Sitemap > Students > ARM May, 2002
Lecture Topics REOMA October, 2002 meeting
- Overview of Eviction Process
- Self Help Evictions - ILLEGAL - PENALTIES
- Actual damages
- Three times one month's rent
- Attorney fees
- Notices
- Opportunity to Cure
- Non-payment of rent - Three Day Notice
- Other Breach - 14/30 Day
Note some judges prefer a second notice on the 15th day be issued. Notice of Termination, Failure to Cure
- Straight (no right to cure)
- 30 Day notice (prior to the 1st of the month) applies to MONTH to MONTH tenancies only.
- 14 Day notice after notice of breach (14/30 day) within last six months
- Holdover
- If tenant remains in possession of premises without permission
- Watch waiver of notice
- Eviction Process
- File Petition
- Personal and residential service (if money judgment is important)
- Mail and Posting Service (if money judgment is not important)
- Obtain Service (sheriff or constable)
- If no service, must reschedule trial
- Obtain service by Substitute Service
- Trial (10 to 14 days)
- Writ of Restitution (lock out)
- Sheriff and Constable prefer moveouts on Mondays
- Sheriff and Constable to not remain on premises during lock change
- Tenant's personal property remaining in premises must be treated according to Disposition of Personal Property Landlord and Tenant Act
- Trial on Rent and Damages Issues (depending on service)
- Landlord Tenant Law Updates
- Tighe v. Cedar Lawn, Inc., 11 Neb. App. 250; "a lessor is bound to exercise reasonable care in
keeping premises used in connection with but not demised to the lessee reasonably safe for those having lawful
occasion to use them for the purpose for which they were intended." "In the absence of an express
agreement to the contrary, a lessor does not warrant the fitness or safety of the premises and the lessee takes
them as he or she finds them"
- Blankenau v. Landess, 261 Neb. 906; "A cause of action to recover possession of real property
from a tenant who remains in possession without the landlord's consent after a lease has expired or been terminated
under Neb. Rev. Stat. § 76-1437 (Reissue 1996) is an action for the possession of real property, and is therefore
subject to the 10-year statute of limitations as provided in Neb. Rev. Stat. § 25-202 (Reissue 1995). "
"Generally, the owner of leased property may sell the property, and such grant conveys the landlord's interest
in the lease"
- McCombs Realty v. Western Auto Supply Co., 10 Neb. App. 962; The defense in forcible entry and detainer
actions may be equitable as well as legal, and the tenant will be relieved from the technical forfeiture when
absolute good faith is shown and the circumstances call for the exercise of equitable principles in his or her behalf
to prevent gross injustice.
- URLTA changes:
Update to URLTA to make reference to Uniform Residential Landlord Tenant Act instead of the code sections.
- Charging for "Usual Wear and Tear" - When is a clean carpet not a clean carpet?
- Ohio cases:
Seccurity Deposit Refunds and Damages:
- Nolan v. Sutton (1994), 97 Ohio App.3d 616: "We hold that the itemization in this case, $40-cleaning, is
insufficient as a matter of law to meet the landlord's burden under R.C. 5321.16(B) and (C), and that, thus, the
trial court properly granted summary judgment to Nolan, the tenant. We believe that under the statutory scheme
established under the landlord/tenant law, the sufficiency of the itemization must be determined at the time it is
sent to the tenant, not at the time it may later be clarified through discovery in a lawsuit."
- Albreqt v. Chen, 17 Ohio App.3d 79: "A liquidated damages clause permitting the landlord to retain a
security deposit without itemization of actual damages caused by reason of tenant's noncompliance . . . is
inconsistent with [Landlord Tenant Act], may not be included in a rental agreement and is not enforceable"
- Chaney v. Breton Builder Co., Ltd. (1998), 130 Ohio App.3d 602: The statute does not, however,
specifically require tenants to clean carpets that are made dirty by normal and ordinary use.
- Standard Practice among Landlords
- What is Wear and Tear?
- How can we Improve our chances?
- Making repairs and tenant remedies.
- What repairs have to be made
- What repairs can "wait"
- What a tenant can and can't do
- Serious and Clear Danger or Incurrable Breach Evictions
- Without Lease Provision or Addendum
- General breach peace and quiet of neighbors or of lease or rule and regulation.
- 14/30 Day notice
- Note this is curable, ie. if no further breaches occur, default is cured, and tenant may remain in the premises.
- Some attorneys suggest that a second breach within the 14 days is a separate breach within six months and thus a 14 day notice with no right to cure may be issued following the issuance of the 14/30 day
- Lease may attempt to make a default "incurable" but not tested in Lancaster Co. Courts.
- Eviction
- With Lease Provision or Addendum
- Breach of provision results in "voiding" of lease
- Three day notice to Quit
- Eviction (similar process but different statute)
- LB116 Serious and Clear Danger introduced by Senator Quandahl 1/4/2001
- Tenant who creates a serious and clear danger, breaches the rental agreement
- Written notice to vacate within 3 days
- No right to cure
- If holds over landlord must file eviction
- Tenant may contest the termination at trial (ie. is it a serious and clear danger)
- Serious and Clear Danger Defined
- Physical assualt or threat
- Illegal use of firearm or other weapon or threat
- Presence of controlled substance by tenant or one with permission on the premises
- Compare to Public Housing Authroities provision
- Three Day notice, no hearing
- Grounds include:
- Engaging in any drug related or violent criminal activity
- Activity which threatens the health, safety or peaceful enjoyment of other residents or agency employees
- Physical assault or threat
- Illegal use of firearm or other weapon or threat
- Possession of a controlled substance
- Tenant may be evicted if any of these persons committs grounds
- Resident or any member of resident's household
- Any guest or other person under resident's control
- Any person on premises with resident's consent
- Eviction after holdover
Please contact me (beran@aol.com) for more information.
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