Ohio has a broad landlord/tenant statute, Ohio Revised Code Chapter 5321, that contains tenant protections that landlords throughout Ohio must follow.

But in addition to those procedures and protections, the City of Cincinnati has its own laws providing extra regulation of the landlord/tenant relationship. We have written about some of those here, including rental registration, late fee regulation, and security deposit regulation. As we address here, it also layers more regulation than set forth in the Ohio Revised Code Chapter 5313 for Land Installment Contracts.

Hamilton County alone has 49 cities, villages and townships. These laws apply only in the City’s 52 neighborhoods, and none of the areas outside of City limits.

Now Cincinnati has enacted one more landlord/tenant regulation: a “pay to stay” ordinance, similar to laws passed in Toledo and Dayton, that allows tenants facing eviction for non-payment of rent to assert that rent has been paid, or that rental assistance has been applied for, as an affirmative defense in any proceeding. Here are the details:

  • A tenant can cure his lease default and maintain a right to continued occupancy in property prior to the filing of an eviction action by paying the full amount of delinquent rent plus the statutorily-permitted late fee (see above). Typically, this would be after the provision of a statutory 3-day notice to vacate, but before the filing of the eviction action.
  • Additionally, a tenant can cure his lease default after the filing of an eviction action, but before a writ granting possession back to the landlord, by paying (a) back rent in full, (b) up to $125 in attorneys fees, and (c) the court costs of the eviction action.

For assistance in landlord/tenant matters, contact Julie Gugino at 513.943.5669.

 

 

The Centers for Disease Control and Prevention on Friday clarified the nationwide eviction moratorium that it had issued on September 4, 2020, lasting through the end of the year. That clarification (“Frequently Asked Questions”) is linked here.

Some important points from the FAQ:

  • The Order does not prevent owners from commencing eviction proceedings so long as the actual eviction (which we interpret to mean the set out) does not take place until January. As we see it, this means that evictions can proceed to writ, but the set out must wait until January.
  • As set forth in this blog entry, the protection to a tenant under the eviction moratorium is trigged when the tenant signs a CDC form that certifies all of the following (every adult residing in the unit must sign the form for the moratorium to take effect).
    • The individual has used best efforts to obtain government assistance for the payment of rent.
    • The individual falls below the above-income thresholds.
    • The individual can’t pay rent due to loss of income or medical expenses.
    • The individual is using best efforts to pay the rent or as much of it as he can.
    • Eviction would render the individual homeless.
  • An owner may cross examine (or perhaps conduct discovery as the Court would allow) as to the truthfulness of those certifications. Previously, the rule was ambiguous on this point, leading to inconsistent application throughout the thousands of jurisdictions handling executions in the nation.
  • Landlord are not required to inform tenants of their rights under the CDC Order.
  • The clarification reiterates that (a) tenants still owe their rent and (b) tenants have a duty to make partial rent payments as they are able.
  • The clarification reiterates the criminal penalties for tenants making material misrepresentations on the CDC form.

Friday’s FAQ pronouncement tilts the effect of the moratorium in favor of landlords. Given that the set out in Ohio typically is six-to-eight weeks after the start of the process (the 3-day notice), the real delay in recovering possession of a landlord’s property from a non-paying tenant is now under 30 days.

The scope of the moratorium is limited to situations where the default is solely the non-payment of rent. Our firm has successfully worked with landlords who need to recover possession of their property from hold over tenants, squatters, those causing physical damage to property, those involving illegal use and sale of drugs, too many occupants and other lease violations.

Please call our experienced landlord/tenant litigators if you have questions. Contact Julie Gugino (513.943.5669) for more information.

 

If you have a business or residential property in Hamilton County that experiences flooding that includes sewer effluent, you may have a claim for repairs to damage, and retrofitting your property to prevent future flooding.

Master settlement with US EPA

In 2002, the US EPA, the State of Ohio, and others brought suit against Hamilton County and City of Cincinnati alleging that overflows of MSD’s sanitary sewer system violated the Clean Water Act and related Ohio laws and regulations. They challenged the capacity and pollution problems with MSD’s sewer system, including sewage overflows from MSD’s sanitary sewers, overflows from combined storm water and sanitary sewer lines, deficiencies at wastewater treatment plants, and backups of sewage into homeowners’ basements.

On December 3, 2003, a final settlement was reached with the Board of Commissioners of Hamilton County and City of Cincinnati. The case was pending in the U.S. District Court in the Southern District of Ohio. Under the settlement, Metropolitan Sewer District of Greater Cincinnati (MSD) agreed to bring its aging sewer system into compliance with the Clean Water Act.

Consent Decree creates Sewer Backup Program 

In June 2004, the Court approved two consent decrees aimed at eliminating all sanitary sewer overflows. The Consent Decree established a comprehensive framework for the County and City to develop and implement a long-term plan for infrastructure improvements to address the capacity and pollution problems with MSD’s sewer system. The Consent Decree also required the County and City to implement programs to prevent basement backups, clean up backups when they occur, and reimburse residents for property damages for sewer backup events. This probram is referred to as the Sewer Back Up Program (“SBU”), formerly known as the Water in Basement Program, whereby aggrieved homeowners who have experienced backups to their Property emanating from MSD sewers can recover their damages.

Claims process

There are multiple steps in the MSD claims process.

  • First, a homeowner who has experienced a backup to their Property must report the same within 24 hours, either at (513) 352-4900 (24 hours/7 days a week) or online here.
  • Second, that homeowner should fully document with photos and videos the backup, as well as all entry points, including sewer drains at the Property.
  • Next, within 2 years of the date of the backup, a homeowner must complete and submit the Sewer Backup Claim Form available here.

MSD will conduct a technical evaluation and upon determination that MSD is responsible, assign the claim to a claims adjuster. Once the claims adjuster has completed its review, the proposed settlement is sent to MSD for legal review and once approved by MSD legal, a letter containing the settlement offer and release is sent to the Property owner, the Claimant. If the Claimant is in agreement with the settlement offer, he/she signs the release and returns it to MSD. If the claimant is not in agreement with the settlement offer, he or she may further discuss the amount with MSD or pursue the Review Process set forth by the Court, as set forth herein.

Review of decision by Federal Magistrate Judge

Claimants who are dissatisfied with MSD’s disposition of a claim under the SBU program may request review of the decision by the Magistrate Judge in Federal Court, whose decision is binding and not subject to any further judicial review. In accordance with the Consent Decree, Federal District Court case #C-1-02-107, the Claimant may file a Request for Review with the Federal Court in Cincinnati, Ohio. The Claimant should file that Request within 90 days with the Clerk’s Office of the Federal Court located in the Potter Stewart U.S. Courthouse, Room 103, 100 East 5th Street, Cincinnati, Ohio 45202. The Claimant may also call the court-appointed Ombudsman, the Legal Aid Society, at (513) 362-2801 for further information.

In determining the cause of an SBU, MSD must exercise its good faith reasonable engineering judgment and consider the following non-exclusive factors: amount of precipitation, property SBU history, condition of the sewer system in the neighborhood, results of a visual inspection of the neighborhood to look for signs of overland flooding, neighborhood SBU history, capacity of nearby public sewer lines, and topography. United States v. Bd. of Hamilton County Comm’rs, 2014 U.S. Dist. LEXIS 157434, *17-18 (S.D. Ohio Nov. 6, 2014).

Damages that can be recovered

Damages arising from basement backups for which MSD is responsible are limited to documented real and personal property. Under the Consent Decree, “[d]amages will be paid for losses to real and personal property that can be documented” and “[c]laimants will be asked to submit copies of any documents that they may have that substantiate the existence and/or extent of their damages.” (Doc. 131, Exh. 8 at 2-3). United States v. Bd. of Hamilton County Comm’rs,2014 U.S. Dist. LEXIS 37601, *27 (S.D. Ohio Mar. 20, 2014).

The Claims Process will only reimburse for damages arising from basement backups caused by inadequate capacity in MSD’s Sewer System or that are the result of MSD’s negligent maintenance, destruction, operation or upkeep of the Sewer System. United States v. Bd. of Hamilton County Comm’rs, 2014 U.S. Dist. LEXIS 37601, *22-23 (S.D. Ohio Mar. 20, 2014). Claimants seeking a review of the denial of an SBU claim bear the burden of proof of showing that the backup of water into their property was due to inadequate capacity in MSD’s sewer system (a sewer discharge) and not overland flooding.

Inadequate capacity versus overland flooding

However, Courts have found that there is nothing in the language of the Consent Decree that limits recovery where the evidence shows damages were concurrently caused by a combination of overland flooding emanating from MSD’s Sewer System and overland flooding not emanating from MSD’s Sewer System. The language of the Consent Decree does not require that SBU be the sole or greater cause of the damages sustained, or that damages should be apportioned where damages are caused by both SBU and overland flooding not emanating from MSD’s Sewer System. Under the terms of the Consent Decree, homeowners “who incur damages as a result of the backup of wastewater into buildings due to inadequate capacity in MSD’s Sewer System (both the combined and the sanitary portions) can recover those damages. . . .” United States v. Bd. of Hamilton Cnty. Comm’rs, 2016 U.S. Dist. LEXIS 46858, *10-11 (S.D. Ohio Mar. 29, 2016).

The Court has found that language of Consent Decree excluding overland flooding “not emanating from MSD’s Sewer System” necessarily contemplates circumstances where overland flooding in fact “emanates” from MSD’s Sewer System. Thus, where the public sewer discharges from the cover of the manhole and flows over ground and into a building, the terms of the Consent Decree cover any subsequent claim for damages. Accordingly, the Consent Decreedoes not bar claims for overland flooding which emanates from MSD’s Sewer System. United States v. Bd. of Hamilton County Comm’rs, 2014 U.S. Dist. LEXIS 37601, *23-24 (S.D. Ohio Mar. 20, 2014) The fact that overland flooding may occur and ultimately contribute to the lack of sewer capacity — resulting in a sewer surcharge does not exclude sewer backup as one cause of the damages sustained. The language of the Consent Decree does not require that SBU be the sole or greater cause of the damages sustained, or that damages should be apportioned where they are caused by both SBU and overland flooding not emanating from MSD’s sewer system. United States v. Bd. of Hamilton Cty. Comm’rs, 2017 U.S. Dist. LEXIS 79177, *19-20 (S.D. Ohio May 23, 2017).

Conclusion

If you have experienced a Sewer Back Up and would like assistance with the claims process or review of your claim in federal court, please contact Julie Gugino at 513-943-5669.

Ohio statutes provide that no person, without privilege to do so, shall knowingly enter or remain on the land of another or recklessly enter or remain on the land of another, where notice against unauthorized access is given by actual communication to the offender or by posting in a manner reasonably calculated to come to the attention of potential intruders or by way of fencing manifestly designed to restrict access.

Trespass is prohibited under Ohio law and subject to both criminal penalties and fines as well as subjecting the trespasser to a civil action in trespass. If individuals are trespassing on your Property by parking vehicles on the same, Ohio law sets forth the steps necessary to establish a tow zone on your private property.

O.R.C. §4513.601 provides that an owner of private property may establish a private tow-away zone on their property if the owner posts on the property a sign at least eighteen inches by twenty-four inches, that is visible from all entrances to the property and includes all of the following information:

(a) A statement that the property is a tow-away zone;

(b) A description of persons authorized to park on the property. If the property is a residential property, the owner of the private property may include on the sign a statement that only tenants and guests may park in the private tow-away zone, subject to the terms of the property owner. If the property is a commercial property, the owner of the private property may include on the sign a statement that only customers may park in the private tow-away zone. In all cases, if it is not apparent which persons may park in the private tow-away zone, the owner of the private property shall include on the sign the address of the property on which the private tow-away zone is located or the name of the business that is located on the property designated as a private tow-away zone.

(c) If the private tow-away zone is not enforceable at all times, the times during which the parking restrictions are enforced;

(d) The telephone number and the address of the place from which a towed vehicle may be recovered at any time during the day or night;

(e) A statement that the failure to recover a towed vehicle may result in the loss of title to the vehicle as provided in division (B) of section 4505.101 of the Revised Code.

Some other points of the statute:

  • In addition, the towing service utilized by the owner must ensure the vehicle is located within 25 linear miles of the Property, is well-lighted and is within a reasonable distance of a regularly scheduled route of one or more modes of public transportation.
  • If a vehicle is parked on private property that is established as a private tow-away zone without the consent of the owner of the private property or in violation of any posted parking condition, the owner may cause the removal of the vehicle by a towing service.
  • The vehicle owner and the operator of the vehicle are considered to have consented to the removal and storage of the vehicle, to the payment of the applicable fees and to the right of a towing service to obtain title to the vehicle if it remains unclaimed.
  • No towing service shall remove a vehicle from a private tow-away zone except pursuant to a written contract for the removal of vehicles entered into with the owner of the private property on which the private tow-away zone is located.
  • Additional requirements for the tow company exist within the statute.

If you’d like our assistance with a real property issue,please use our secure contact page, or call us at 513-943-6650.

 

Attorney Julie M. Gugino

“Joint and several liability” is a legal concept that provides that each obligor under a contract is fully liable for the obligations under that contract as to the other party to the contract (i.e, the party to whom the joint obligors are obligated).  So, in the instance that two or more guarantors sign a guarantee instrument to a bank for a loan, if they are “joint and severally liable,” it means that each guarantor owes the entire debt to the bank in the event of default.  The bank can’t collect twice the guaranteed amount, but it can choose which guarantor from which to obtain payment.

So, the question addressed in this article is “what is the default position as to joint and several liability on a contract if the instrument is silent on the topic?”  We address topic this under Ohio and Kentucky law.

The answer: In short, “joint and several” is the default interpretation absent language in the instrument that absolves parties of such liability.

General Contract Principles

A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. Restat 2d of Contracts, § 1 (2nd 1981). Further, where there are more promisors than one in a contract, some or all of them may promise the same performance, whether or not there are also promises of separate performances. Restat 2d of Contracts, § 10 (2nd 1981). Such is the situation when more than one individual signs a guaranty or a promissory note.

Standard contract language

The standard modern form to create duties which are both joint and several is “we jointly and severally promise,” but any equivalent words will do as well. In particular, a promise in the first person singular, signed by several persons, creates joint and several duties. Restatement (Second) of Contracts § 289 (1981). What this means is that, generally, under the common law, promises of the same performance create “joint” liability on the part of each promisor unless an intention is manifested to create a “solidary” obligation. Restat 2d of Contracts, § 289 (2nd 1981). However, many states have state specific statutes which have altered or refined this rule.

Common law when contract is silent

In Ohio, an individual signing a note as a co-maker with another individual is jointly and severally liable for the debt, except as otherwise provided in the instrument. Ohio Rev. Code Ann. § 1303.14(A). Star Bank, N.A. v. Jackson, 2000 Ohio App. LEXIS 5567, *1. Under U.C.C. Art. 3, a party signing a promissory note as a co-maker is jointly and severallyliable for the debt. Darrah v. Leakas, 1994 Ohio App. LEXIS 220, *1. As among themselves, co-makers are presumed liable in equal amounts, however, these rights are governed by the particular terms of the contract between the co-makers. Poppa vs. Hilgeford, 1982 Ohio App. LEXIS 13658, *1.

In Kentucky, likewise, in the absence of an express agreement to the contrary, when two or more individuals execute a note, such persons are jointly and severally liable to the holder, even though the instrument contains no such express provision.  KRS 355.3-118. Schmuckie v. Alvey, 758 S.W.2d 31, 33-34.

Duty of contribution from co-makers

As between or among themselves, however, in the absence of evidence of a contrary agreement, co-makers are presumed to be liable in equal amounts and a right of contribution, based upon an implied contract of reimbursement and not the instrument, exists between or among them. 11 Am. Jur. 2d, “Bills & Notes” § 588 (1963). Id.

Conclusion

What this means is that if you sign a note or guaranty or other like instrument with another individual, the holder of that note, in their sole discretion, can choose to recover the full amount against you and only you. As between you and your co-maker, depending on your agreement, you likely retain the right to seek contribution from them pro-rata.

For more information on commercial instruments and personal guarantees, contact Julie Gugino at (513) 943-5669.

Through the course of our representation of clients, they often encounter zoning codes which are outdated and properties that are non-conforming, often in vibrant flourishing neighborhoods.  This was the case for one client, who desired to seek a use variance for a property in Evanston, a stone’s throw from the burgeoning Walnut Hills neighborhood.

The challenge

In this case, the clients desired to purchase a block construction building that was zoned Residential Mixed Use and convert the same into an artisanal cheese making facility and retail store/tasting room. This building had previously been operated as a medical building and was constructed prior to implementation of the current Zoning Code. As a result, an 8,334 square foot block building sat vacant and unused, a blight to its community because of zoning that relegated it to Residential Mixed Use. As a result, we were retained to pursue a use variance on their behalf and assist them in their endeavors to “put Cincinnati cheese on the map and to begin that dream in the Evanston neighborhood.”

Variances under Cincinnati Municipal Code

Under §1445-15 of the Cincinnati Zoning Code a variance from the requirements of the Cincinnati Zoning Code can be granted, provided the condition giving rise to the request for the variance was not created by the current or prior owner.  In addition, a variance can be granted owing to special conditions affecting the property, where application of the Zoning Code would be unreasonable and result in practical difficulties. Finally, consideration is given as to whether the variance is necessary for the preservation and enjoyment of a substantial property right of the applicant possessed by owners of neighboring properties.

Showing of unnecessary hardship

In addition to these factors, under §1445-16 of the Code, no variance can be granted unless the applicant demonstrates it will suffer unnecessary hardship if strict compliance with the terms of the Code is required. Hardship is demonstrated by the following factors: (a) the property cannot be put to any economically viable use under any of the permitted uses in the zoning district;  (b) the variance requested stems from a condition that is unique to the property at issue and not ordinarily found in the same zone or district; (c) the hardship condition is not created by actions of the applicant; (d) the granting of the variance will not adversely affect the rights of adjacent property owners or residents; (e) the granting of the variance will not adversely affect the community character, public health, safety or general welfare; (f) the variance will be consistent with the general spirit and intent of the Zoning Code; and (g) the variance sought is the minimum that will afford relief to the applicant.

“In The Public Interest”

Finally, in order to obtain a use variance, an applicant must show the proposed variance “is in the public interest.” The factors considered under §1445-13 of the Code include: present zoning, community guidelines and plans, existing traffic, buffering, landscaping, hours of operation, neighborhood compatibility, proposed zoning amendments, consideration of adverse effects, the elimination of blight, economic benefit, job creation, effect upon tax valuations, and private and public benefits.

The wasted potential of a long-vacant property

In our clients zoning matter, an existing structure which did not conform to the Code had sat vacant for five years or more.  The zoning needs of the Property were unique to it and the hardship had not been created by the owner of the Property. Its impact on the immediate neighborhood as a vacant and blighted building were adverse, contributing nothing to the neighborhood, and detracting greatly from the same.

Making a difference for our client

Our clients were able to obtain a use variance and now that vacant building has been transformed into a cheese making facility and retail store/tasting room that will further transform this already bustling community.

Read more about their story here.