Confronting eviction is a 4 part series of stories from June 2015
Part 1: The term "eviction" might mean one of four things.
Termination notice. Landlord must give a notice of intent to end the rental agreement. For a month to month agreement, Landlord must give 30 days before the rental due date. If there is a lease, the agreement should specify the termination procedure. READ YOUR LEASE. Generally a verbal agreement can be terminated with a verbal notice; written agreement needs to be terminated with written notice. WAIT-there's an exception for non payment. In the case of non payment the Notice to Vacate (see below) serves as the termination notice. Notice to Vacate (NTV or 3 day notice). Ohio Law (ORC 1923.04) requires that landlord must give a notice to the tenant before filing an eviction in court. This NTV has specific language telling the tenant to leave the premises within 3 days or else an eviction (FED) action will be filed. Think of NTV as a warning. Landlord may not take any action without a court hearing. (ORC 5321.15). Summons for court hearing. After 3 days, landlord files an action in Forcible Entry and Detainer (FED) asking the court to hold a hearing to determine if tenant is not legally entitled to possession of the premises. Sometimes landlord will also ask the Court to award "damages" for back rent and other charges. These two actions are handled separately. Tenant will receive a summons to appear at the hearing to decide if tenant can stay in the rental unit...and a offer to respond to the 2nd Cause (money damages) claim.
1st Cause (Possession of the premises) will usually be held 10-15 days after the summons arrives. Tenant can submit testimony & witnesses in support of the tenant's claim that she/he should not be removed from the premises.
If the summons also includes a 2nd Cause for money damages, tenant may file a response and the court will schedule a hearing to gather testimony about what money is owed. IF TENANT FAILS TO RESPOND, no hearing will be held and the court will simply make a judgement on the facts offered by the landlord.
Red tag and set out. If the judge decided that the tenant should leave the premises, he/she will tell the landlord to report to the Clerk of Court to obtain the paperwork for a set out. Tenant will receive a notice (sometimes called a "red tag") of the date and time when the court bailiff will supervise the removal of the tenant's belongings. How the set out is handled depends a lot on the local rules of court.
Part 2: Eviction: there are some defenses
Tenants and their "helpers", especially those who are unfamiliar with the law, often view the eviction notice (could be termination, notice to vacate, summons--see part 1) as the final words: "get out". That's not true--tenant always has the right to stand in front of the "judge" and tell her/his side of the story before the "judge" makes a decision.
However, tenant needs to raise a relevant issue (see below) and often needs to have the rent money ready to back up her/his claims. Remember that under the Ohio Landlord Tenant Act a "landlord" is the owner or owner's agent (that is: manager). When you see the term "judge", it may be a real Judge or may be a Magistrate or Referee working under the Judge's supervision. "ORC", of course, means Ohio Revised Code. Keep in mind: none of this information is legal advice. For legal advice, consult an attorney.
Relevant substantive claims can include:
1. Tenant offered rent in full when it was due and "landlord" refused to accept. Key factor will be a witness to the fact that the rent was offered.
2. Tenant made a partial payment that was accepted. Witness or receipt may be evidence.
3. Tenant believes that the eviction is in retaliation for a tenant exercising her/his rights under ORC 5321.02. Key elements of this defense are that the eviction was close in time to the protected activity and/or that there is evidence (documents or witnesses) to shows the landlord's intention. Keep in mind that "judge" may require tenant to put the disputed rent in escrow with the court until the claims are sorted out. Experienced lawyer recommended. Protected activities include: complaining about conditions, calling an inspector, joining with other tenants to bargain collectively (eg organizing).
4. Tenant believes that the condition of the property made it worth less than the amount of the rent owed. ORC 1923.061 (b) makes it possible to a tenant to counter claim based on conditions, but tenant must have the FULL AMOUNT of the rent due to give to the court as a bond before the court will consider evidence on the condition of the unit and make a decision on the counter claim. Tenant will need to show by evidence (documents, photo/video, inspection reports or credible witnesses) why tenant believes the rental property was not worth the full value of the rent. Experienced lawyer recommended.
5. Tenant needs a reasonable accommodation because of tenant's disability. Accommodation may be needed order to permit tenant to make full use of the premises despite her/his disability. Reasonable accommodation could be a change in a rule, policy or procedure relevant to a tenant's disability. Example: Tenant receives a Social Security Disability check on the 3rd of the month, but rent is due on the first. Tenant will need to prove both her/his disability and the connection between the disability and the requested accommodation. Attorney specializing in fair housing/disability rights recommended. While a reasonable accommodation maybe be raised in an eviction proceeding, tenant could make RA request prior to the eviction process beginning.
Relevant procedural claims may include:
1. If "landlord", the entity bringing the eviction action, is a corporation, it must be represented by an attorney...not just an employee of the corporation. Tenant may challenge a corporate "landlord's" standing to bring an eviction action.
2. Tenant did not receive proper notice to terminate before eviction (FED) was filed in court or there was a faulty notice or faulty delivery of the summons from the court.
3. Tenant lives in Federally assisted housing and was denied a Federal right relevant to the eviction. Examples might include:
"Good cause" for termination in public housing, HUD assisted, USDA assisted or Low Income Housing Tax Credit (LIHTC) housing or
Pre termination hearings in Federally assisted housing were not offered.
Many tenants decide to just move before the date of the trial in order to protect your "credit". That could be bad advice for 3 reasons:
1. Failing to respond to a 2nd cause claim for money damages could leave the tenant with a judgment that could be collectible by garnishment or attachment of personal property.
2. Once an eviction is filed in court, credit bureaus and other data brokers will include the filing on your personal report regardless of the outcome.
3. Just because you move, doesn't mean the eviction will not go forward and an adverse decision will be harder to remove from your credit record. (see protecting your credit, below)
In other words, if you have a relevant issue/claim and good evidence, it might be worth the fight. Ask an attorney who practices in the court where the eviction is filed. Even if the attorney can't represent you, they may have good suggestions about how to prepare your case. There's general information on eviction here. And, there's more info on self representation here.
What is not a relevant issue? Many things that are important to tenants and their helpers are not relevant to eviction "judges". Example of non relevant issues include things like this. "I was robbed." Or "I had to buy medicine." Or "I gave the rent check to my sister and she forgot to mail it." Any of these, if well documented and credible may buy some extra time to get out...none will get the eviction dismissed.
What kind of lawyer do I need? Having a lawyer who has practiced in the court where your case is filed is important. A lawyer who has experience in landlord-tenant cases will be an added benefit. A lawyer who understands disability law or Federal housing regulations will be important if you case involves these kinds of claims. Legal Aid often helps low income households facing a defensible eviction, but their resources are severly strained and they may not be able to take all the eligible households. There is no right to counsel in eviction cases (wait for more in installment 4 of this series.) If your case involves "retaliation" (see #3 under substantive claims, an attorney may take your case on contingency since the ORC 5321.02 permits the court to assess attorney fees if successful.)
What if I disagree with the decision-can I appeal? If your case was heard by a magistrate or referee you have the right to ask the judge to review the magistrate/referee decision. Review the court rules to learn more about "reconsideration."
How can I protect my credit if evicted? As mentioned above, credit bureaus and other data brokers will pick up the fact that you have had an eviction filed against you...regardless of the outcome. If your eviction case is dismissed, you can ask the credit reporting agency to remove that record from your file. If the judgement is granted, but there are extenuating circumstances, you can ask the credit reporting agency to permit you to add an explanation of the circumstances to your credit report. More on credit here.
Eviction: There's a social cost as well as a personal cost
is so ingrained in US culture that our primary tool for dealing with
homelessness (Rapid Rehousing) requires that a household have an
eviction notice before the household can qualify for assistance. Y'know,
uprooted from home, school, friends and shuffled off to some other
"location". Often friends and counselors will tell tenants
"move before you are evicted so it doesn't get on your credit
record," even though credit bureaus pick up "filings"
not just judgments. Increasingly local governments pressure
landlords to evict tenants for "anti-social" behaviors that
don't rise to the level of real crime. For example nuisance call
ordinances and crime free lease addenda encourage eviction as a
punishment for non-criminal behaviors that city officials find
unwelcome. More on nuisance call codes.
cumulative effects of the rush to evict weigh heavily on the members
of households that move frequently. Center for Housing Policy
extreme housing instability, including frequent moves, living in
doubled-up housing, eviction, and foreclosure, is also related to
elevated stress levels, depression, and hopelessness. Among both
adolescents and seniors, researchers have found evidence of a
connection between the length of tenure in a residential building and
the likelihood that residents report behavioral and mental issues.
Longer tenures are associated with lower levels of depression among
seniors and fewer internalizing and externalizing behavioral issues
such as anxiety and aggression among adolescents. "
education, unfavorable health and mental health outcomes, and
increased crime and violence are all documented consequences of the
rush to evict. An avalanche of studies over the past few years have
highlighted these impacts, but policy makers and program managers
have only slowly realized that tenants are not, by their nature,
with "a record", are more likely to get less stable housing
in the future. Landlords who rent to previously evicted households
rely on month-to-month rental agreements, and often can charge a
premium for substandard conditions.
'involuntarily displaced" (to use the description of Harvard
researcher Matthew Desmond), tenants are often "rent burdened"
resulting in less money to spend on transportation, medication, and
food. Eviction's Fallout: Housing, Hardship, and Health.
does the eviction system create costs to the community? Using
eviction as a short term solution to a landlord's problem fosters
long term social problems with real social costs. Three examples:
proliferation of substandard rental properties which demand code
of civic participation (street clubs, PTA, neighorhood organizations)
that arises when tenants can't build relationships with neighors and
perception that tenants are transients who deserve punitive policing
instead of citizens in need of safety services.
challenges for community leaders and public program managers is three
is to find out what local policies (rapid rehousing, nuisance call
ordinances, agency policies) are promoting eviction and rental
is to look at local resources that can provide bridge financing so
that households can stay in place while addressing the problems that
are creating instability.
is changing the eviction process so that the goal of rental stability
is balanced with the ownership rights of the landlords.
More on personal and community impacts
Balancing the interests in eviction.
principle of the Ohio Landlord Tenant Law (ORC 5321) is to balance
the rights and interests of landlords and tenants. But the idea of
balance breaks down at the point of eviction. The reason is
simple--the eviction law (ORC 1923) is a relic of the Middle Ages
when, landlords were literally the lords of the land. Part 4 of
RHINO's series on eviction looks at some ideas for making a better
balance between landlords and tenants in the eviction court.
filing mediation. Providing mediation (overseen by the court or a
private 3rd party) might put landlord and tenant on a more equal
footing in an effort to resolve the disputes so that tenant could
stay in her/his home. One example of pre-filing mediation is in
Cleveland's Housing Court where court staff can provide mediation
service on request of both parties before an eviction is filed. In
communities where there is an established mediation program, closer
coordination between the court and the local program can bring more
landlords and tenants to mediation before an eviction is filed. Many
eviction courts in Ohio offer some form of post filing mediation
program for landlords and tenants. Most focus on working out an
agreement before facing the judge. However mediation after an
eviction case has been filed doesn't solve the "balance
problem". Because the landlord has already paid for his/her day
in court, there's little incentive to abandon the eviction. Most
times landlords and tenants in mediation work on when the tenant will
leave and how the tenant will address rent & charges that are
approved forms for self-representation. Eviction courts generally
provide lots of material for landlords on how to file an eviction,
but few provide guidance to tenants seeking to defend an eviction
action. Cleveland Housing Court is one court where forms are
available on line and from a Housing Court Specialist who can also
provide assistance to a tenant in preparing, for example, an answer
and counterclaim. Many Legal Services programs have created forms
that may be used for self representation; but not all these forms are
readily available to "the public". Even small courts that
don't have a staff could help tenants by making the Legal Aid forms
available with explanatory materials.
stay is based on the concept that a tenant can "cure" a non
payment situation up to the point of the eviction hearing by paying
the rent due and charges in full. Pay to stay gives the tenant more
time to work out her/his finances than is currently available under
the Ohio 3 days notice to vacate. In Pennsylvania, for example,
tenant gets a 10 days notice to vacate and may "pay up"
during that 10 day period before the eviction is filed in Court.
After the eviction is filed, tenant may reinstate the lease by
obtaining a “Pay and Stay” Order from the court...but only after
paying all the rent and court costs owed and payment is tendered
before the eviction hearing. More here. Getting "pay to stay"
in Ohio would require a change in the eviction statute at Ohio
Revised Code 1923.
"Just Cause" lease provisions. "Just cause" is
the legal principle that a rental agreement continues to be renewed
as long as the tenant is in compliance. The landlord may not
arbitrarily fail to renew that agreement without "Just Cause."
Right now in Ohio, "Just Cause" termination is the law in
Federally assisted housing (but not Housing Choice Vouchers) and in
Low Income Housing Tax Credit properties. The rationale for the use
of "Just Cause" protections in these properties is that a
tenant is beneficiary of "housing" and property based
rental assistance. Other examples of "Just Cause"
protections is in "rent control" properties mostly in East
and West Coast cities.. An example of a general purpose Just Cause
ordinance comes from the City of Seattle "[Just Cause Eviction
Ordinance] requires that Seattle landlords have just cause reasons to
terminate tenancy or evict month-to-month or other periodic tenants
(tenants who pay rent weekly or twice a month). There are 18 total
just causes listed in the ordinance, many more than there were in the
past. Just causes for eviction include nonpayment of rent,
noncompliance with lease terms, chronically late rent payments, and
the intention of the landlord to occupy the unit themselves or rent
the unit to an immediate family member. The notice required for each
just cause reason varies." More on Just Cause eviction here.
for low income tenants facing eviction. Advocates in New York are
working with city leaders to get city funding for legal
representation in eviction court for low income tenants. Proponents
argue that spending public funds on eviction defense reduces
expenditures for emergency shelter and other direct costs of
involuntary displacement. Huffington Post writes: "There is a
tool to combat the problem of eviction and foreclosure -- it's being
represented by an attorney. This week the New York City Council,
under Speaker Melissa Mark-Viverito, introduced a bill to provide a
lawyer for tenants and homeowners facing eviction or foreclosure who
earn up to 125 percent of the poverty line. Already a majority of
Council Members support the bill, and for good reason: it makes
economic sense." Even the Wall Street Journal and Newsweek have taken notice.
steps to eviction reform.
Establish a Court monitoring program where ordinary citizens watch
what happens in eviction court and report back to the community. One
of the problems with eviction reform is that eviction takes place in
relative secrecy. Only landlords and lawyers are familiar with the
surroundings and the proceedings and neither has an incentive to
promote change. Newark's Citizens for Housing Rights has been
educating its members and some tenants about ways in which the
Licking Muni Court disadvantages tenants. Just their presence in the
court room has made magistrates and lawyers more conscious of their
Tenant Education is another key component of eviction reform. Helping
tenants navigate the system, raise legitimate defenses and publicize
their victories is a critical step away from a "cut and run"
mentality prevalent among tenants (and their advocates). Eviction
diversion programs that reach out to tenants at the time of eviction
can be wonderful educational tools. Examples of tenant education
programs range from pre hearing counseling provided by law students
in the hallway outside the eviction court to full blown eviction
diversion programs which reach out to tenants at the same time as the
summons arrives in order to provide counseling. (see CTO Eviction
Diversion report attached below).. Social service organizations in
NYC are targetting diversion services to the most in need using "big
data" analysis. more here
Creating a community based mediation program can provide a service to
resolve disputes before they end up in Court. HOME in Cincinnati has
teamed up with other community organizations (including the Real
Estate Investors Association) to spin off a voluntary pre-eviction
mediation service free of charge to landlords and tenants.
Citizen Action. Changing the laws means fighting in the trenches of
local and state politics. For example, much of the ground breaking
work done by the Cleveland Housing Court today came about because of
citizen-led campaigns pass a state law to create a separate housing
court and then to elect judges who were sensitive to the unique needs
of landlords and tenants.A key to enacting eviction reforms is a
strong tenants movement like in Seattle, New York, San Francisco and
LA. Non tenant advocates can start the process, but organized,
mobilized tenants are necessary to take the ball over the finish
line. While none of these reforms is a cure all for the problem of
the imbalance of power between landlords and tenants in eviction
court, any of them is a step in the right direction. Local advocates
working with tenants and landlords and the courts can begin to craft
ways to make eviction less disruptive to households and communities.
Waiting for change is a non starter.