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Published online by Cambridge University Press: 20 November 2018
This study is of the application of the Ohio Landlord and Tenant Act of 1974 in Cleveland to determine, within the limits of a brief exploratory study, how landlords and tenants have used the provisions of the act and the influence the act has had on the courts, the legal profession, and other institutions.
1 See Comment, The Ohio Landlord and Tenant Reform Act of 1974, 25 Case W. Res. L. Rev. 876 (1975).Google Scholar
2 Ohio Rev. Code § 5321.02; Uniform Residential Landlord and Tenant Act § 5.101 [hereinafter cited as URLTA].Google Scholar
3 Ohio Rev. Code § 5321.14; URLTA § 1.303.Google Scholar
4 Ohio Rev. Code § 5321.15; URLTA §§ 4.104, .107.Google Scholar
5 Ohio Rev. Code § 5321.16; URLTA § 2.101.Google Scholar
6 Ohio Rev. Code § 5321.04; URLTA § 2.104.Google Scholar
7 Ohio Rev. Code § 5321.05; URLTA § 3.101.Google Scholar
8 Ohio Rev. Code §§ 5321.07, .09; URLTA §§ 4.101, .201Google Scholar
9 Ohio Rev. Code §§ 1923.01, 5321.09; URLTA § 4.201.Google Scholar
10 Ohio Rev. Code § 5321.07.Google Scholar
11 Id.§§ 1901.17, .18.Google Scholar
12 Id.§ 5321.02.Google Scholar
13 Id.§ 5321.04.Google Scholar
14 Id.§ 5321.15.Google Scholar
15 Id.§ 5321.16.Google Scholar
16 Id.§ 5321.05.Google Scholar
17 Id.§ 5321.09.Google Scholar
18 Id.§ 1923.04.Google Scholar
19 Id.§ 1923.06.Google Scholar
20 Id.§ 5321.07(A) (emphasis added).Google Scholar
21 Id.§ 5321.07(B). Rent withholding under URLTA differs from that under the Ohio act in that the tenant may deposit rent with the court only after a hearing and an order issued allowing the deposit (§ 4.105). In addition, the tenant may, after notice, (1) make the repairs or supply the service himself and deduct the cost thereof from the rent (§§ 4.103, .104) and (2) be excused from rent while substitute housing is procured and recover from the landlord the cost of such rent (§ 4.104).Google Scholar
22 Ohio Rev. Code § 5321.08.Google Scholar
23 Springsteel v. Levet, No. 971670 (C.P. Cuyahoga County, Ohio, Apr. 11, 1977). In the brief supporting the petition for relief, reliance is placed on Fuentes v. Shevin, 407 US. 67 (1972) (holding invalid a Florida statute allowing the recovery of personal property, through a prejudgment writ of replevin issued by a court clerk, without notice to the party in possession of the property or providing for an opportunity for a judicial hearing on the matter), and North Ga. Finishing, Inc. v. DiChem, Inc., 419 U.S. 601 (1975) (declaring a Georgia statute to be in violation of the Fourteenth Amendment because it permitted the issuance of a writ of garnishment by a court clerk, based on conclusory allegations, without also providing for an early hearing on the claim). Also cited in support of this contention is the case of Rallie Co. v. Pastor, No. M76CVG46373 (Franklin County, Ohio, Mun. Ct. (Columbus), Apr. 11, 1977) (holding that the statute in question is unconstitutional on the basis stated above). However, the municipal court rulings of one city or county are not binding on the courts of other cities and counties. The Springsteel case also alleges that a provision making the procedure applicable only to landlords with four or more units is a denial of equal protection under the Fourteenth Amendment (cited is Yick Wo v. Hopkins, 118 U.S. 356 (1886)).Google Scholar
24 Ohio Rev. Code § 3733.Google Scholar
25 City of Cleveland, Department of Community Development, Community Development Block Grant Application: Housing Assistance Plan, 1978-1979.Google Scholar
26 Information about the activities of the Housing Division was gained from interviews with the director of the division. We were given to understand that the offending party (normally the owner or landlord but sometimes a tenant) is given a “reasonable” time to rectify the condition cited. The time allowed to repair varies with the need: e.g., from 24 hours for lack of heat to 6 months for peeling paint. A little over half of those cited make the repairs within the deadline set by the inspector. Failure to comply normally detected on reinspection or renewal of a complaint results in the issuance of a summons, requiring the owner to come into the division office to discuss the matter and for an explanation that the violation will be referred to the municipal law department for possible prosecution in the Cleveland Municipal Court. This latter procedure accounts for another 43 percent compliance. In 1978, about 1,100 complaints were filed in court.Google Scholar
27 Cleveland Plain Dealer, Nov. 2, 1978, at 62.Google Scholar
28 Ohio Rev. Code § 5321.07(C).Google Scholar
29 Once an eviction action is filed, the tenant has a right, under federal regulation, to a grievance procedure. Under it, the manager of the Housing Authority receives a notice of the grievance, under which the tenant is entitled to have his or her case heard before an administrative tribunal consisting of two representatives of management (the Housing Authority), two representatives of the tenant, and one representative representing neither group currently a delegate from the local League of Women Voters. The eviction action in the municipal court is held in abeyance until this grievance procedure is concluded.Google Scholar
30 Section 1923.061 provides specifically that a tenant in defending an action for nonpayment of rent may use any defense under chapter 1923 or counterclaim for any amount to which he or she is entitled under the rental agreement or chapter 5321.Google Scholar
31 When it is clear that the tenant is poor, as most are, the referee will state that the “red card” will be issued when finding for the landlord. This means that a praecipe (ordering the writ of possession to be prepared by the court clerk), on a form red in color, will be issued. A copy is given to the tenant so that he or she can, if eligible, take it to the local welfare department to apply for financial assistance. Documentation of the order to vacate is necessary to qualify for this form of public aid.Google Scholar
32 381 N.E.2d 1136 (Ohio Ct. App. 1978).Google Scholar
33 Id. at 1141.Google Scholar
34 Emily Jane Goodman, Housing Court: The New York Tenant Experience, 17 Urb. L. Ann. 57, 61 (1979).Google Scholar
35 Fusco, Anthony J., Jr., Nancy B. Collins, & Julian R. Birnbaum, Chicago's Evicition Court: The Tenants' Court of No Resort, 17 Urb. L. Ann. 93, 109-110 (1979).Google Scholar
36 Reed, Robert, Detroit Code Enforcement and the Housing Court Debate, 17 Urb. L. Ann. 215, 219 (1979); see also, Marilyn Mosier & Richard Soble, Modern Legislation, Metropolitan Court, Miniscule Results: A Study of Detroit's Landlord-Tenant Court, 7 J.L. Ref. 9 (1973); Rose & Scott, “Street Talk” Summonses in Detroit's Landlord-Tenant Court: A Small Step Forward for Urban Tenants, 52 J. Urb. L. 967 (1975).Google Scholar
37 Allan David Heskin, The Warranty of Habitability Debate: A California Case Study, 66 Calif. L. Rev. 37, 59 (1978).Google Scholar
38 One commentator has concluded that there is no precise judicial standard for determining whether the implied warranty of habitability is substantial enough to justify rent withholding. Considered is the “seriousness” of the defect and length of time it has existed. See Comment, Rent Withholding Won't Work: The Need for a Realistic Rehabilitation Policy, 7 Loy. L.A.L.L. Rev. 66, 73, n.42 (1974).Google Scholar
39 We were unable to verify the extent of housing improvements in Cleveland since enactment of the act in 1974. Other persons interviewed namely those favoring the tenant's position disputed the referees' assertions about the amelioration of living conditions in Cleveland because in their view substandard living continues to be substantial as shown by figures produced by the Cleveland Department of Community Development. See note 25 supra and text at same.Google Scholar
40 Hirsch, Werner Z., Joel G. Hirsch, & Stephen Margolis, Regression Analysis of the Effects of Habitability Laws upon Rent: An Empirical Observation on the Ackerman-Komesar Debate, 63 Calif. L. Rev. 1098 (1975); Charles J. Meyers, The Covenant of Habitability and the American Law Institute, 27 Stan. L. Rev. 879 (1975); Comment, supra note 38.Google Scholar
41 “At the point where economic self-interest ceases to be a sufficiently potent force for the promotion of the general welfare, … the Legislature may intervene and require that buildings intended for use as tenement houses … shall conform to minimum standards which may reasonably be regarded as essential for safe, decent, and sanitary dwelling places.” Adamec v. Post, 7 N.E.2d 120, 122 (N.Y. 1937); Danker v. City of New York, 194 N.Y.S.2d 975 (A.D. 1959); Queenside Hills Realty Co. v. Saxl, 328 U.S. 80 (1946); Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962); Block v. Hirsh, 256 U.S. 135 (1921); Wheat v. Ramsey, 224 So. 2d 649 (Ala. 1969); Givner v. Commissioner of Health, 113 A.2d 899 (Md. 1955); see 7 Eugene McQuillin, The Law of Municipal Corporations (3d ed. rev. Chicago: Callaghan, 1968 & 1977 Supp.).Google Scholar
42 Comment, The Landlord's Economic Inability to Meet Housing Code Requirements: The “Hot Bath” Ordinance, an Illustration, 23 St. Louis U.L.J. 163, 174 (1979).Google Scholar
43 174 N.E.2d 331 (N.Y. 1961).Google Scholar
44 See Judah Gribetz & Frank P. Grad, Housing Code Enforcement: Sanctions and Remedies, 66 Colum. L. Rev. 1254, 1272 (1966).Google Scholar
45 Apple v. City & County of Denver, 390 P.2d 91 (Col. 1964).Google Scholar
46 Gates Co. v. Housing Appeals Bd., 225 N.E.2d 222, 225 (1967). Here the court noted that the cost of compliance would exceed 50 percent of the fair market value of the property without improvements. See also Dente v. City of Mt. Vernon, 272 N.Y.S.2d 65 (A.D. 1966); Early Estates, Inc. v. Housing Bd. of Review, 174 A.2d 117 (R.I. 1961); Safer v. City of Jacksonville, 237 So. 2d 8 (Fla. Dist. Ct. App. 1970).Google Scholar
47 City of St. Louis v. Brune, 515 S.W.2d 417, 482 (1974).Google Scholar
48 Id. at 476. See generally Comment, supra note 42.Google Scholar
49 One or more of the following items are checked and left with the landlord if, during an inspection, a defect is discovered:Google Scholar
Common Areas: no lights in hallways (H.C. 371.05); paint peeling or plaster chipping (H.C. 369.16); leaking roof (H.C. 369.15); no railing or broken railings on stairs, loose or broken steps (H.C. 373.02); no lock on door at building entrance (H.C. 369.14); no garbage cans or insufficient garbage cans (H.C. 371.1qa)); broken gutters or downspouts, piles of junk or garbage in hallways or outside area (H.C. 369.18); rodent infestation (H.C. 369.17); buildings not weathertight (needs pointing) (H.C. 369.19).
Living Unit: no heat; no reasonable amounts of hot water; broken door or locks on door are inadequate (H.C. 369.13(a)); roach and rat problems (infestation) (H.C. 369.17); space beater not properly vented (H.C. 369.10); defective plumbing (H.C. 369.13) in kitchen or bathroom; plaster chipping or falling (H.C. 369.16(a)) paint peeling; broken windows; defective wiring or exposed wiring (H.C. 369.12); leaking ceilings; holes in floor, walls or ceiling (H.C. 369.16).
50 The tenants' organization check list read as follows:Google Scholar
Problems in living unit: broken door; locks on doors are inadequate; no window locks; no heat, or when available, unable to reach temperature of 70 degrees; space heater not properly vented; defective radiator; broken thermostat; broken vent or register; inadequate ventilation; cracked sink, or tub, or toilet; appliances not maintained; stove not working; broken air conditioner; defective plumbing or leaking pipes; no hot water or not reasonable amounts of hot water; no cold water; broken spigot; broken toilet; no bathroom sink; no smoke detector; refrigerator not working; garbage disposal not working; paint peeling; plaster chipped or falling; broken windows; holes in floor; no screens; broken tile; defective or exposed wiring; light switch not working; wall outlet not working; shortage of wall outlets; leaking ceilings; roach and rat problems.
Problems in and around the bulding (common areas): No lights in hallways or stairs; dirty hallways; loose or broken floor in hall; no railing or broken railings on stairs; storage of flammable substances so as to create fire hazard; defective incinerator; paint peeling in halls or outside; leaking roof; holes in walls or ceilings in halls; no mailbox or mailbox locks; no janitor on premises; no name, location and hours of janitor posted at entrance; no certificate of occupancy posted at main entrance; outside stairway in need of repair; no railing on stairs; holes in foundation; piles of junk that might provide hiding places for rats, mice, etc.; fence provided by owner in need of repair; elevator unsafe; no fire extinguishers or fire hose; defective fire escapes; flooded basement; cluttered basement or storage area; no lock or broken locks on windows; broken sidewalk; lack of snow removal from sidewalk or parking area; rubbish in yard; no garbage cans or not enough; broken gutters or downspouts; shutters hanging from building; porch or balcony in need of repair.
51 During interviews with the referees we asked why they made few if any referrals to the City Housing Division. Uniformly the answers expressed the perception that there aren't enough inspectors and that those in service are hard put to keep up with their own routine license inspections, without giving attention to court referrals.Google Scholar
52 Ohio Rev. Code §§ 1901.011, .025, as amended.Google Scholar
53 See Scott, Randall W., Housing Courts and Housing Justice: An Overview, 17 Urb. L. Ann. 3 (1979). There it is argued:Google Scholar
If housing courts are to operate satisfactorily, they must receive adequate staffing. It is unlikely that a housing court will result in a major “savings” in the judicial system budget. Rather, local housing courts encourage additional caseloads as the public becomes more aware of the ability to enforce their rights. Additionally, the courts must take more time to dispose of these cases; the prior cursory proceedings resulted in the need for housing court reform.
Id. 9.Google Scholar
54 The Canadian Rentalsman, used in Manitoba and British Columbia, is reportedly a very popular and productive approach to landlord-tenant problems. Trained Rentalsmen officers and investigators receive complaints and serve as hearing officers; their decisions are guiding, but appeal to the courts may be taken. This system encourages complaints that normally would not be made through the court system. The New York City Housing Court, whose jurisdiction over landlord-tenant disputes must be acquired by the parties agreement, employs hearing officers who, primarily in eviction cases, uncover tenant defenses based on housing code violations. See Mauro Cappelletti & Bryant Garth, Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective, 27 Buffalo L. Rev. 181, 271-73 (1978). See also Comment, Arbitration of Landlord-Tenant Disputes, 27 Am. U.L. Rev. 407 (1978).Google Scholar