Albreqt v. Chen

Decision Date06 May 1983
Docket NumberNo. L-83-042,L-83-042
Citation17 Ohio App.3d 79,477 N.E.2d 1150,17 OBR 140
Parties, 17 O.B.R. 140 ALBREQT, Appellee, v. CHEN, Appellant.
CourtOhio Court of Appeals

Syllabus by the Court.

1. A provision in a lease agreement regarding carpet cleaning that is inconsistent with R.C. 5321.16(B) is unenforceable.

2. In drafting R.C. 5321.16(B), the intent of the legislature was to require prompt refunds of security deposits, less lawful deductions. Lawful deductions include: (1) past due rent; (2) damages suffered by the landlord by reason of the tenant's noncompliance with R.C. 5321.05; or (3) damages suffered by the landlord by reason of the tenant's noncompliance with the rental agreement. (R.C. 5321.16[B], construed.)

3. Before a landlord can withhold all or any portion of the security deposit of a tenant who has properly cancelled a month-to-month tenancy, the landlord is required to apply said security deposit, first, to past due rent. Thereafter, he is required to itemize, in a written notice delivered to the tenant, any damages he claims were occasioned by a violation of R.C. 5321.05 or the lease. Failure to follow this procedure, accompanied by a withholding of the security deposit, or any portion thereof, will trigger the penalties set forth in R.C. 5321.16(C) regarding attorney fees.

David Karmol, for appellee.

Arnold

Gottlieb, Toledo, for appellant.

HANDWORK, Judge.

This is an appeal from the Maumee Municipal Court. The facts are basically undisputed and may be summarized as follows. Plaintiff-appellee, Nona Albreqt (hereinafter "appellee"), entered into a written lease with Dr. S.C. Chen, defendant-appellant (hereinafter "appellant"), for certain premises located in Maumee, Ohio. The term of said lease commenced on July 15, 1981. Appellee provided a security deposit to appellant, the landlord, in the amount of $285 when the lease was signed. On October 30, 1981, appellee notified appellant, both orally and in writing, of her intention to vacate said premises on December 1, 1981. On December 1, 1981, appellee vacated said premises and tendered the keys to appellant along with her forwarding address as required by law. Appellant refused to accept either the keys or the forwarding address. Subsequently, appellee mailed the keys and her forwarding address to appellant. While the duration of the original lease was for one year, the trial court found that it had been modified so as to become a month-to-month tenancy. This finding of fact was not disputed by appellant, and thus it is not presently a matter before this court.

The litigation commenced when appellee filed suit against appellant, seeking the return of her security deposit. Appellant counterclaimed, alleging breach of the written lease and demanding certain damages. Following a trial, judgment was granted in favor of appellee in the amount of $670, which represented the full return of the security deposit, additional damages in the same amount, as provided for in R.C. 5321.16(C), and attorney fees of $100. The trial court also made certain findings of fact. Appellee has cross-appealed from that portion of the court's judgment awarding her attorney fees. Appellant's counterclaim was denied. In bringing this appeal, appellant sets forth the following assignments of error:

"1. The trial court erred in penalizing landlord by awarding tenant double damages and attorney fees pursuant to Section 5321.16 of the Ohio Revised Code since landlord sent notice of itemized deductions to the tenant within the prescribed time period of that statutory provision.

"2. The trial court erred by not giving appellant credit for the stipulated carpet cleaning damages."

This court is satisfied that the rationale of Riding Club Apts. v. Sargent (1981), 2 Ohio App.3d 146, 440 N.E.2d 1368, is dispositive of the question presented in the second assignment of error. Factually, the cases are similar. In the Riding Club Apartments case, the appellant-tenant alleged that retention of his security deposit by the appellee-landlord, without any itemization of damages, as required by R.C. 5321.16(B), was unenforceable. The lease in that case provided, in part:

" * * * Futhermore, in the event tenant vacates the premises prior to the termination date, a charge of $150 will be deducted from said security deposit as an amount necessary or incidental to prepare said premises and secure a new tenant therefor. * * * "

Such a clause is not unlike paragraph 31 of the lease sub judice, which provides, in pertinent part:

" * * * Tenant assumes and agrees to pay a charge of $60.00 Dollars ($60.00) for the cleaning of the carpeting in said apartment upon the vacation of said premises. * * * 'Tenant' agrees that said $60.00 Dollar charge will be deducted from said security deposit over and above any other charges to be deducted from said deposit as herein provided[.] * * * "

In the Riding Club Apartments case, the Court of Appeals for Franklin County held:

"A liquidated damages clause permitting the landlord to retain a security deposit without itemization of actual damages caused by reason of tenant's noncompliance with R.C. 5321.05 or the rental agreement is inconsistent with R.C. 5321.16(B), may not be included in a rental agreement and is not enforceable (R.C. 5321.06)." (Emphasis added.)

As applied to the facts herein, we adopt and follow the rationale of the opinion of the Tenth District Court of Appeals in Riding Club Apts. v. Sargent, supra. In this case, the trial court affirmatively found that when appellee vacated the apartment, the carpet was just as clean as or cleaner than when appellee initially moved into the apartment. Therefore, under the circumstances, appellee is not responsible for the cost of any carpet cleaning. In the absence of an affirmative showing, by way of itemization (see R.C. 5321.16[B] ), that there was a specific need to clean the carpet, appellant's unilateral deduction was improper. A lease provision regarding carpet cleaning that is inconsistent with R.C. 5321.16(B) is unenforceable. Cf. Riding Club Apts. v. Sargent, supra, at 147, 440 N.E.2d 1368. Consequently, the second assignment of error is not well-taken.

The issues raised by appellant's first assignment of error require a careful analysis of R.C. 5321.16(B) and (C). This section of Ohio's landlord-tenant law deals with security deposit procedures.

R.C. 5321.16(B) and (C) state:

"(B) Upon termination of the rental agreement any property or money held by the landlord as a security deposit may be applied to the payment of past due rent and to the payment of the amount of damages that the landlord has suffered by reason of the tenant's noncompliance with section 5321.05 of the Ohio Revised Code or the rental agreement. Any deduction from the security deposit shall be itemized and identified by the landlord in a written notice delivered to the tenant together with the amount due, within thirty days after termination of the rental agreement and delivery of possession. The tenant shall provide the landlord in writing with a forwarding address or new address to which the written notice and amount due from the landlord may be sent. If the tenant fails to provide the landlord with the forwarding or new address as required, the tenant shall not be entitled to damages or attorney fees under division (C) of this section.

"(C) If the landlord fails to comply with division (B) of this section, the tenant may recover the property and money due him, together with damages in an amount equal to the amount wrongfully withheld, and reasonable attorneys fees." (Emphasis added.)

Appellant contends that he did provide timely itemization of damages, and thus the penalty provisions of R.C. 5321.16(C) were inapplicable. Appellant further contends that, given the factual findings of the trial court, he should be liable only for the return of the security deposit, less the carpet cleaning fee. Given our holding with respect to the second assignment of error, said fee may not be deducted. The question thus becomes whether appellant is liable for $285, $670, or some other amount.

In drafting R.C. 5321.16(B), the intent of the legislature was to require prompt refunds of security deposits, less lawful deductions. Lawful deductions include: (1) past due rent; (2) damages suffered by the landlord by reason of the tenant's noncompliance with R.C. 5321.05; or (3) damages suffered by reason of the tenant's noncompliance with the rental agreement. See R.C. 5321.16(B). Appellant never contended that past rent was due and owing. A careful study of the record, in the context of R.C. 5321.05, compels us to conclude that of the items deducted, only one was proper. The remainder so deducted were contrary to law. In his notice of December 3, 1981, appellant claimed the following items as damages:

                "(1) Carpet cleaning (article 31)                                        $30.00
                "(2) Bathroom towel rack repair                                            8.00
                "(3) Bathroom wallpaper water damage, wall paper and plaster repair       65.00
                "(4) Curtain rods in the living room (article 40) Drapery rods in the     32.00
                  bedroom (article 40)
                "(5) Ad in the Blade (article 23)                                         90.50
                                                                                        -------
                TOTAL                                                                   $225.50
                DEPOSIT                                                                 $285.00
                                                                                        -------
                BALANCE                                                                  $59.50
                

"I am applying the balance toward the rent, and I shall make best effort to rent the premises; but until then, you are still responsible according to the lease."

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    • United States
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