Ohio is one of a handful of states where a landlord is not required to accept past-due rent from a residential tenant after the posting of a 3-Day Notice and may instead move forward with the eviction proceedings. In an effort to provide greater protections for tenants, particularly in the aftermath of the Covid-19 pandemic, many Ohio cities have passed and/or introduced what is commonly referred to as “Pay to Stay” legislation. In August, the City of Cleveland passed its own “Pay to Stay” legislation by enacting Cleveland Codified Ordinance Section 375.13 Tenant’s Right to Assert Tender of Rent as an Affirmative Defense to Eviction.
Under C.C.O. Section 375.13 if after the posting of a 3-Day Notice, but before the filing of an eviction action, a tenant tenders all past-due rent and late fees to the landlord and the landlord refuses to accept, the tenant may use the landlord’s refusal to accept the tender as an affirmative defensive in any eviction action brought against them for non-payment of rent. If the eviction action has already been filed, in addition to all past due rent and reasonable late fees, the tenant is also required to tender court costs of the eviction action to the landlord in order to be able to use the landlord’s refusal to accept the tender as an affirmative defense.
Unlike other similar “Pay to Stay” legislation, Cleveland expressly states that tender of payment includes any emergency rental assistance vouchers from accredited social service, nonprofit, government, or quasi-governmental agency that guarantees the payment of past due rent, reasonable late fees, and court costs. Meaning that a payment made on behalf of the tenant and not just from the tenant directly as described above would entitle the tenant to an affirmative defense.
Since its passage, I have not yet seen a tenant take advantage of the “Pay to Stay” affirmative defense. Typically, absent extenuating circumstances, most landlords would happily accept the payment of back rent in full instead of moving forward with an eviction action. However, evicting on the grounds of non-payment of rent has often been advised as the clearest path to evicting a problem tenant leading landlords to wait for a problem tenant to miss a rent payment allowing them the opportunity to move forward with an eviction. Now, with the ability of the tenant to assert tender of payment in full as an affirmative defense, this is no longer the case. The Ohio Revised Code allows a landlord to evict a tenant on numerous grounds outside of non-payment of rent but depending on the circumstances may have additional notice requirements or additional evidence requirements. We can advise landlords on the best path forward when dealing with a problem tenant based on the circumstances in light of this new affirmative defense available to tenants.
Overall, the impact on the “Pay to Stay” legislation is likely to not affect the vast majority of evictions brought within the City of Cleveland. However, non-payment of rent may no longer be the easiest path forward to evict a problem tenant.
Should you have any questions or would like further clarification on this or other real estate matters, reach out to Mansour Gavin’s Real Estate group.
