477 N.E.2d 1150 | Ohio Ct. App. | 1983
This is an appeal from the Maumee Municipal Court. The facts are basically undisputed and may be summarized as follows. Plaintiff-appellee, Nona Albreqt (hereinafter "appellee"), entered into a written lease with Dr. S.C. Chen, defendant-appellant (hereinafter "appellant"), for certain premises located in Maumee, Ohio. The term of said lease commenced on July 15, 1981. Appellee provided a security deposit to appellant, the *80 landlord, in the amount of $285 when the lease was signed. On October 30, 1981, appellee notified appellant, both orally and in writing, of her intention to vacate said premises on December 1, 1981. On December 1, 1981, appellee vacated said premises and tendered the keys to appellant along with her forwarding address as required by law. Appellant refused to accept either the keys or the forwarding address. Subsequently, appellee mailed the keys and her forwarding address to appellant. While the duration of the original lease was for one year, the trial court found that it had been modified so as to become a month-to-month tenancy. This finding of fact was not disputed by appellant, and thus it is not presently a matter before this court.
The litigation commenced when appellee filed suit against appellant, seeking the return of her security deposit. Appellant counterclaimed, alleging breach of the written lease and demanding certain damages. Following a trial, judgment was granted in favor of appellee in the amount of $670, which represented the full return of the security deposit, additional damages in the same amount, as provided for in R.C.
"1. The trial court erred in penalizing landlord by awarding tenant double damages and attorney fees pursuant to Section
"2. The trial court erred by not giving appellant credit for the stipulated carpet cleaning damages."
This court is satisfied that the rationale of Riding ClubApts. v. Sargent (1981),
"* * * Futhermore, in the event tenant vacates the premises prior to the termination date, a charge of $150 will be deducted from said security deposit as an amount necessary or incidental to prepare said premises and secure a new tenant therefor. * * *"
Such a clause is not unlike paragraph 31 of the lease subjudice, which provides, in pertinent part:
"* * * Tenant assumes and agrees to pay a charge of $60.00 Dollars ($60.00) for the cleaning of the carpeting in said apartment upon the vacation of said premises. * * * `Tenant' agrees that said $60.00 Dollar charge will be deducted from said security deposit over and above any other charges to be deducted from said deposit as herein provided[.] * * *"
In the Riding Club Apartments case, the Court of Appeals for Franklin County held:
"A liquidated damages clause permitting the landlord to retain a security deposit without itemization of actual damages causedby reason of tenant's noncompliance with R.C.
As applied to the facts herein, we adopt and follow the rationale of the opinion of the Tenth District Court of Appeals in Riding Club Apts. v. Sargent, supra. In this case, the trial court affirmatively *81
found that when appellee vacated the apartment, the carpet was just as clean as or cleaner than when appellee initially moved into the apartment. Therefore, under the circumstances, appellee is not responsible for the cost of any carpet cleaning. In the absence of an affirmative showing, by way of itemization (see R.C.
The issues raised by appellant's first assignment of error require a careful analysis of R.C.
R.C.
"(B) Upon termination of the rental agreement any property or money held by the landlord as a security deposit may be applied to the payment of past due rent and to the payment of the amount of damages that the landlord has suffered by reason of the tenant's noncompliance with section
"(C) If the landlord fails to comply with division (B) of this section, the tenant may recover the property and money due him,together with damages in an amount equal to the amount wrongfullywithheld, and reasonable attorneys fees." (Emphasis added.)
Appellant contends that he did provide timely itemization of damages, and thus the penalty provisions of R.C.
In drafting R.C.
"(1) Carpet cleaning (article 31) $30.00 "(2) Bathroom towel rack repair 8.00 "(3) Bathroom wallpaper water damage, wall paper and plaster repair 65.00 "(4) Curtain rods in the living room (article 40) Drapery rods in the bedroom (article 40) 32.00 *82 "(5) Ad in the Blade (article 23) 90.50 TOTAL $225.50 DEPOSIT $285.00 BALANCE $ 59.50
"I am applying the balance toward the rent, and I shall make best effort to rent the premises; but until then, you are still responsible according to the lease."
We have already dealt with item (1) (the carpet cleaning). The trial court found that items (2) and (3), based upon the evidence, were in poor repair when appellee moved in and, therefore, were not her responsibility. More importantly, they are items not found in R.C.
Items (4) and (5) of the notice dealt with damages allegedly caused by appellee's termination of the lease agreement. (The notice itself appears to indicate that the lease has been violated.) Items (4) and (5) will be considered individually. Item (4) alleges that curtain rods in the living room and drapery rods in the bedroom were removed contrary to Article 40 of the lease. The trial court rather summarily stated that appellee had installed her own curtain and drapery rods when she moved in and then took them with her when she moved out, noting that she did fill in the screw holes when she left. The court then concluded that appellee was not responsible for the curtain or drapery rod expenses. Article 40 of the lease agreement states:
"No traverse, curtain rods, drapery rods, towel bars, soap dishes or any other type of fixture will be installed by `Tenant' in said apartment without the written consent of Owner. It is understood and agreed by and between Owner and `Tenant' that even though said permission is given, said fixtures, once installed,become the property of Owner and will not be removed by`Tenant.'" (Emphasis added.)
Based upon the factual findings of the trial court, it would appear that a clear violation of paragraph 40 occurred. Appellant had every right to deduct from the security deposit the cost of installing new curtain and drapery rods.
Item (5) of the notice deals with an alleged violation of paragraph 23 of the lease, which provides:
"In the event that the Owner shall, during the period coveredby this lease, obtain possession of said premises by reentry, summary proceedings, or otherwise, the `Tenant' hereby agrees to pay the Owner the expense incurred in obtaining possession of said premises, and also all expenses and commissions which may be paid in and about the letting of the same, and all other damages." (Emphasis added.)
Based upon the trial court's findings, we conclude that at the time appellant secured possession of said premises, the rental period was over. Thus, paragraph 23 of the lease does not apply, since possession did not occur during the period of the lease. Consequently, the $90.50 was improperly withheld from the security deposit.
The trial court further found that the lease was a valid month-to-month lease, which appellee properly terminated. Therefore, before appellant can recover any of the damages itemized and withheld from the security deposit, he must follow the procedural requirements set forth in R.C.
We hold that appellant's actions were contrary to the requirements of R.C.
We next address appellee's cross-appeal in which she sets forth the following assignment of error:
"An award of one hundred dollars ($100) in attorney fees is insufficient, unreasonable and an abuse of discretion by the trial court."
R.C.
On consideration whereof, the judgment of the Maumee Municipal Court is hereby affirmed, but modified in accordance with this opinion. Pursuant to App. R. 12(B), we award judgment to appellee in the amount of $606, representing twice the amount of the security deposit determined to have been unlawfully withheld ($253), plus $100 for attorney fees. This cause is remanded to said court for assessment of costs.
Judgment affirmed, as modified.
CONNORS, P.J. and DOUGLAS, J., concur.