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Late rent payments: Do’s and don’ts for landlords
SHERRY KARABIN
Legal News Reporter
Published: January 28, 2014
As the economy continues to recover, it’s a good bet that some tenants may still be having trouble paying their rent on time.
As Buckingham, Doolittle & Burroughs associate Matthew R. Duncan explains, Ohio law dictates that rent payments are due on the date established in the rental agreement between the landlord and tenant. Although the law allows for rental agreements to be either verbal or written, it is preferable that they be in writing, he said.
When a tenant fails to pay on time a landlord may decide to start eviction proceedings. But what happens if the tenant then tries to pay back rent? Can a landlord still accept a late payment without tipping the legal scale toward the tenant?
“Ohio law generally favors tenants when it comes to rights like property maintenance, privacy and health and safety issues, but when it comes to nonpayment it’s pretty straightforward. If the tenant doesn’t pay the rent the, tenant does not have the right to be there,” said Duncan.
According to Ohio Revised Code (Section 1923.04) a landlord who wants to begin an eviction proceeding must serve the tenant with an eviction notice three or more business days before beginning the action, said Duncan. The notice should be delivered via certified mail, return receipt requested, in person by handing a written copy of the notice to the defendant or by posting it at the premises where the eviction would take place.
He said the notice language should contain the following warning in bold print and capital letters: “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.” Duncan suggested using the same wording for an eviction notice for commercial property.
He said having an attorney review the lease prior to issuing the notice is key because, depending upon the terms of the lease and the language, a landlord might be required to provide additional notice before beginning an eviction action.
Once a notice is given, the landlord can begin the eviction proceeding, meaning a “forcible entry and detainer action” in court.
Oftentimes this is when tenants try to “fix” their problems. If a check is offered covering past rent that accrued before the notice was served, Duncan said it can be accepted, but if any money for future payments is included or the tenant alleges that that was the case, a landlord may find himself or herself back to square one.
For example, he said if a notice was posted Dec. 5 and a landlord then accepted rental payments accruing up to Dec. 4, there is Ohio case law that supports an eviction going forward. However, if the check included payment for rents accruing from Dec. 5 and beyond, the court would deem it to be a waiver of the notice and the landlord would need to re-post the three-day notice after the tenant missed another rental payment.
“If there is any question as to whether a rental payment is intended to be for rent accruing after the three-day eviction notice is posted it is best for the landlord not to accept the payment if he or she wishes to go forward with an eviction,” said Duncan.