I have an eviction hearing coming up. Do I have a good defense against it?
Any eviction defense starts with reviewing the eviction notice. Typical problems with the eviction notice include:
- Filing the eviction complaint with the court prior to the eviction notice expiring. – In many jurisdictions in Ohio, including Franklin County, the landlord has to wait until the eviction notice has fully expired before filing the eviction complaint with the court. Typically, the eviction complaint will have a time-stamped date on it indicating the date of filing. In Franklin County, there is a special formula for determining when the three day eviction notice has expired. The day of posting does not count, weekends and holidays (holidays when the court is closed) do not count. So if the eviction notice is posted on a Friday. Friday, Saturday and Sunday do not county. Monday (if it is not a holiday), Tuesday and Wednesday do count. Thursday would be the earliest day the landlord could file the eviction. An eviction filed on Wednesday would be premature and the tenant would point this out to the judge and ask that the eviction be dismissed. Some jurisdictions in Ohio allow for counting weekends and holidays.
- The landlord is limited to the reasons for eviction listed on the notice. The reasons for eviction in the eviction complaint must match those given in the eviction notice. Any reasons listed in the complaint that are not on the notice cannot serve as a basis for the eviction.
- The eviction notice must contain the exact statutory language required by law. “You are being asked to leave the premises. If you do not leave, an eviction action may be initiated against you. If you are in doubt regarding your legal rights and obligations as a tenant, it is recommended that you seek legal assistance.” This language must be exact and must be printed or written on the notice in a conspicuous manner (meaning that language must stand out from the other language on the notice). Many landlords obtain eviction notices off the internet that do not contain this Ohio language.
- If the landlord knows the name of an occupant, the landlord should include the name on the eviction notice and on the eviction complaint. Minor misspellings of names are not a defense to an eviction. Neither the landlord nor the tenant needs to sign the eviction notice.
- Tenants often claim that they did not receive the eviction notice. This claim generally will not serve as a defense if the landlord presents credible testimony that the notice was posted on the door.
- Some landlords try to text or email eviction notices. Texting or emailing the eviction notice is not proper service and is a defense to an eviction.
- Accepting any rent after posting an eviction notice. This is generally a defense to an eviction.
Other potential defenses to an eviction:
A landlord’s failure to make repairs is generally NOT a defense to an eviction unless the tenant has previously given the landlord 30 days written notice of the need for repairs and escrowed rent with the clerk of courts in the county in which the rental unit is located.
If the tenant has completely moved out and returned the keys to the landlord prior to the eviction hearing, this is a defense to an eviction. The tenant should attend the eviction hearing and state this to the court.
A landlord’s acceptance of late rent on multiple occasions in the past is a defense to a nonpayment of rent eviction if the tenant has attempted to pay the rent that is the basis of the current eviction and the landlord has refused it. A tenant seeking to use this defense should bring proof of multiple acceptances of late rent as well as proof of an attempt to pay the current rent owing.
A written agreement between the landlord and tenant purporting to resolve the eviction is a defense to an eviction action.
If the tenant has filed for bankruptcy that is pending at the time of eviction, this will stay the eviction action.
If a Limited Liability Company owns the rental property and the landlord does not have an attorney, the landlord must engage an attorney to proceed with the eviction.
If the tenant is protected under the Violence Against Women Act, that is a defense to an eviction action.
If the landlord has brought the eviction action in retaliation against the tenant’s assertion of his/her legal rights. ORC section 5321.02.
This list of defenses is not exhaustive but covers the vast majority of defenses to an eviction in Ohio.