[This opinion has been published in Ohio Official Reports at
89 Ohio St.3d 417.]
DENNIS ET AL., APPELLANTS, v. MORGAN, APPELLEE.
[Cite as Dennis v. Morgan, 2000-Ohio-211.]
Landlord and tenant—Three-day notice to vacate pursuant to R.C. 1923.04 does
not terminate tenant’s obligations to pay rent for remainder of term or
until a new tenant is secured.
The issuance of a three-day notice to vacate pursuant to R.C. 1923.04 does not
terminate the obligations of the tenant to the landlord to pay rent for the
remainder of the term or until a new tenant is secured in the exercise of
reasonable diligence.
(No. 99-1545—Submitted February 23, 2000—Decided August 9, 2000.)
CERTIFIED by the Court of Appeals for Fulton County, No. F-98-025.
__________________
{¶ 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 R.C. 1923.04, based on allegations of
excessive noise and other disturbances. Morgan thereafter vacated the premises
pursuant to a court order.
{¶ 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
SUPREME COURT OF OHIO
complaint on July 16, 1998, seeking damages in lieu of rent, but still measuring the
damages by the amount of rent. Morgan filed a motion for summary judgment,
which the trial court granted, relying on Cubbon v. Locker (1982), 5 Ohio App.3d
200, 202, 5 OBR 462, 464,
450 N.E.2d 697, 700. The Cubbon court held that a
lessor’s service of a notice to vacate terminates a tenant’s obligations to pay rent
not yet due under the lease agreement. The court of appeals affirmed the trial
court’s decision as to Morgan’s liability for posteviction rent, citing Cubbon.
{¶ 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 R.C.
1923.04 does not terminate the obligations of the tenant to the landlord to pay rent
for the remainder of the term or until a new tenant is secured in the exercise of
reasonable diligence, whichever is earlier.”
{¶ 5} The appellate court granted appellants’ motion to certify. This cause
is now before the court upon our determination that a conflict exists.
__________________
Barber, Kaper, Stamm & Robinson and L. Scott Helkowski, for appellants.
Meister & Meister and Sheldon C. Meister, for appellee.
__________________
PFEIFER, J.
{¶ 6} We hold that the issuance of a three-day notice to vacate pursuant to
R.C. 1923.04 does not terminate the obligations of the tenant to the landlord to pay
rent for the remainder of the term or until a new tenant is secured in the exercise of
reasonable diligence.
{¶ 7} R.C. Chapter 1923 deals with forcible entry and detainer. Pursuant to
R.C. 1923.02(A)(9), a forcible entry and detainer proceeding can be had against
“tenants who have breached an obligation imposed upon them by a written rental
2
January Term, 2000
agreement.” The statute empowers landlords to regain possession of their property
upon a tenant’s breach of the rental agreement. R.C. 1923.04 requires notice to the
tenant—the landlord must notify the adverse party to leave the premises at least
three days before bringing the action.
{¶ 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, R.C.
1923.03 states, “Judgments under this chapter [regarding forcible entry and detainer
actions] are not a bar to a later action brought by either party.” Thus, R.C. Chapter
1923, by its own terms, does not limit landlords’ remedies upon a breach merely to
securing their property through eviction. Lessors may also bring a separate suit for
damages brought about by the lessee’s breach.
{¶ 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.
3
SUPREME COURT OF OHIO
{¶ 12} The statutory language is consistent with the idea that despite the
termination of the lease the extent of the lessee’s liability remains in doubt. Lessees
are potentially liable for rents coming due under the agreement as long as the
property remains unrented. The important corollary to that is that landlords have a
duty, as all parties to contracts do, to mitigate their damages caused by a breach.
Landlords mitigate by attempting to rerent the property. Their efforts to do so must
be reasonable, and the reasonableness should be determined at the trial level. If the
lessor has acted reasonably in attempting to secure a new tenant, the lessee is liable
for the rent up to the point of the lessor’s finding a new tenant, or the expiration of
the lease, whichever is earlier.
{¶ 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. R.C. 1923.081 does note that those
claims that are definite at the time of eviction, past due rent and other damages,
may be joined with a forcible entry and detainer action.
{¶ 14} We thus find that R.C. Chapter 1923, in its allowance of separate
actions under the lease by both parties does contemplate that lessees are liable to
lessors for post-termination rent. We find that Cubbon is therefore flawed.
{¶ 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-
4
January Term, 2000
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.
__________________
5
