Urban Partnership Bank v. Mosezit Academy, Inc.
2014 Ohio 3721
Ohio Ct. App.2014Background
- UPB owns commercial property in Cleveland Heights; Mosezit operates a child care center on the premises.
- A month-to-month commercial lease required $4,000 monthly rent and allowed termination by either party on 10 days’ written notice.
- On April 25, 2012, UPB and Mosezit executed a land installment contract for $350,000 with quarterly payments of $40,000 from 4/1/2012 to 4/1/2014; rent obligations were separate from the contract payments.
- Mosezit defaulted on the land installment contract; UPB served a notice of forfeiture and a notice to vacate in November 2012.
- In 2013, after a municipal-court agreement on rent through January 2013, UPB terminated the lease effective March 31, 2013, and served a further three-day notice to vacate on April 11, 2013.
- Mosezit refused to vacate; the case was transferred to the Cuyahoga County Common Pleas Court, where UPB asserted forcible entry and detainer, tenancy termination, and related damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether UPB waived the notice to vacate by accepting rent after notice | UPB did not waive because payments were past due and acceptance did not cover future occupancy post-acceptance. | UPB waived by accepting post-notice rent, terminating the eviction rights. | No waiver; eviction action upheld. |
| Properly commence forcible entry and detainer after notice to vacate | Notice to vacate was valid and timely; rent collection did not negate eviction rights. | Acceptance of post-notice rent defeats the notice and precludes eviction. | Trial court correctly treated notice as not waived; action proceeds. |
| Scope of rent collection during eviction pendency | Landlord may collect due rent after default without waiving eviction. | Rent collection post-notice undermines eviction and constitutes waiver. | Rent received after notice was not treated as future occupancy; no waiver found. |
Key Cases Cited
- Graham v. Pavarini, 9 Ohio App.3d 89 (8th Dist. 1983) (waiver rules for post-notice rent in eviction contexts)
- Associated Estates Corp. v. Bartell, 24 Ohio App.3d 6 (8th Dist. 1985) (waiver of notice where landlord accepts rent after service of notice)
- Colbert v. McLemore, 2003-Ohio-3255 (8th Dist. Cuyahoga) (trial court error where eviction writ issued after waiver-like facts)
- N. Face Properties, Inc. v. Lin, 2013-Ohio-2281 (12th Dist. Warren) (interpretation of future rent after notice to vacate; waiver considerations)
- IDC Brunswick Crossroads, LLC v. Gack, Inc., 2012-Ohio-217 (9th Dist. Medina) (distinguishes future vs. past-due rent post-notice in waiver analysis)