440 N.E.2d 1368 | Ohio Ct. App. | 1981
Defendant has appealed the judgment of the trial court that plaintiff can retain his security deposit of $150 under a liquidated damages clause of an apartment lease, asserting that the judgment is contrary to law.
Plaintiff and defendant entered into a one-year lease of an apartment at the monthly rate of $215. A $150 security deposit was made by defendant. Defendant breached the lease contract by vacating the premises before the expiration of the term. Judgment for unpaid rent in the amount of $265.12 was rendered, which included the period of time for which rent was not paid and during which the apartment was vacant prior to its being re-rented by the landlord. There is no question of the validity of that judgment, but defendant asserts that it was contrary to law for the trial court to hold that his $150 security deposit could be retained by the landlord as liquidated damages pursuant to the following clause of the lease agreement:
"* * * Furthermore, 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. * * *"
The issue is whether a liquidated damages clause in an apartment lease, permitting the landlord to retain a security deposit of $150, is inconsistent with the provisions of R.C. Chapter 5321 and thus, unenforceable.
R.C.
"A landlord and a tenant may include in a rental agreement any terms and conditions, including any term relating to rent, the duration of an agreement, and any other provisions governing the rights and obligations of the parties that are not inconsistent with or prohibited by Chapter 5321 of the Revised Code or any other rule of law."
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
A liquidated damages clause permitting the landlord to retain a security deposit without itemization of actual damages caused by reason of the tenant's noncompliance with R.C.
Plaintiff argues that the issue of legality or enforceability of the liquidated damages clause was not properly before the trial court because illegality is an affirmative defense under Civ. R. 8(C), which was not pleaded. The record discloses that the enforceability of the liquidated damages clause was the primary issue upon which the case was litigated and that, by express or implied consent, that issue was tried and decided by the court. See Civ. R. 15(B). It was not necessary for defendant to file a counterclaim for return of the security deposit as R.C.
Defendant's assignment of error is sustained. The judgment of the trial court is reversed. The case is remanded to the trial court with instructions to modify the judgment by deducting $150 from the amount of unpaid rent, thus reducing the judgment to $
Judgment reversed and case remanded.
REILLY and COOK, JJ., concur.
COOK, J., of the Eleventh Appellate District, sitting by designation in the Tenth Appellate District.