I have a (rather long) question concerning tenants' rights.  I rent an
apartment in Ohio, and along with it rent a garage for storage.  The
same company administers both properties.  In early July, due to a
clerical error, the company believed that the garage was unoccupied
and began removing my personal belongings from it.  By chance I
happened by as this removal was occurring, and was able to get the
company to stop throwing out my things.  The property manager realized
that it was the company's fault, though not until she had first blamed
me for supposedly not paying for my garage (I did pay - again, this
was all the result of a clerical error).

The manager claims that nothing other than boxes were removed from the
garage.  I am not sure about this, though it does appear that nothing
of large value was removed.  However, I do think that certain things
of intrinsic personal value were taken.  I asked for some sort of
compensation for this incident, and the property manager refused.  She
claimed that she had
"served notice" by putting a sign on the garage indicating that
it was empty.  I never saw such a sign, though this does not mean that
one did not exist, as I do not check on the garage that frequently. 
In any case, I do not believe that putting up such a sign constitutes
"serving notice."  I also talked with the customer care representative
for the property concerning the situation, and have just received a
letter from her saying that she, too, believes I am not due any
compensation, though she did offer replacement boxes.

I am, I believe understandably, livid at this situation, and think
that I am due something other than boxes, whether it is a few months'
rent free on the garage or the ability to get out of my lease early
and move elsewhere.  I really don't want to go to court if it can be
avoided, though.  Other than continuing to write to the superiors of
the customer care representative and threatening legal action, is
there anything I can do?

Thank you in advance.

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Clarification of Question by portobello-ga on 26 Aug 2003 12:59 PDT

Missy - It would be great if you could answer this, as it seems that
you're right on track.  I'm confused, though; what happened to the
other answer that was posted yesterday by Tutuzdad?  Was it withdrawn?
 Thanks, Portobello

---

Request for Question Clarification by missy-ga on 26 Aug 2003 13:01 PDT

Hi Portobello,

In which Ohio county do you reside?  Are the garages actual garages
(primarily holding cars), or are they storage units (no cars)?  Do I
understand correctly that the storage unit is not located on the same
property as the apartment community, and is rented under separate
contract?  Do you carry renter's insurance?

Any additional information you can provide will help greatly.

--Missy

---

Request for Question Clarification by missy-ga on 26 Aug 2003 13:03 PDT

Hello again!

Heavens, we posted at about the same time!  Yes, the previous answer
was removed by the Editors.

I should have a full answer prepared for you this evening.

--M

---

Clarification of Question by portobello-ga on 26 Aug 2003 15:05 PDT

Hi Missy, 

I live in Union county, outside of Columbus.  The garages are actual
garages, but I have (with full  knowledge of the rental company)
chosen to use the garage for  storage space.  The garage is
technically on the same property as my apartment, but it is not
attached and not right next to my apartment.  Therefore, they are on
the same contract/lease  (sorry for the confusion on that part - I
realize that my question reads as though they were completely
separate).  As for the renter's insurance, I am pretty sure that I
have it through the same company that I use for auto insurance, though
I am embarrassed to say that I cannot remember the exact details of
this.  However, if you are able I would appreciate your telling me
what the different consequences might be be for someone who does/does
not have rental insurance in this kind of situation.

Thanks again for your help - I look forward to receiving your answer.

Best, 

Portobello

---

Request for Question Clarification by missy-ga on 26 Aug 2003 16:06 PDT

Hi again!

The fact that the unit is actually a garage and on the premises throws
a bit of a twist into the situation.  The storage facility statutes
specifically exclude units used primarily for the storage of motor
vehicles - whether that means yours is excluded because it's purpose
is to store your car (even though you don't store a car there) or
included because even though it's meant for a car, you use it only for
storage - is unclear.  I'm looking into that now (waiting for my
attorney brother in-law to get back from dinner and clarify that bit).

Eviction statutes still don't apply (as you were not evicted from your
apartment), but there is now a question of which portion of the
storage facility statutes do.

Do you pay a separate fee for the garage? (In other words, if you
decided you didn't want the garage any more, could you cancel it?  Or
are you bound to that for the duration of your apartment lease?)

I asked about renter's insurance because you might possibly be able to
file a claim on that if:

1) it covers property in storage
2) you can provide an itemized list of what's missing

Without a full accounting of what, if anything, is actually missing,
I'm afraid you may be on some pretty shaky ground.  Insurance
companies and small claims court will want a full accounting of the
missing property.  A civil mediator usually asks for such as well, but
may be able to help you work out a satisfactory resolution with the
property manager (perhaps a month's free storage?) if for no other
reason than to alleviate the tension and prevent the situation from
escalating.

I'm sure we can work together to get this untangled for you.  It's
quite clear that they are in the wrong, but what remedies you might be
able to pursue are still a bit murky.

--M

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Clarification of Question by portobello-ga on 26 Aug 2003 17:40 PDT

Hi Missy, 

I can cancel the lease on the garage whenever I want, as long as I
move my things out.  So it's not tied to my apartment in that sense,
i.e. the apartment has a year lease, the garage does not.  The garage
also has a separate fee not connected to that of the apartment.

When you talk about getting a month or two free rent for the garage,
that's actually all I was originally asking for from the rental
company.  Their representatives, however, refused, and have insisted
that although this whole mess was caused by a clerical error on their
part, all I am due are some boxes (and they have made clear that don't
really think I am due these either - they say they are willing to
provide them "out of the goodness of their hearts", as it were,
ha-ha).   Now I am so irate that I am thinking I should ask for more. 
But perhaps it's not legally feasible.  I am looking forward to
finding out - thanks again.

Best, 

Portobello

Hi Portobello,

I've spent some quality phone time with my brother in-law, Toledo
attorney James Brazeau, who has been practicing law in Ohio for 22
years:

RC&O Professionals
http://www.rcolaw.com/images/html/rco_team.html

...to try to get things straightened out for you.  I'm afraid the
outlook for you recovering damages doesn't look promising.

James cautions that while he can help determine which laws apply, this
area of the law is not his specialty, and both James and the Google
Answers Terms of Service caution that this is not to be considered
more than general information.  It is offered to help you make a
decision about how to pursue this matter, and should not substitute
for the services of a legal professional.

With that in mind...

Under any rental agreement, certain procedures must be followed before
the property owner may enter the unit or remove property contained
therein.

Upon determining that the contents of the garage are "abandoned", the
property owner is obligated to notify the the lessee *by certified
mail*, sent to the address on the rental contract, that the
possessions are considered abandoned and subject to removal, as well
as *why* they have been designated as abandoned.  The letter is to
include a reasonable time frame for the lessee to respond and recover
his/her property. (Usually ten days, similar to the procedure noted in
O.R.C. § 5322.03 )  The property owner, since you are renting a
residence from the same company, cannot claim that s/he didn't know
where to send notice.

Since the property owner did not provide sufficient or proper notice,
and entered your storage unit with neither your knowledge nor
permission and proceeded to throw out your belongings, what you have
is technically a matter of trespass and unlawful destruction of
property.

Your situation is called a "common law cause of action", and would
fall under civil torts. (See O.R.C  § 2305.10 Bodily injury or injury
to personal property).

Torts, James tells me, can get messy, because it's no longer a matter
of finding one or two specific statutes that apply.

Though some articles suggest that an attorney might be able to
convincingly argue (since the garage is located on the same property
as your residence) that you could legally terminate your lease early,
without penalty (See O.R.C  § 5321.04(B).), James thinks this
unlikely. Since the unit is not your residence, residential property
laws and eviction statutes are not applicable.

In any case, he says the property owner *was* negligent in not
providing notice, and by destroying your personal property.  It
doesn't matter that it was precipitated by "clerical error" - the
error would have been discovered had the property manager sent proper
notification.

(He also says he's baffled by the property owner's recalcitrance - he
is surprised that you weren't offered a free month's rental on the
storage unit as a gesture of apology and good will.)

Here's where it gets sticky:

Ordinarily, you would be entitled to certain damages - namely, actual
costs associated with replacing the property which had been destroyed
(fair market value of the items).

The problem here is that you can't identify exactly what, if anything,
is missing.  In order to recover damages in a tort case, you need to
be able to prove both "foul" (unlawful act) and "harm" (damages
suffered from the commission of the unlawful act).

You have the "foul" free and clear - the property administrator
unlawfully entered the storage unit you were renting and disposed of
your property.  What you *don't* have is the "harm" - you say you
don't know what was taken.  In other words, without a full and
specific accounting of what was taken, you have no legal basis for
recovering damages.

Some Municipal courts offer "Landlord/Tenant Mediation", through which
you MIGHT be able to have your situation resolved - James doesn't
think this likely, since the property in question is not your
residence and you don't have a full inventory of what was destroyed,
but advises that you contact your local courts to check.

In Union County, the courts are:
 
Marysville Municipal Court
125 E Sixth
P O Box 322
Marysville, OH 43040
Clerk's #: 937-644-9102

Union County Common Pleas Court
215  West Fifth Street
Marysville, Ohio  43040
Phone - 937-645-3015
Fax - 937-645-3149

Be warned, there are usually fees associated with such mediation
(where available).

If you are able to come up with a complete inventory of what is
missing, you may be able to recover some of your losses by either
filing a claim on your renter's insurance (but only if the policy
includes a clause covering items in storage - consult your agent for
the specifics of your policy) or by filing a complaint in Small Claims
Court.  If your Small Claims complaint is successful, you can also
recover filing and court costs.

Colleague and friend expertlaw-ga provides some additional input:

"Some helpful Ohio law: "The acceptance of advance rent payments is
inconsistent with the notice to vacate. See Graham v. Pavarini (1983),
9 Ohio App. 3d 89, 92, 458 N.E.2d 421. Because of this, a landlord who
has issued its three-day notice may not accept and retain advance rent
payments without waiving its notice to vacate, as a matter of law. See
id." (From Four Star Service, Inc., v Akron, 1999 Ohio App. LEXIS 5004
(1999) - available through LexisOne.com). In this case, although the
landlord is pretending that the premises were abandoned pursuant to a
notice it tacked to the door, it accepted rent for the period at
issue. Although the notice is to some extent different from a notice
to vacate (a notice terminating a tenant), the circumstance is very
similar."

This *might* help you negotiate a resolution with the property owner,
but again, the fact that you cannot account for what is missing makes
this unlikely.

I'm sorry I couldn't provide more positive news for you - I would have
liked nothing better than to be able to tell you "Yep, you can sue
their butts off for being so inept!".  Unfortunately, Ohio law does
not provide for this unless you can prove actual damages.

I certainly sympathize with you - I've had my fair share of nasty and
inconsiderate landlords and property managers, and completely
understand how angry and upset you must be.  (Mad enough to chew
rocks?)

Though it won't get your possessions back or get a month's free
storage for you, perhaps this will at least make you feel a little
better (and get a little even for the company's terrible rudeness):

Instant VooDoo  
http://www.instantvoodoo.com/

I wish you the best of luck.  If I can be of further assistance to
you, please just ask.  I'll be glad to help.

--Missy

Source:  Ohio attorney noted above.

Thanks so much for your thorough answer!  While I wish that I could
recover something from these nasty people, I agree that it seems
unlikely, so maybe I will try the voodoo after all.  :-)

Hello portobello,

I'm a lifelong Ohio resident, and a renter myself.  The portion of
Ohio law that applies to your situation is § 5322 of the Ohio Revised
Code (Storage facilities), specifically § 5322.03 Procedure for
enforcement of owner's lien; rights of good faith purchasers.

There are certain procedures that must be followed in the state of
Ohio before a non-residential property owner can remove a renter's
property.  It doesn't sound as if any of these procedures were
followed.  A notice on the door of the stroage unit is insufficient. 
You should have been notified by certified mail that your belongings
were considered abandoned.

I have a few errands to run today, but I will be happy to look into
this further for you later this evening - or you can look up the
statute here:

Anderson's OnLine Documents - Ohio Revised Code
http://onlinedocs.andersonpublishing.com/oh/lpExt.dll?f=templates&fn=main-h.htm&cp=PORC

There may also be clauses in your rental contract which apply, as well
as special remedies which may vary by county.  You may be able to get
the situation resolved via a county mediator (we have one here in
Toledo, at any rate), or other remedies may be available to you.


-- Missy

P.S.  I did decide to file a complaint with the Better Business
Bureau, so that this company will hopefully at least have a black mark
on its records.  :-)