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Thirty-day Notice Requirement Does Not Apply to Landlords Terminating Business Leases

2003-0002 and 2003-0020. Maggiore v. Kovach, 2004-Ohio-722.
Stark App. No. 2002-CA-109, 2002-Ohio-6301. Judgment affirmed.
Moyer, C.J., Resnick, F.E. Sweeney, Pfeifer, Lundberg Stratton, O'Connor and O'Donnell, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/newpdf/0/2004/2004-Ohio-722.pdf Adobe PDF Link opens new window.

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(March 3, 2004) The Supreme Court of Ohio ruled 7-0 today that a commercial landlord terminating the lease of a month-to-month business tenant is not required to give the tenant 30 days' advance notice, and is not required to include the specific words “leave the premises” when giving a commercial tenant a mandatory 3-day notice before filing a court action for eviction.

The case involved Canton landlord Christopher Maggiore, who sought to evict a commercial tenant, Charles Kovach, for failure to pay rent. On Jan. 23, 2002, Maggiore delivered a letter giving Kovach notice that he was terminating the tenancy agreement as of Feb. 28, 2002, and advising Kovach to “make arrangements to move out of the building on or before that date.” When Kovach had not moved out by March 4, Maggiore filed a complaint for eviction in Canton Municipal Court .

Kovach asked the court to deny the requested writ evicting him on the ground that he had not been served with a separate notice specifically telling him “to vacate the premises” at least three days before Kovach filed the eviction action. He also cited a 1993 decision by the 6th District Court of Appeals, Sterling Health Care v. Laughlin , in which that court prescribed a three-step process for the eviction of a month-to-month commercial tenant. That process required a 30-day notice of intent to terminate tenancy, followed by a separate 3-day notice to vacate the premises, and finally the filing of court action seeking a writ of restitution.

The trial court rejected Kovach's arguments and granted the eviction action. On review, the 5th District Court of Appeals upheld the trial court, but noted that its ruling conflicted with the 6th District's decision in Sterling Health Care and certified that conflict to the Supreme Court for resolution.

In today's decision, written by Chief Justice Thomas J. Moyer, the court held unanimously that a section of state law cited by Kovach, R.C. 5321.17(B), which requires a ‘landlord' to give a month-to-month ‘tenant' 30 days' advance notice before terminating a lease, applies only to residential properties, and not to lessors and lessees of commercial property.

The Chief Justice noted that, as the terms are defined for all subsections of Chapter 5321, “‘Tenant' means a person entitled under a rental agreement to the use and occupancy of residential premises … (and) ‘(L)andlord' means the owner, lessor or sublessor of residential premises …” “Given that the terms ‘tenant' and ‘landlord' as used in R.C. 5321.17(B) do not apply to commercial leases, landlords are not required to provide tenants with at least 30 days' notice to terminate a commercial tenancy,” he said.

The decision then turned to the state statute that governs court actions by property owners seeking to evict a tenant and reclaim possession of the property. Quoting the language of the statute, Chief Justice Moyer wrote that it requires a party wishing to commence this type of legal action to “notify the adverse party to leave the premises … three or more days before beginning the action,” by certified mail or other specified means of delivery.

Kovach claimed that Maggiore had not provided the required three-day notice prior to filing eviction action in court because his Jan. 23 letter had not included the specific words “leave the premises,” and because the interval between the Jan. 23 letter and the date by which Kovach was asked to “move out” (Feb. 28) was so long that Kovach could not be expected to recognize it as his final “3-day notice” before eviction proceedings were filed. The court rejected those claims.

Noting that the very next paragraph of the eviction law specifies very precise wording that must be included in notices served by landlords on residential tenants, Chief Justice Moyer said the legislature's failure to require any such specific wording in non-residential eviction notices was significant.

“This distinction indicates that the General Assembly knows how to require landlords to include specific language in such notices but decided not to do so in the context of commercial leases,” he wrote. “We therefore conclude that (the applicable statute) does not require a landlord to include the specific language “leave the premises” in a notice to a commercial tenant to vacate the premises.”

Contacts
John B. Wirtz, 330.454.2444, for Christopher Maggiore.

Duard D. Bradshaw and Tamara O'Brien, 330.434.3000, for Charles Kovach.