Problems Associated with Filing Evictions from Out of State
It is not uncommon for a person to own rental property in another state, either because of inheritance, a good business opportunity, or because of a sudden employment move after which a residence could not be sold. In such cases, the out of state owners will often attempt to rent the property to tenants to cover the mortgage or to otherwise make money on the investment.
Problems arise when the tenants violate the lease agreement and need to be evicted. The eviction process typically involves at least two and possibly four trips to the Ohio county in which the property is located.
Let’s take a quick summary look at a typical eviction so that the out-of-state landlord can understand the problems he or she is facing with an Ohio eviction. First, after the breach of the lease agreement someone has to go out to the premises to post a proper three day notice on the door. Many landlords think they can serve a three day notice via certified mail but it is unlikely the tenant will sign for it. It is much better to post the notice on the door.
Once the notice is posted, someone needs to visit the property to see if the tenants have left after the three day period has ended. If the tenants are still in possession, the landlord must file a forcible entry and detainer action also known as an eviction action. Filing the eviction complaint can be done by mail without coming to Ohio but you better get it right with enough copies and the right amount for filing fees or the clerk of courts might just mail back your filings and you will have to start over again.
Filing an eviction complaint is not the same as posting a three day eviction notice. Many landlords seem to confuse the two. To start the eviction process in Ohio, a three day eviction notice must be posted on the tenant’s door. When that three day notice expires and the tenants have not left the premises, a landlord may then commence an eviction action by filing an eviction complaint in the county court where the rental premises is located. Generally, you would attach the three day eviction notice to the eviction complaint.
Then the court will notify the landlord and the tenant of a hearing date on the issue of who has the right to possession of the premises. The eviction hearing usually takes place two to three weeks after the filing of the eviction complaint. The landlord will have to attend the eviction hearing. If the tenant shows up and asks the court for a continuance, some courts will reject that request unless the tenant has a darned good reason. But other courts will grant such requests as a matter of course even for the most unsavory reasons and the landlord may have to come back again next week or at the next scheduled hearing date.
If the possession/eviction decision is made in favor of the landlord, the landlord will have to get a writ of restitution which is basically a court order giving the landlord possession of the rental premises. Some courts have forms available for the application for this writ which can be filled out and submitted just after the eviction hearing. Others require the landlord to bring an entry for the magistrate and the judge to sign granting the writ of restitution.
Then the bailiff or sheriff will serve the writ on the door of the rental premises. Some courts allow the tenant to stay a few days after the writ. For instance, once a Writ of Restitution is posted in Franklin County, the tenant has five calendar days to get out or he or she faces a set out. But in other counties, the tenant is told of the day the writ of restitution will be posted (usually a week or so in the future) and the tenant is notified that the locks will be changed and all possessions set out on the date the writ is posted.
The landlord must usually travel back to Ohio one last time to be there to hire a locksmith and a work crew and to meet with the bailiff at the rented premises for the set out. The travel costs inherent in this can make this a daunting task.
There are several ways to conduct the eviction to lessen these problems however. Each has its advantages and disadvantages.
Hiring a Property Manager
The first way is to seek the services of a local property manager. While the landlord must show up for the eviction, the Ohio Revised Code defines a landlord under R.C. 5321.01 as the owner or the rental manager. If you have a good rental manager, then that rental manager will know a local attorney who can file the eviction and then the rental manager and the attorney will attend to everything that needs to be done in the eviction.
However, the disadvantage is that rental managers cost money and usually take a percentage of the gross rents. Further, such managers may have steep charges for conducting an eviction.
Having Assistance from a Local Friend or Relative
But what constitutes a “rental manager” under the law is not strictly defined. Your sister who still lives in the area and who helps you coordinate with the tenant qualifies as a rental manager. The same is true of a friend. There is no license requirement for being a rental manager; however, that relative may not be able to represent you in court.
Hiring an Attorney and Filing Affidavits
But if you don’t have anyone local who can help you, you may benefit from a third option which would be to hire an attorney well-versed in eviction proceedings and attempt to conduct the eviction through affidavits. You or your rental manager would post the three day notice on the door and then execute an affidavit (a written statement sworn to in front of a notary) stating that you posted the three day notice on the door while the tenant was behind on the rent, that the tenant is still behind on the rent, and still in the premises) and then file that with the complaint or present it to the court.
There are two problems with this strategy though. First, many courts do not accept affidavit testimony at these hearings. Secondly, even in the courts that do accept affidavit testimony, if the tenant shows up and contests the facts of the affidavit, the court may have to continue the hearing so that you can come in and actually appear. Thus you may have to incur some travel costs.
Hiring an Attorney Familiar with the Problems Facing Out of Town Landlords
A third way is to hire an attorney well-versed in conducting evictions for landlords who live out of state. These attorneys will have persons who for a reasonable fee will post the door with the proper three day notice, check the property to see if the tenants have left, work with you to familiarize them-selves with the rental history of the premises, and then appear and testify at the hearing.
It is necessary to hire a third person to do all this. The attorney can’t do it because he cannot both testify and advocate in the same case.