The Judge's Bench: Rent Deposit Rights And Duties

Lakewood is a city of homes, and many of those homes are apartments and doubles. Most landlords take care of their property. When a landlord does not maintain or repair the property, a tenant has a special right to deposit the rent into court instead of paying the landlord.

The rent deposit procedure provides a tenant with the ability to make the landlord comply with the lease and housing codes. The court, as the neutral party, will hold the rent. The landlord is deprived of the use of the rent until the repairs are made. Thus, a tenant becomes a code enforcement agent.

There are three requirements for a tenant to pay rent into the court.

1)  The violation must substantially affect the tenant’s living conditions. Lakewood has a lot of old apartment buildings, and just like houses, they usually need some repairs. A tenant cannot deposit rent for minor matter like a burnt out light bulb or dripping faucets. The violation must have a substantial impact on the tenant’s use of the apartment. This includes lack of heat, peeling paint, mold, broken appliances and other violations that would prevent the tenant from getting the full use the apartment as part of the rental agreement. 

The conditions must be also be a violation of the lease agreement or statute, or a citation by the building department, but most violations serious enough to pay the rent into court will meet this requirement. The statutory duties of a landlord are contained in Ohio Revised Code Sec. 5321.04 and cannot be modified by the landlord or passed on to the tenant.

2)  Notice to the landlord. Before a tenant can put their rent into court, the tenant must give the landlord a chance to make repairs. A reasonable time is generally 30 days, but can be shorter if the violation is more severe. Conditions that create a risk of harm or health hazard, such as no heat in the winter, rodents, unsafe electrical wires or plumbing may require a shorter period of time. 

The best notice is in writing, stating to the landlord exactly what needs repair. Keep a copy for your records. If there is a building inspector’s report, attach it to your notice to the landlord. 

The notice requirement makes the landlord and tenant attempt to work out their differences before going to court. In some situations the landlord may not be aware of the defective condition. A tenant may not unreasonably prevent the landlord from going into the apartment to make repairs. 

3)  Current in rent.  The tenant cannot be behind in rent or withhold rent because of no response to the landlord. Thus, if an eviction proceeding is started because the rent was not paid to the landlord, the tenant cannot raise the lack of repairs as a defense unless the rent was paid into the court.

Other limitation for rent deposit. A tenant cannot pay rent into court if the landlord owns three or fewer rental units and notifies the tenant of this in writing at the time of the rental agreement. Thus, if the landlord only owns one double, the tenant cannot pay rent into court regardless of the violation if notice was given. If the landlord owns more than three rental units, even if in different cities, the rent deposit remedy is available to the tenant. A rental unit means actual units for rent, not buildings. A six suite apartment building is six rental units, not one. 

Once the rent is paid into court, the landlord gets notice. The landlord may apply to the court for release of the rent by showing:

1) Conditions have been corrected.

2) Tenant did not provide written notice of conditions.

3) No violations exist.

A hearing will usually be held to decide these issues. If the tenant shows at the hearing that the repairs have been made, the judge may reduce the amount of rent for the months the defective conditions existed. If the repairs have not been made the judge can continue to hold the rent. The landlord or tenant may ask the judge to release some of the rent to pay for the repairs. If the conditions are severe, the rental agreement may be terminated and the tenant can leave before the end of the lease. The judge can also prohibit re-rental of the premises until the repairs have been made. A landlord cannot terminate a rental agreement or evict a tenant for paying rent into the court.    

There are no court costs to the tenant for paying rent into court, but the tenant could pay the landlord's legal fees if the tenant created the violation or acted in bad faith by paying rent into court when there was no violation. A fee may be charged by the clerk of court, but no more than one percent of the rent paid into court. The fee is not assessed until the rent is paid out. The judge can waive this fee. 

There were 33 rent deposit cases in the Lakewood Court last year. With over 15,000 rental units in Lakewood, this is an indication that most tenant disputes are resolved by open communication with their landlords with the common purpose of fixing the property. The rent deposit procedure should be a last resort by the tenant when other attempts have failed.

Patrick Carroll

Judge Patrick Carroll

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Volume 11, Issue 17, Posted 4:01 PM, 08.18.2015