Over the last few weeks, a flurry of orders and directives has been introduced that impact landlords and tenants. Of particular importance to landlords and tenants are the Governor’s Executive Order 2020-08D, the Supreme Court of Ohio’s Tolling Order of 4/1, and the Franklin County Municipal Court Administrative Order of 3/17.
In summary, all hearing dates for eviction (“forcible entry and detainer”), for nonpayment of rent (caution: not for other causes of action, such as safety violations, destruction, or criminal activity), and for residential and commercial leases in Franklin County are extended 8 weeks. We expect additional orders to follow which will further extend such hearing dates. Outside of Franklin County, we anticipate counties will be setting their own rules for such suspension of remedies as authorized by the Ohio Supreme Court.
It is important to note that the above-mentioned orders have limitations. In the rare situations where repossessions are authorized explicitly in the lease, the orders do not suspend commercial self-help repossessions. Additionally, in a non-payment situation, the current orders do not prevent a landlord from threatening to, or in fact, serving a notice of eviction, or filing suit for collection or eviction as a point of leverage—however, answer periods will be tolled per the Supreme Court’s order and hearing dates extended by Franklin County Municipal Court order.
When landlords are considering their options, it is important to remember that the Governor has urged, but not ordered, landlords to extend deadlines and suspend penalties, but has not otherwise altered rights under leases. Courts will likely look unfavorably on landlords when these matters are eventually heard if they have not exercised some leniency during the stay period. Some flexibility is good business and should be urged to landlords—however, tenants should be advised that they have not currently been granted any additional rights. Tenants remain at the mercy of the written lease and the discretion of the landlord. We have discussed force majeure clauses and other possible defenses to tenant and landlord nonperformance, but on the whole, payment duties continue no matter what else is occurring during the lease term, whether residential or commercial. Read the lease, but in general, this remains a matter of negotiation and accommodation, not the exercise of rights.
If you have any questions about your lease, please contact your attorney at Carlile Patchen & Murphy LLP or any member of the Real Estate Law Group.