DENNIS ET AL., APPELLANTS, v. MORGAN, APPELLEE.
No. 99-1545
SUPREME COURT OF OHIO
August 9, 2000
89 Ohio St.3d 417 | 2000-Ohio-211
Submitted February 23, 2000. CERTIFIED by the Court of Appeals for Fulton County, No. F-98-025.
The issuance of a three-day notice to vacate pursuant to
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{¶ 1} In this case we are asked to settle a conflict between appellate districts as to whether, absent specific provisions in the lease, a landlord‘s election to terminate a lease agreement releases a tenant from liability for rent not yet due at the time of eviction.
{¶ 2} Plaintiffs-appellants Timothy and Suzanne Dennis rented an apartment in Delta to appellee Angela Morgan. The lease, entered into on June 20, 1996, was for a one-year term. The Dennises served Morgan with a notice to vacate premises on November 1, 1996, pursuant to
{¶ 3} On February 4, 1998, appellants filed a complaint against Morgan, seeking damages including rent for the seven months the apartment remained vacant through the lease‘s termination date of June 20, 1997. They also sought damages for repair expenses and cleaning costs. Appellants amended their
{¶ 4} Appellants moved the appellate court to certify a conflict between its holding and that of the Franklin County Court of Appeals in Briggs v. MacSwain (1986), 31 Ohio App.3d 85, 86, 31 OBR 126, 127, 508 N.E.2d 1028, 1029. The Briggs court held that “the issuance of a three-day notice to vacate pursuant to
{¶ 5} The appellate court granted appellants’ motion to certify. This cause is now before the court upon our determination that a conflict exists.
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Barber, Kaper, Stamm & Robinson and L. Scott Helkowski, for appellants.
Meister & Meister and Sheldon C. Meister, for appellee.
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PFEIFER, J.
{¶ 6} We hold that the issuance of a three-day notice to vacate pursuant to
{¶ 7}
{¶ 8} There is no dispute in this case that Morgan violated the terms of the rental agreement, nor is there a dispute that appellants properly served a notice to vacate. The issue is whether the notice to vacate the premises absolved Morgan of her liability for damages based on future rent due under the lease.
{¶ 9} The trial and appellate courts relied on Cubbon v. Locker (1982), 5 Ohio App.3d 200, 5 OBR 462, 450 N.E.2d 697, where the court held that service of the three-day notice to vacate the premises is an election of remedies and operates as notice to the tenant that the tenancy is terminated. The court further reasoned that the termination of the tenancy releases the tenant from rent not yet due.
{¶ 10} To determine whether the use of an action for forcible entry and detainer constitutes an election of remedies, we look to the statutory chapter at issue. We find that Ohio‘s statutory scheme does not force a landlord to choose between eviction and a claim for damages for breach of contract. Rather,
{¶ 11} The allowance of a separate suit indicates the General Assembly‘s realization that post-termination damages, including rents, are unknowable at the time of the institution of eviction proceedings. Damages are not knowable upon termination because termination does not operate as a windfall for the landlord—the remaining rents under the agreement do not come due all at once. As in any other breach-of-contract action, a plaintiff landlord must prove damages.
{¶ 13} Depending on the length of the lease, the final determination of damages for post-termination rent could take time—and the statute recognizes that by not requiring joinder at the time of eviction.
{¶ 14} We thus find that
{¶ 15} Cubbon also conflicts with the public policy reasoning of the court in Briggs v. MacSwain (1986), 31 Ohio App.3d 85, 31 OBR 126, 508 N.E.2d 1028. That court plainly held that a three-day notice to vacate does not terminate the obligations of the tenant to pay rent for the remainder of the term. The Briggs court considered which party should bear the burden caused by a lessee‘s breach of the lease:
“A tenant may not avoid her obligations under the lease agreement for payment of the rent during the term of the lease, or until a new tenant is secured, by failing to pay her rent and then vacating after she receives the required three-
day notice for non-payment of rent.” 31 Ohio App.3d at 86, 31 OBR at 127, 508 N.E.2d at 1029.
{¶ 16} The breach of the lease in Briggs was failure to pay rent, whereas the breach here was for violating the agreement‘s “nondisturbance” clause, but the reasoning is the same. Should a person be able to escape her obligations under a lease by purposefully violating that lease and waiting for the lessor to present her with a three-day notice to vacate? We agree with the Briggs court that the answer to that question is “no.” Otherwise, whenever a lease became unpalatable, a lessee could commit some bad act and thereupon be relieved of the burden of her bargain.
{¶ 17} In the present case, the statutory law and public policy are on the side of the landlords, insofar as the recoverability of some rent after termination is concerned. However, the law may not be with them upon remand if they cannot show that they reasonably attempted to relet the property for seven months. A seven-month vacancy strains the limits of reasonableness.
{¶ 18} Accordingly, we reverse the judgment of the court of appeals and remand the cause to the trial court.
Judgment reversed and cause remanded.
DOUGLAS, LAZARUS, F.E. SWEENEY, COOK and LUNDBERG STRATTON, JJ., concur.
MOYER, C.J., concurs in the syllabus and judgment.
CYNTHIA CECIL LAZARUS, J., of the Tenth Appellate District, sitting for RESNICK, J.
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