Constructive Eviction Weakened by Continued Tenancy

If you stay too long in an apartment that you think is unfit for habitation, you can hurt your chances of arguing constructive eviction and breach of the warranty of habitability.

In the case of Bogner v. Titleist Club, LLC, 2006 Ohio App. LEXIS 6904 (December 29, 2006) Wood Co. App. No. WD-06-039, the tenants leased an apartment on August 1, 2001. Within two weeks after moving in, many items in the apartment needed repairs, including a broken patio door, broken light fixture, unlevel cupboard shelves, missing door seal, malfunctioning dryer and air conditioner, nails through the carpeting, and mold and excess moisture in the bathroom. The landlord failed to complete repair of any of the reported defects. Despite the lack of repairs, the tenants renewed their lease for a second year beginning August 1, 2002 to June 30, 2003.

A new landlord purchased the apartment complex in March 2003. The tenants continued to complain about the various repair problems, but no repairs were made. The tenants claimed constructive eviction against the landlord. A constructive eviction occurs when some act of interference by the landlord compels the tenant to leave. 65 Ohio Jurisprudence 2d (1996) 190, Landlord and Tenant, Section 173. Premises made uninhabitable by some wrongful act or omission of the landlord may be grounds for a constructive eviction, provided the tenant actually quits the premises. Harpel v. Pierce, 1999 Ohio App. LEXIS 305 (February 5, 1999), citing to 65 Ohio Jurisdiction 2d (1996) 193 Landlord and Tenant, Section 176; and Katz v. Comisar (1930), 28 Ohio Nisi Prius (N.S.) 10, 11(affirming a jury verdict that found a vermin infestation-specifically, bed bugs-constituted a constructive eviction).

Pertaining to constructive eviction, Ohio Revised Code Section 5321.07 provides that, if a landlord has been provided with written notice of and fails to remedy conditions of the premises that could materially affect the health and safety of an occupant, the tenant has three options: 1) place the rent in a court escrow account; 2) apply for a court order to have the landlord remedy the conditions and for a reduction in rent until such remedies are effected; or 3) terminate the rental agreement.

The Court held that the primary cause for the constructive eviction claim was that the moisture and mold was causing appellants to have medical problems. But since no evidence was presented to establish that the mold constituted a hazard which was serious enough to require appellants to vacate the premises, the court found that what the record indicated was that the tenants lived with the problems for two years while allegedly complaining to the landlord without any action. Appellants eventually tired of the ongoing unresolved problems and terminated the rental agreement.

The Court found that even presuming appellants established constructive eviction, they utilized one of the statutory remedies and vacated the apartment. Therefore, the court concluded that the tenants failed to present evidence that they were constructively evicted and summary judgment was properly granted.

The tenants also made a similar claim to constructive eviction, that being breach of warranty of habitability.

A landlord is statutorily required to “make all repairs and do whatever is reasonably necessary to put and keep the premises in a fit and habitable condition.” Ohio Revised Code Section 5321.04(A)(2). In other words, in order to maintain a claim under Ohio Revised Code Section 5321.04(A)(2), a tenant must show that the premises are unfit and uninhabitable.

But that court found in this case, that the tenants had presented no expert testimony to show that any alleged mold or other conditions made it impossible for them to live under the conditions in the apartment. Rather, the facts indicated that tenants actually continued to occupy the apartment for two years under substantially the same conditions before deciding to move out. The Court found that while the conditions may have been annoying and perhaps the cause of some discomfort, no evidence was presented that the alleged defects made the apartment wholly unfit or uninhabitable. Therefore, the court of appeals found that the trial court properly granted summary judgment as to the breach of “warranty of habitability” claim.