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.

How to get out of your lease

by Eric E. Willison, Esq. and

Andrew J. Ruzicho II, Esq.

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Things seemed to be okay until July 2007. On July 1st my car was broken into in my carport in the parking lot. I can understand random acts, but when I went to the police to file a report I learned that many break-ins had been occurring in this area. The police officer even told me that a man was almost beaten to death last summer in that parking lot.

I went to the manager of the complex and she stated, You live in this town what did you expect. During this conversation I learned that she hadn’t lived on property for the past three years. She told me that it wasn’t her job to follow up on crime in the neighborhood. She told me that Block watch tried to come into the neighborhood but she was unsuccessful with it. So I went home to my apartment and called block watch. I spoke with Michael who stated that he’s been trying for years to get a watch over there but he can’t because the management won’t let him patrol the area, because its private property.

So I began noticing things such as the doors being propped open so anyone could walk through the building. Gates were always up. I called management several times with no success. Since I lived in this apartment, I had problems with my lock on my door. I had no plate on the lock so the door could easily have been pushed open. I asked several times for it to be fixed and I basically got the answer that I was nuts and the door was fine. During this time I called the owners of the apartment complex twice a day. I sent letters and had response. I couldn’t get past the secretary. So I mailed my keys certified mail to the owners, broke the lease, and I moved out the last day of September.

I have a friend who lives in the area and he told me that someone lives in this apartment already. My problem is that on Sept 6, 2007 I received a letter stating I owed $1400 due in 10 days. The letter was dated 8/28/07. They want me to pay for the termination (two months), $90 to clean the carpets, and another $275 for painting. They also want 440 for my month free rent in May.

My feeling is I had $3000 dollars worth of damage to my car, no safety was given to me and my signing of the lease was under false impressions seeing that I went on the word of the manager that it was a safe complex to live in. I’m a single white female and of course I take precautions in the city, but I can’t fight the facts of the building.

What do I do. Do I just suck it up and pay them, or do I have a warranted fight on my hands. Please let me know. I have no idea what to do. Thank you for your help.

A: It sounds like you have several issues which may help you break your lease. If someone else is now living in the premises then you have a good argument against rent damages for breaking your lease. The landlord can’t collect double rent for months the remained on your lease when the unit was rerented for those same months. If the landlord has installed security measures which are broken or intentionally turned off then you may have another good argument for breaking your lease. You rented the apartment with the understanding that these security measures would be in effect. If they are not, then the landlord has not upheld her end of the bargain and this may justify you breaking your lease.

You can read up on other ways to get out of your lease agreement read more here.

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But if the landlord does not have the place up to code, and you call the code inspector and the code inspector cites the landlord for several violations, the landlord will have to bring the place up to code. If the landlord does not bring the place up to code, the the code inspector could post a 24 hour notice to vacate upon the rented premises, and then have you and your things tossed out the next day. If this happens, this would be a breach of the “quiet enjoyment” clause of the lease agreement on the part of the landlord.

Once you can show that the landlord has breached the lease agreement, then this absolves you of the duty to pay further rent on the lease.

So calling the code inspector may be one way to get out of your lease, but you should be warned that it might happen sooner (24 hours) than you think. So be ready to go if you summon the code inspector out to your place.

You can read up on other ways to get out of your lease agreement read more here.

Answer: In Ohio (many other states have similar statutory protections requiring the landlord to maintain appliances like furnaces), if the lease requires the landlord to install a new furnace, then the landlord’s failure to do so will entitle the tenant to the protections of Ohio Revised Code Section 5321.07 (one of which is to break her lease). In other words, the failure to install the new furnace would be treated as a failure to remedy defects at the apartment. A tenant should provide the landlord with written notice of the condition to be remedied (lack of furnace) and deliver it in a manner that she can prove that the landlord received the written notice. If the landlord does not resolve the problem within 30 days or within a reasonable amount of time (whichever is shorter) then the tenant can escrow rent with the local clerk of courts, sue to compel the landlord to remedy the problem, or terminate (break) the lease provided the problem warrants lease termination. I would also think that the tenant could sue the landlord for breach of lease and attempt to recover the difference between the rent she paid and the actual value of the apartment without a furnace and without a sink.

Learn about all the options you have for getting out of your lease here.

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When we left, they listed the house for rent for $775. At $750 it was hard to rent, they will not get anyone for $775 - not in that area or in the condition the house is in (the roof leaks.) They were lucky when we got suckered in - we were very good tenants. We cleaned the place up, hauled off a dump truck of trash, always on time with rent, fixed various small things in the house - leaking faucets, etc.

First question is, can they advertise it for rent for more than we were paying? That will make it more difficult to rent - they have only had 1 person even look at it in the 3 weeks we have been gone.

Second question is, they knew we were moving 3 weeks before we actually moved on 9/15 - yet they did not start advertising for rent until 10/1. Is this right?

Answer: It sounds as if those may be moot points if the landlord found a new tenant after you broke your lease. They can advertise it for more than you were paying in rent but this would also give you a strong argument that you are not responsible for additional rent while it sat vacant. The landlord could argue that the new rental price was what the market would bear. I think you would be in a stronger position despite breaking your lease. Generally, landlords have a duty to rerent or try to rerent the apartment as soon as they find out that you must break your lease. Not sure why they waited 3 weeks. But the landlord could have reasons.

In my publication, I advise renters to offer to pay a percentage of the rent, even though they have broken the lease, so that the landlord can offer the place for rent at a discount. Chances are it will get rented faster and the tenants who broke the lease will be only partially liable.

Learn about all the options you have for getting out of your lease here.

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Answer: If the matter goes to a court, the court will read the lease as it is written and enforce this clause. Even if the lease clause is ambiguous, so long as your interpretation of the ambiguity is reasonable, the lease will be construed by the court against the drafter (meaning that the intepretation of the person who drafted it will lose out). This is justified because the drafter (usually the landlord) was in the best position to say what he meant, yet failed to speak clearly on the issue.

Learn about all the options you have for getting out of your lease here.

Don’t make the same mistakes yourself!

1. Renters vacate the apartment without providing any notice to the landlord.In most states, a notice of intent to vacate actually shifts the burden to the landlord to attempt to rerent the apartment. Generally, if the landlord rerents the apartment for what you paid or for more, your liability for rent ends at that point. If the landlord receives no notice of your intent to move out, the landlord generally does not have this burden until much later. All during that time, you are incurring liability for unpaid rent. Learn how to give proper notice of your intent to vacate and reduce your liability for additional rent, rerental fees and other damages.2. Renters fail to adequately document the condition of their apartment when they do leave to break the lease.Landlords seeking revenge have no qualms charging you for damages that didn’t exist especially after you’ve unlawfully broken a lease. Learn the proper way to document the condition of your apartment before you break your lease so that you can reduce your potential liability for damages.3. Renters assume that job transfers automatically get them out of leases.

Know the law in your state, before you trust the advice of your nonlawyer friend.

4. Renters take a landlord’s word that he will let them out of their lease when they find a house to buy.

Fat chance! Unless it is in writing, generally, a landlord’s verbal promise doesn’t change the written agreement, i.e., your lease. Your landlord will hold you to the lease and won’t let you get out of your lease. How’s the monthly mortgage payment AND rent payment now? Learn how to properly make amendments to your rental agreement so that you can hold your landlord to his verbal promises.

5. Renters don’t know the laws in their state and assume they have no options to get out of their lease or to break it.

As many as 10 strategies exist for getting out of your lease. Knowledge is power. Know the law in your state about getting out of your lease.

6. Renters don’t know how to effectively negotiate with their landlord.

What are your bargaining strengths in this situation? Don’t let your landlord tell you that you have no bargaining leverage when you try to get out of your lease. Know the law in your situation and increase your bargaining power against your landlord.

7. Will a landlord’s unlawful entries get you out of your lease?

Only if you follow the correct procedure in addressing those unlawful entries. What’s the law in your state?

8. What if your roommate backs out of signing the lease?

Are you stuck renting the apartment alone? Can you still get out of your lease?

9. What if the landlord couldn’t give you possession of the apartment immediately?

Are there ways to get out of your lease in such a situation?

10. Is the landlord failing/refusing to make repairs to the apartment?

Do you know if your state has a procedure that could lead to getting out of your lease if the landlord continues to not make repairs? Follow the correct procedure in your state and get out of your lease early. Fail to do so and find yourself in court.

11. Lessee acknowledges that any security measures provided by Lessor shall not be treated by Lessee as a guarantee against crime or a reduction in the risk of crime.

Seen this before? Can you get out of your lease because of crime nearby or because you feel unsafe in the apartment?

Consider our publication, “How to get out of your lease,” in which we go through 10 strategies that you may be able to employ, depending upon your situation, to get out of your lease.

Bookmark this page - you’ll be back!

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Testimonials After being fed up with my landlord’s refusal to make much need repairs at my apartment for almost four months, I bought a copy “How to Get Out of Your Lease.” This publication showed me how to legally get out of my lease and provided me with a step by step way of doing it. Who knew? I thought I had no legal rights (at least, according to my landlord) and had to put up with his constant lies and delays. I wish I had bought it sooner. Thanks, Eric and Andy for all your help. - S. Gonzalez

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Excerpt from “How to get out of your lease”

B. Unauthorized Entries by the LandlordAs mentioned above, many states have specified that landlords must meet certain obligations. In Appendix I at the end of this publication, I have compiled a directory of state statutes that specify a landlord’s obligations with regard to unauthorized entries. To illustrate my point here, I am just going to reference Ohio law because the Ohio Landlord Tenant Act was based on the model landlord tenant act that many other state statutes were based upon. In the Appendix, I will spell out the differences your state may have when compared with Ohio.Revised Code Section 5321.04 (A)(8) states that a landlord shall give reasonable notice to the tenant before entering into the property unless there is an emergency or unless it is impracticable to do so (many other states have a similar statutory provision governing how and when landlords can enter the premises - see Appendix 1 for the laws in your state concerning a landlord’s right of entry). Twenty four hours is presumed to be reasonable notice unless the party asserting that it is not can show the court otherwise.Obviously, if the apartment is on fire, then the landlord need not give notice to anyone to enter and take steps to remedy the situation. If the tenant is out of town for a month and has not given the landlord a phone number to call for permission to enter, then it would likely be impracticable to give such notice. But similarly from the tenant’s point of view, if the tenant tells the landlord that he will be spending the weekend out of town and will be back on Monday, then having the landlord leave 24 hour’s notice on the tenant’s answering machine may be unreasonable as well.Here the law is recognizing the tenant’s right to quiet enjoyment of the premises. Part of quiet enjoyment is the right to exclusive use of the premises. If the landlord keeps coming in without notice to the tenant, then this is an interruption of the tenant’s right to quiet enjoyment and thus the landlord has breached the lease agreement.

Some courts have held that unauthorized entries are the same as a landlord’s failure of his duty to fix the premises. This means that after the first unauthorized entry, the tenant must send the landlord a letter informing him of the problem and that the landlord is not to do it again. If the landlord then does it again, then he has breached the lease and this will give the tenant the right to terminate the lease.

C. Calling the Housing Inspector

Your apartment is covered by local ordinances which require the landlord to keep residential premises up to the local health and safety codes. If the landlord fails to do this and the tenant brings this to the attention of the city inspectors, then the city inspectors - continued in publication and included are several other strategies for breaking your lease legally!

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Product Details - “How to break a lease”

Searchable Pdf ebook - 156 pagesView (print) with Adobe Acrobat ReaderPublisher - R&W Publishing (September 21, 2006)copyright 2006ISBN - 0978899636

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Inside this PDF eBook

• • How to legally break a lease
  • 10 proven strategies to help you get out of your lease
  • What reasons won’t work for breaking a lease
  • How to limit potential liability if you do break your apartment lease
  • How to assemble documentation and evidence to defend against a suit for breaking your lease
  • How to answer a complaint for early lease termination and assert a counterclaim
  • Sample answer in response to breaking a lease
  • Sample counterclaim
  • Sample lease termination letter
  • Appendix of individual state statutory provisions relevant to breaking a lease
  • Less than $16 now may result in saving hundreds or even thousands of dollars in future rent
  • Lease termination agreement
  • Sublease agreement to pursue option of subleasing
  • Formal request for repairs to build case for terminating lease for lack of repairs
  • Formal notification for security deposit to obtain security deposit where warranted
  • Notification of termination of month to month tenancy to put an end to rental liablity
  • Formal notification of non-renewal of lease to end rental liability
  • Formal notification of noise violations to build case for lease termination
  • Formal notification of unlawful entry by landlord to build case for lease termination
  • Formal notification of non-renewal of lease to end rental liability
  • Move out checklist for documenting condition of premises upon vacating to end/reduce liability for damages
  • All in Microsoft Word format

Everything you always wanted to know about how to break a lease, breaking a lease, and early lease termination - these strategies are applicable in all statesTopics covered include:

Additional essential forms (all in Microsoft Word format) recently added to our guide

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How to get out of your lease by Eric E. Willison, Esq. and Andrew J. Ruzicho II, Esq. ————————————– List Price: $19.95 Your Price: $11.97 Availability:Immediate receipt upon payment You will be redirected to download page after payment A copy will also be sent to your payment email address. ————————————-

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