind is not a bad idea either. Storing valuable items in a safe place for a time is also a good id ea. This may limit the damages the tenant can assert against you.
Read more on Landlord Tenant Issues at http://www.ohiolandlordtenant.com

About The Author

Eric E. Willison and Andrew J. Ruzicho II
All contents of article copyright 2006 www.ohiolandlordtenant.com. Eric Willison and Andrew J. Ruzicho II began their Ohio tenant's rights web site in 1999.
    



    

Knowing when to Consult a Lawyer

    





    
In this day and age, it's important to protect your rights in many different situations. Knowing when you require the professional services of a lawyer is important since many situations essentially demand it. Hiring a lawyer will typically cost you a large sum depending on the complexity and time required of your situation, so it is wise to understand when you really require legal services.
If you have been arrested or are being sued, contact a lawyer immediately. These types of situations are very cut and dry in terms of whether or not you need legal help. However, there are many of reasons other than existing legal problems that might be reason to hire a lawyer. For instance, if you are considering firing a problem employee from your business, you may want to consult a lawyer before you find yourself embroiled in a lawsuit.
If you're unsure if you need legal advice or assistance, a good question to ask yourself is what have you got to lose? If the answer is money, freedom, or other rights, then getting a lawyer is a wise decision. Again, you may not be prepared quite yet to hire a lawyer for your situation, but at least consulting one on your rights is a wise decision. For instance, if you are in the process of getting an amicable divorce, you may want to consult a lawyer to see what your rights are but not necessarily get one involved.
Before contacting a lawyer, you should understand the scope of your situation. There are many different types of lawyers, each dealing with distinct types of legal problems and situations. While most will immediately let you know if you need to contact someone else, it is a good idea to have a grasp on whose expertise it is you need. There are plenty of online resources to help you decide what type of lawyer you need.
If you think you may need a lawyer, it is vital that you act quickly. Certain situations are very time sensitive, such as suing for injuries sustained in an accident. There is a specific amount of time you have to file a lawsuit, so even if you're not sure what your course of action should be, consulting a lawyer is wise. They can help steer you in the right direction and let you know if they believe you have a strong case.
The legal world can be very confusing, frustrating, and frightening to many of us. Understanding what your rights are is the first step in resolving any issue, whether it's criminal, business related, or anything in between. Finding a qualified lawyer is the best way to make sure someone is fighting for your rights.
Copyright http://www.legalspring.com

About The Author

Cynthia Bates is an Internet specialist, and periodically writes legal help articles for http://www.legalspring.com.

    



    

Joint Custody in Divorce

    





    

There had been a growing trend, in Ontario, in family and divorce law, over the last few years, for family courts to order joint custody of children. The hope, by some, was that the parenting skills of the parties could be improved with awards of joint custody. The recent Ontario Court of Appeal decision of Kaplanis v. Kaplanis, has tried to put this trend into perspective.
In this decision, the parties were married in 1998 and separated in January 2002. The parties had a daughter who was born in October 2001. At trial, the father requested joint custody and the mother opposed the application, stating that the parties could not communicate without screaming at each other. The trial judge granted the parties joint custody and the mother appealed the order. The appeal court set aside the order of joint custody and the mother was granted sole custody.
The Appeal Court held that, for an award of joint custody to be granted, there must be some evidence that demonstrates, that despite the parent?s own strong conflict with each other, the parties can and have cooperated and communicated appropriately with one another. In this case there was evidence to the contrary, there was no expert evidence to help the trial judge determine how a joint custody order would advance the child?s emotional and psychological needs and the child was too young to communicate her own wishes.
Approximately the same time this case was decided, the Ontario Court of Appeal also ruled on the case of Ladisa v. Ladisa, where the appeal court upheld the trial judge?s order of joint custody. In this case the trial judge had the benefit of hearing the evidence of the Children?s Lawyer who presented the children?s wishes and who recommended joint custody. It was held that the trial judge had heard evidence from third parties with respect to cooperation and appropriate communication between the parties . The trial judge also looked at the history of co-parenting during the marriage and that despite their intense conflict, the parties could and had effectively communicated with each other and placed the interests of their children ahead their own, when required.
To summarize, in Ontario joint custody cases, it would appear that the courts will now be looking more closely for evidence from third party and expert witnesses, which can demonstrate that the parties can and have cooperated and communicated appropriately and have been able to put aside their own differences and conflict, for the benefit of the children. The lack of historical cooperation and appropriate communication between the parties will greatly limit the success of a joint custody application. Th e assumption by some, that the granting of joint custody will improve the parenting skills of the parties, will not be a sufficient reason on it?s own to grant joint custody, in the absence of existing good cooperation and communication between the parties.

About The Author

Erwin Seltzer practices Family and Divorce Law and Wills and Estates Law in York Region and Toronto. Erwin can be reached at (905) 474-4333. www.erwinseltzerdivorcefamilylaw.itgo.com

    



    

Internet Detective Sites What Are They

    





    


Over the last five years we have seen an emergence of a new type of website, commonly referred to as an "Internet Detective Site." These sites fill the need for people searches that are not easily accomplished using the currently available search engines. Here, we will discuss the various aspects of websites that offer online detective services.

We want to answer the most basic question, "What is an internet detective site?" The simple definition is "a collection of links." An internet detective site is a collection of links to resources that allow you to search for many forms of demographic information. Most of these links can be found for free on the internet, but it would take hours, if not days, to find them all by hand. Thus, an internet detective site is providing a service that saves the searcher valuable time by gathering and updating relevant search links. The price for this service usually ranges from $19.95 to $39.95. This is often a one-time fee which buys the subscriber a lifetime membership to the service.

Some of the most frequent uses include finding a phone number or address, reverse phone number lookup, cell phone search, finding a birthdate, finding an email address, or locating a lost friend or love. Other uses include background checks, criminal record checks, military record checks, and genealogy research. The list of search types is actually very long. Here is a partial list to wet your appetite:

1) Adoption Records
2) Aircraft Crash Database
3) Real Estate Brokers Directories
4) Census Data
5) County Ordinances And Codes
6) FCC Radio Licensee Search
7) Annual Corporate Reports
8) Court Records
9) Military Records
10) Criminal Records
11) Marriage Records
12) Copyright Information
13) Patent Information

Before embarking on your people search, consider saving yourself some time by purchasing a membership to an Internet Detective Site. A good place to start is The Detective Detective ( http://www.DetectiveDetective.com ), where you will find comparisons and reviews of the most popular internet detective sites.

Good luck searching!

About The Author

Scott Fromherz owns and operates a number of websites. He reviews and compares the popular Internet Detective Sites at http://www.DetectiveDetective.com.