The landlord’s strongest position arises out of the Lease Agreement dated November 1, 2005, together with the Smoke Detector Agreement dated the same day (attached as Exhibits A & B, respectively), taken together with the tenant’s undisputed actions from the facts given.
1. Affidavits from both the electrician (later identified as Lech Triscian) and the landlord (attached as Exhibits C & D, respectively) which outlines what was observed when they entered the premises, specifically;
A. The occupants appeared to include the person who was in the premises when the landlord and the electrician entered, which would violate Paragraph 1 of the Lease Agreement. The landlord could also argue that the premises have been sublet to the individual the landlord and the electrician found in the premises, which would violated Paragraph 7 of the Lease Agreement. (Ohiobar.org, 2013)
B. The condition of the premises found by the landlord and electrician, specifically the leftover food, garbage and bags of cloths, could be considered a violation of the very detailed provisions of Paragraph 9 of the lease, requiring the tenant to “keep the premises in clean and sanitary condition” (Ohiobar.org, 2013)
C. The smoke detectors were disabled, in violation of the Smoke Detector Agreement. The tenant would be barred from arguing that the smoke detectors were in that condition when he moved in, since he did not note any problems on the Move In Checklist. (Exhibit H) (See also Paragraph 8, Lease Agreement, Exhibit A) (Ohiobar.org, 2013)
D. The presence of a cat violated the Lease Agreement, Paragraph 11. (Ohiobar.org, 2013)
E. Paragraph 10 of the Lease Agreement requires that the tenant use the premises in such a way that does not annoy other tenants. The affidavits of the landlord and electrician could outline that the television volume was elevated and that the subject matter on the television was a pornographic DVD, the soundtrack of which could easily be understood to annoy or bother other residents or their guests. (Ohiobar.org, 2013)
2. The tenant was late on his January 1st payment, since it was paid past the fifth day
of the month. Therefore the tenant owes the landlord $37.50 which has not been paid, as required by Paragraph 2 of the Lease Agreement. The tenant also owes rent due on February 1st in the amount of $750.00, since according to the materials the incident occurs on February 15, 2006 and there is no indication that the February rent is paid. As of February 15th, the total rent owing is $785.50. (Ohiolegalservices.org, 2003)
Tenant’s Position
The tenant’s argument for staying in the premises must be two-fold: (1) a valid
lease does not exist between the landlord and the tenant, therefore the Ohio Landlord
Tenant Act of 1974 governs the tenancy, and not the lease agreement, and (2) even if the
lease agreement did apply, the landlord is taking the facts he observed out of context,
and the landlord’s beliefs are the result of a huge misunderstanding:
1. A close reading of the Lease Agreement attached as Exhibit A shows that
the landlord did not sign the lease. Therefore, in the absence of a lease agreement, the
tenancy becomes assumed to be an at will tenancy under the Ohio Landlord- Tenant Act
of 1974, which requires a thirty-day notice to evict the tenant.
2. An affidavit will be required from both the tenant and his guest, John
Tenant, and are both attached as Exhibits E and F, respectfully. The affidavits would
have to give the judge a reasonable explanation for the conditions
found in the tenant’s premises, such as:
A. The occupant observed by the landlord and the electrician was in actuality the tenant’s brother who was visiting from their home state of West Virginia. John Tenant was staying with his brother while looking for work, due to the high unemployment rate in the mine country of West Virginia. John Tenant had only been there two days, and was in fact planning on moving in with his new girlfriend the next day. His job search had also been successful, and would be starting a job working at a local utility company. (Ohiolegalservices.org, 2003)
B. The garbage and trash in the residence was just the result of being caught right before housecleaning. The John Tenant affidavit also reflects that the tenant is a fastidious housecleaner, and that the mess is wholly attributable to John Tenant. The picture attached as Exhibit G shows the premises after the tenant cleaned it up. (Ohiolegalservices.org, 2003)
C. The existence of a kitty litter box does not mean that there is an actual kitty. There are many other reasons why a box full of kitty litter may be in an apartment, such as:
i. addressing problems such as dampness and mildew in garbage cans,
ii. reduce staining on driveways from grease spots,
iii. kitty litter may absorb small amounts of water from leaky toilets, such as the one in the tenant’s bathroom,
iv. kitty litter may also be used to get rid of spray paint on sidewalks,
v. put kitty litter in ashtrays to reduce odor,
vi. use kitty litter to dry flowers. (Moore, n.d.)
D. John Tenant was watching the pornographic DVD without the knowledge of the tenant. John Tenant says in his affidavit that he had turned up the
sound on the television because he has a slight hearing problem, as the result of his work in the West Virginia coal mines. He did not intend to annoy anyone and expresses his regrets and apologizes to anyone he offended.
Attachment of Notice to Leave – Specific Grounds
1. The tenant violated Paragraph 1 of the Lease Agreement by occupying the premises with another person, who was not an authorized occupant under the lease.
2. The tenant violated Paragraph 9 of the Lease Agreement by leaving garbage, leftover foods and other items strewn around the apartment and therefore did not maintain the premises in a clean and sanitary condition.
3. The tenant disabled the smoke detectors, in contravention to the Smoke Detector Agreement signed by the tenant on November 1, 2005.
4. The tenant violated Paragraph 11 of the Lease Agreement by having a cat.
5. The tenant violated Paragraph 10 of the Lease Agreement by watching a pornographic DVD very loudly which may offend others in the building.
6. The tenant violated Paragraph 7 of the Lease Agreement by subletting to another person.
HAMILTON COUNTY MUNICIPAL COURT
HAMILTON COUNTY, OHIO
L. Landlord,
Plaintiff
v. Case No.__________
Terry Tenant,
Defendant
Affidavit of L. Landlord
After being duly sworn, the affiant states as follows:
1. I entered the premises currently occupied by the defendant in January 2006 and found the tenant in violation of several provisions of the lease agreement.
2. It appeared that there was more than one person living in the premises, which violates Paragraph 1 of the lease.
3. The tenant left garbage and clothes all over the floor, which violates Paragraph 9 of this lease, which requires the tenant to keep the premises clean and sanitary.
4. The smoke detectors were disabled, which constitutes a safety and health hazard.
5. The tenant had a box of cat litter, and animals are not allowed to be in the premises pursuant to the lease.
6. When I entered the premises, someone (not the tenant) was asleep watching a pornographic DVD at a very high volume. Broadcasting pornographic material throughout the building to other tenants and their guests is in violation of the lease.
___________________________________
L. Landlord
Dated: _____________
HAMILTON COUNTY MUNICIPAL COURT
HAMILTON COUNTY, OHIO
L. Landlord,
Plaintiff
v. Case No.__________
Terry Tenant,
Defendant
Affidavit of Lech Triscian
After being duly sworn, the affiant states as follows:
1. I was invited to enter apartment 2600 of 28 W. Allegheny, Cincinnati, Ohio by the landlord of the building, L. Landlord, to do some repairs.
2. It appeared that there was more than one person living in the premises, due to the personal items in the bathroom.
3. The tenant left garbage and clothes all over the floor, and the premises were in a very dirty state of affairs.
4. The smoke detectors were disabled, which constitutes a safety and health hazard.
5. The tenant had a box of cat litter in the bathroom.
6. When I entered the premises, someone was asleep watching a pornographic DVD at a very high volume.
___________________________________
Lech Triscian
Dated: _____________
Attachment to Tenant’s Answer to Landlord’s Complaint for Eviction
In further support of the Tenant’s Answer to the Landlord’s Complaint for Eviction, I say as follows:
1. A close reading of the Lease Agreement attached as Exhibit A shows that
the landlord did not sign the lease. Therefore, in the absence of a lease agreement, the
tenancy becomes assumed to be an at will tenancy under the Ohio Landlord- Tenant Act
of 1974, which requires a thirty-day notice to evict the tenant.
2. The affidavits attached as Exhibits E and F, signed by tenant and his guest,
John Tenant, respectfully provide a reasonable explanation for what the landlord saw
when he entered the premises:
A. The occupant observed by the landlord and the electrician was in actuality the tenant’s brother who was visiting from their home state of West Virginia. John Tenant was staying with his brother while looking for work, due to the high unemployment rate in the mine country of West Virginia. John Tenant had only been there two days, and was in fact planning on moving in with his new girlfriend the next day. His job search had also been successful, and would be starting a job working at a local utility company.
B. The garbage and trash in the residence was just the result of being caught right before housecleaning. The John Tenant affidavit also reflects that the tenant is a fastidious housecleaner, and that the mess is wholly attributable to John Tenant. The picture attached as Exhibit G shows the premises after the tenant cleaned it up.
C. The existence of a kitty litter box does not mean that there is an actual kitty. There are many other reasons why a box full of kitty litter may be in an apartment, such as:
i. addressing problems such as dampness and mildew in garbage cans,
ii. reduce staining on driveways from grease spots,
iii. kitty litter may absorb small amounts of water from leaky toilets, such as the one in the tenant’s bathroom,
iv. kitty litter may also be used to get rid of spray paint on sidewalks,
HAMILTON COUNTY MUNICIPAL COURT
HAMILTON COUNTY, OHIO
L. Landlord,
Plaintiff
v. Case No.__________
Terry Tenant,
Defendant
Affidavit of Terry Tenant
After being duly sworn, the affiant stated as follows:
1. My name is Terry Tenant and I am the defendant in the above-captioned case. I currently live at 28 W. Allegheny, Cincinnati, OH 45202.
2. The occupant which the landlord and the electrician observed was in actuality my brother who was visiting from West Virginia. He was with me while looking for work. He has only stayed with me a few days. He has found a job and will be moving into his own place.
3. I am a very careful housekeeper and the trash and garbage was the result of the poor housekeeping habits of my brother. The picture attached as Exhibit G shows the premises after we cleaned it up.
4. I kept the kitty litter to absorb any moisture from the toilet that does not seem to working properly.
______________________________
Dated: ____________ Terry Tenant
HAMILTON COUNTY MUNICIPAL COURT
HAMILTON COUNTY, OHIO
L. Landlord,
Plaintiff
v. Case No.__________
Terry Tenant,
Defendant
Affidavit of John Tenant
After being duly sworn, the affiant states as follows:
1. My name is John Tenant, and I am the brother of Terry Tenant.
2. Up until a few days ago I lived in West Virginia and was unemployed.
3. My brother let me stay as a guest in his apartment while I find a job, which I did.
4. The garbage and trash in the residence was my fault. I am a slob, but my new girlfriend says that she can fix me. Terry and I cleaned the premises and attached the before and after pictures as Exhibit G.
5. The kitty litter was in the bathroom because we thought we may need it to absorb water from the toilet, if it started leaking.
6. I watched the pornographic DVD without my brother’s knowledge. I did not know that I had the volume up so loud, due to a work-related hearing problem I have from when I worked in the West Virginia mines. I am moving out into my new place with my new girlfriend, so that will not continue being a problem for my brother.
_________________________________
John Tenant
Dated: ____________
Exhibit G
HAMILTON COUNTY MUNICIPAL COURT
HAMILTON COUNTY, OHIO
L. Landlord,
Plaintiff
v. Case No.__________
Terry Tenant,
Defendant
Exhibit List
Exhibit Letter Exhibit Description
A Lease Agreement dated 11/1/06
B Smoke Alarm Agreement dated 11/1/06
C Affidavit of L. Landlord
D Affidavit of Lech Triscian
E Affidavit of Terry Tenant
F Affidavit of John Tenant
G Before and after picture of apartment
H Move In/Move Out Checklist dated 11/1/06
References
Codes.ohio.gov (1986). Ohio Revised Code - Landlord/Tenant. [online] Retrieved from: http://codes.ohio.gov/orc/5321 [Accessed: 8 Jul 2013].
Communitylegalaid.org (2012). Overview of the Eviction Process. [online] Retrieved from: http://www.communitylegalaid.org/library/housing/564-overview-of-the-eviction-process [Accessed: 8 Jul 2013].
Dayton-ombudsman.org (2001). Landlord and Tenant Rights and Duties Under Ohio Law. [online] Retrieved from: http://www.dayton-ombudsman.org/llt.htm [Accessed: 8 Jul 2013].
Moore, G. (n.d.). CatStuff: Other Things You Can Do with Kitty Litter. [online] Retrieved from: http://user.xmission.com/~emailbox/otherlitter.htm [Accessed: 9 Jul 2013].
Ohiobar.org (2013). Tenant/Landlord Rights and Obligations. [online] Retrieved from: https://www.ohiobar.org/ForPublic/Resources/LawFactsPamphlets/Pages/LawFactsPamphlet-11.aspx [Accessed: 8 Jul 2013].
Ohiolegalservices.org (2003). OHIO LANDLORD-TENANT LAW What You Should Know. [online] Retrieved from: http://www.ohiolegalservices.org/public/legal_problem/housing/ohio-landlord-tenant-law-what-you-should-know/ohio-landlord-tenant-law-what-you-should-know [Accessed: 8 Jul 2013].
