INTERLOCUTORY MAGISTRATE'S DECISION WITH NOTICE OF HEARING

These matters came on for trial before Magistrate David S. Jump. Attorney Sam S. Law represented the plaintiff, Shu-Mei Lin. Attorney Eric E. Willison represented the defendants, Zuoming Wang and Li Ying Gong. Both lawyers provided excellent representation to their clients. These cases were consolidated for trial. Based on the evidence and arguments presented during six days of trial, after weighing the credibility of the witnesses, the magistrate issues the following interlocutory decision.

The plaintiff owns residential rental property located at 57 E. Duncan Street in the OSU campus area of Columbus, Franklin County, Ohio. In September 2001, the defendants both signed separate leases with the plaintiff. Plaintiff's Exhibit 27 and Defendant's Exhibit G include the defendant Gong's eleven month lease. Plaintiff's Exhibit 43 and Defendant's Exhibit J include the defendant Wang's twelve month lease. Both defendants agreed to lease separate bedrooms and a shared kitchen and dining room area in the upstairs portion of the property. In addition, the defendants shared other common living space in the downstairs part of the property with the downstairs tenant and they all shared access to the basement which housed the washer and dryer. The plaintiff furnished the property with used furniture.

Pursuant to the terms of their leases, both defendants paid the plaintiff rent in the amount of $290.00 per month. Both defendants paid full rent to the plaintiff every month of their tenancies according to the terms of their respective leases. In addition, at the outset of the tenancies, both defendants paid the plaintiff security deposits of $290.00.

When the defendants moved into the property in early September, 2001, the plaintiff was in the process of remodeling the property. Even the areas of the property that were not being remodeled were still very dirty because of drywall dust and construction debris. Painters were working on the common areas inside the property for approximately the first month of the defendants' tenancies. The defendants could not cook in the kitchen for the first week of their tenancies because of the renovation work.

Further, the defendants' bathroom did not work properly during approximately the first week to ten days of the defendants' tenancies while the plaintiff's workers were remodeling the bathroom. The defendants had to leave their home and go to campus or other locations to use the bathroom. They also had to shower at other locations. The plaintiff offered to let the defendants use a shower in the plaintiffs home. The defendant Wang accepted that offer to use the plaintiff's shower a couple times, but that was not a convenient option on a consistent basis because the plaintiff's home was about five to ten minutes away and on the other side of High Street.

The defendants had other serious problems with the condition of the property throughout the year they lived in the property. During the Winter of 2002, someone broke out a basement window. The defendants notified the plaintiff of the broken window but the plaintiff did not replace the window until July 2002. The defendants had to live through the Winter, Spring and into the Summer with a basement window that was completely broken out. When the defendants notified the plaintiff of the broken window the plaintiff's response was to tell the defendants to call her if someone tried to get into the building through the broken window to use the washer and dryer in the basement.

In addition, the defendants had a water problem in which the hot water ran all the time. Instead of fixing the problem, the plaintiff gave the defendants a written notice that she had turned the water off at the main valve in the basement. She instructed the defendants to turn the water on only when they needed it and then to tum the water back off at the main valve when they were finished. Defendant's Exhibit D is a copy of that notice from the plaintiff to the defendants. Although the defendants only complied with the plaintiffs instructions a few times, they had to endure the water problem for several months before the plaintiff finally fixed it.

In addition, the water pressure in the building was very poor. The defendants could not take a shower while one of the tenants was using the washing machine in the basement. The defendants notified the plaintiff of that problem, but the plaintiff did not attempt to remedy that problem during the defendants' tenancies. Instead, the plaintiff told the defendants they should coordinate their water use between themselves and the other tenant.

In November, 2001, the gas heat in the property stopped working properly. The plaintiff promised to make repairs. However, it took the plaintiff almost two (2) weeks to fix the problem so that the defendants had proper heat in the building.

Also, the basement was very wet. The defendants had the use of the basement for storage and to use the washer and dryer. Each time there was heavy rain, water ran into the basement. Defendant's Exhibits M, N, and 0 are pictures of the water in the basement.

Further, the defendants lived with a malfunctioning toilet throughout their tenancies. The flushing lever on the outside of the toilet did not work. The defendants had to take the lid off the tank and reach into the tank to lift the trap by hand each time they flushed the toilet. The plaintiff did not respond to the defendants' requests to repair that problem.

Throughout the defendants' tenancies, the plaintiff entered the property numerous times without giving the defendants notice of her intent to do so. After the downstairs tenant moved out the plaintiff entered the property, including the defendants' living space, without notice to the defendants, claiming she had the right to do so simply because the downstairs was vacant. The plaintiff repeated this pattern after the defendant Gong moved out and the defendant Wang was still occupying the property. Defendant's Exhibits E and F are written notes from the plaintiff to the defendant Wang stating her belief that she could enter the property at any time without giving notice to the defendant Wang.

Because of the conditions of the property and the plaintiff's failure to make timely repairs, the property did not comport with what was promised in the defendants' leases. The property was not worth the amount of rent the defendants paid pursuant to the terms of their leases. The property was only worth $190.00 per month instead of the $290.00 per month stipulated in the leases.

The defendants gave the plaintiff verbal notice in July 2002 that they would not be renewing their leases. In addition, the plaintiff gave written notice to at least one of the defendants that the plaintiff would not renew the lease (Plaintiff's Exhibit 70).

The defendant Gong moved out of the property on August 10, 2002, at the end of her eleven month tenancy. She returned her key to the plaintiff and provided the plaintiff with her forwarding address (Defendant's Exhibit I). The defendant Wang stopped staying at the property when the defendant Gong moved out because she did not feel safe in the property alone at night, especially because of the plaintiff's insistence that she could enter the property at any time without notice. However, she continued to occupy the property until she completed her move-out on August 29, 2002. She also returned her key to the plaintiff and provided the plaintiff with her forwarding address (Defendant's Exhibit K).

Before the defendants moved out of the property, they cleaned the property thoroughly. They left the property in better condition than it was in when they moved into the property. They caused no damage to the property and only minimal ordinary wear and tear. Defendant's Exhibit C is a video taken August 10, 2002, which shows that the property was very clean and neat inside and outside at the time the defendant Gong moved out of the property. In addition, Defendant's Exhibit A is a videotape taken on August 29, 2002, by Willie Young, the director of the OSU office of Off Campus Student Services. That video shows that the unit was also very clean and neat inside and outside at the time the defendant Wang moved out of the property.

Before moving out of the property, the defendants notified the City of Columbus Code Enforcement Division of the problems with the property. A city inspector visited the property and issued orders to the plaintiff to remedy many code violations. Defendant's Exhibit H is a copy of the notice of code violations. The plaintiff made thousands of dollars in repairs after the defendants moved out of the property in order to comply with the City's orders (Plaintiff s Exhibit 74).

Within thirty days after the defendants moved out of the property, the plaintiff sent to both defendants an itemization of the disposition of their security deposits as required by Ohio law. The plaintiff withheld the entire security deposits paid by both of the defendants. In addition, the plaintiff assessed additional damages against both defendants. Plaintiff s Exhibit 24 includes the plaintiff's disposition of the defendant Gong's security deposit and additional charges. Plaintiff s Exhibit 40 includes the plaintiffs disposition of the defendant Wang's security deposit and additional charges.

The plaintiff has filed these lawsuits against the defendants seeking compensation for the claimed damages in excess ofthe security deposits. The defendants have filed Counterclaims against the plaintiff seeking the return of their security deposits, statutory damages, refund of overpayments in rent due to the poor conditions of the property and attorney fees.

It is a fundamental principle of law that the party alleging facts has the burden of proving those allegations. Ohio Fuel Supply Co. v. Shilling (1920), 101 Ohio St. 106. That proof must be by a preponderance of the evidence. Re Walker's Estate (1954), 161 Ohio St. 564. In a case involving the withholding of a security deposit, it is the landlord's burden to prove that it was justified in withholding the security deposit. Zeallear v. F & W Properties (July 25, 2000), Franklin App. No. 99AP-1215, unreported.

The plaintiff has failed to prove that any of her deductions from the defendants' security deposits were proper. All of the charges for damages were for items that were ordinary wear and tear. In fact, many of the charged items were absolutely trivial in nature. For example, the plaintiff charged the defendants for dust on the blinds (Plaintiff's Exhibit 13) and a dirty trash can. As shown in Plaintiff's Exhibit 5 6, the plaintiff did not allege that the defendants left the trash can full of trash. She charged them for not scrubbing out the trash can after they emptied it. Similarly, the plaintiff assessed charges for what appears to be a tiny scrap of paper left in a dresser drawer (Plaintiff's Exhibit 9, first picture).

In addition, the plaintiff charged the defendants for minor nicks on the furniture (Plaintiff's Exhibits 7, 9, 12, and 38). In support of that claim, the plaintiff presented a list of furniture that is attached to the defendants' move-in checklists (Plaintiff s Exhibits 42 and 61). The plaintiff argues that those lists show that the furniture was without nicks at the time of the defendants' move-in. However, the defendants are credible in their testimony that they did not cause damage to the furniture. The furniture was old and used when the defendants moved into the property. The checklists were simply the defendants' acknowledgment that each of those items of furniture was present in the apartment at the time of move-in. Those lists were not intended to reflect the condition of that used furniture. The plaintiff has not proved that the defendants caused those nicks in the furniture.

The plaintiff also has not proved by the preponderance of the evidence that she was justified in charging the defendants for lawn care and removing weeds from the areas around the building. The plaintiff argues that the defendants were responsible for the yard work and weed removal based on paragraph 19 of the defendants' leases (Plaintiff's Exhibits 27 and 43 and Defendant's Exhibits G and J). That paragraph only places an affirmative duty on the tenants to keep the yard free of filth, debris and refase. It also states that the plaintiff is not responsible for lawn care or snow removal. However, it does not place an affirmative duty on the defendants, as upstairs tenants, or any other specific tenant to perform the yard work.

Further, the last page of Plaintiff's Exhibit 44, a note the plaintiff wrote to the defendants, suggests that the plaintiffhad assumed the responsibility for the lawn care, paragraph 19 of the lease notwithstanding. That note indicates that the plaintiff had cut the lawn before she left Columbus to go to Taiwan and further that the plaintiff had arranged for a neighbor to cut the lawn while the plaintiff was gone. It was only after the neighbor failed to cut the lawn and the City of Columbus issued orders to the plaintiff to cut it (Plaintiff's Exhibit 44, page 3), that the plaintiff sent the note to the defendants asking them to contact a lawn care company to cut it.

The plaintiff is simply not credible in her testimony that the defendants left the property in a condition that was dirty and damaged beyond ordinary wear and tear. The videos (Defendant's Exhibits A and C) show quite the opposite. In addition, the defendant presented the testimony of two witnesses from the OSU office of Off Campus Student Services. The director, Mr. Young, testified credibly that when he saw the property on August 29, 2002, the day the second of the two defendants moved out, he saw one of the cleanest apartments he has ever seen, inside and outside. Another employee of that office, Dilnavaz Cama, testified credibly that she also saw the property on August 29, 2002. She described the property as "immaculate" and "extremely clean." She also testified that it was one of the cleanest apartments she has ever seen.

The plaintiff has also failed to prove by the preponderance of the evidence that she was entitled to charge the defendant Gong additional rent. The plaintiff argued, that the defendant Gong's husband lived in the property for two and one half (2 1/2) months, entitling the plaintiff to charge the defendant Gong additional rent for those months. However, the plaintiff presented no credible evidence to support her suspicions that the defendant Gong's husband was actually living in the property. The overwhelming evidence presented at trial showed that the defendant Gong's husband was in Japan and China during the defendant Gong's entire tenancy. He did not enter the United States until August 16, 2002, approximately one week after the defendant Gong moved out of the property (Defendant's Exhibit B).

The plaintiff testified several times during the trial that the defendants failed to give her written notice of their intent to move out of the property without renewing their leases. However she had actual notice from the defendants' verbal statements in July that the defendants would not renew their leases. Plaintiff's Exhibit 33 is a narrative statement written by the plaintiff and admitted into evidence without objection from the defendants. The first page of that exhibit contains the plaintiff s acknowledgment that she sat with both defendants on July 10, 2002, and discussed the defendants' plans to move out and their requests for the return of their security deposits. That actual notice is sufficient to satisfy the defendants' obligation of notice. McGowan v. DM Group a (1982), 7 Ohio App.3d 349.

Further, the plaintiff can hardly complain that she was surprised by the defendants' moving out because the plaintiff gave notice to at least the defendant Gong that the plaintiff would not renew the defendant Gong's lease (Plaintiff s Exhibit 70). It is unclear why the plaintiff raised this issue at all because the plaintiff has not even claimed that the defendants owe additional rent for failure to give notice of termination.

It appears that the plaintiff s primary motivation in filing these claims against the defendants is anger. Perhaps the most telling testimony came on the third day of trial when the plaintiff was testifying on re-direct, after having just been cross-examined by defense counsel. The plaintiff testified in detail about the many repairs she made to the house after the defendants moved out, including the duct work in the basement. She testified that she was not claiming that the defendants caused the problems with the duct work. However, she was angry at the defendants because they called the city code enforcement about the problems. She was angry that she had to spend more than $14,000.00 in repairs in order to comply with the City's orders.

The plaintiff has failed to prove that she was justified in withholding any of the defendants' security deposits or that the defendants owe any additional money for damages or unpaid rent. As a result, the defendants have proved by the preponderance of the evidence that the plaintiff wrongfully withheld their security deposits in the amount of $290.00 each.

Pursuant to ORC 5321.16(C), the defendants are entitled to recover from the plaintiff twice the amount wrongfully withheld from their security deposits and reasonable attorney fees. The defendants provided the plaintiff with their forwarding addresses as a prerequisite of recovering the double damages. The defendants are each entitled to recover two times their $296.00 security deposits, or $580.00 each. That award of double damages and attorney fees is mandatory. Smith v. Padgett (1987), 32 Ohio St.3d 344, at paragraph 3 of the syllabus.

Further, the defendants testified credibly that the reasonable value of the property to them with all of the problems that existed throughout their tenancies was only $190.00. The defendants were competent to provide such testimony of the value as lessees of real property. M., at paragraph 2 of the syllabus. The plaintiff s attempt to show other property values in the OSU campus area (Plaintiffs Exhibit 73) is not persuasive because the plaintiff has not proved that those other properties are comparable to the property at 57 E. Duncan Street. Accordingly, the defendant Gong is entitled to recover an additional $1,100.00 in rent overpayments. The defendant Wang is entitled to recover an additional $1,200.00 in rent overpayments.

Finally, the defendants have proved by the preponderance of the evidence that the plaintiff has violated her duties as a landlord pursuant to ORC 5321.04. The plaintiff failed, during the defendants' tenancies, to comply with the requirements of all applicable building, housing, health and safety codes that materially affect health and safety. ORC 5321.04(A)(1). She failed throughout the defendants' tenancies to make all repairs reasonably necessary to keep the premises in a fit and habitable condition. ORC 5321.04(A)(2). By not repairing the broken basement window for almost six months, she failed to keep all common areas of the premises in a safe condition. ORC 5321.04(A)(3). She failed to maintain the plumbing in good and safe working order. ORC 5321.04(A)(4). She abused her right of access to the property and failed to give the defendants reasonable notice of her intent to enter the property. ORC 5321.04(A)(7) and (8).

The defendants have proved by the preponderance of the evidence that the plaintiff is liable to the defendant Gong in the amount of $1,680.00 plus costs and reasonable attorney fees. The plaintiff is liable to the defendant Wang in the amount of $1,780.00 plus costs and reasonable attorney fees. Pursuant to Local Court Rule 13, Schedule 9.00, the plaintiff is assessed a total of $450.00 in interpreter fees for three half days.

The parties are hereby put on notice that this is not a final magistrate's decision for purposes of Civil Rule 53(E)(3)(a). This magistrate will issue a final decision subsequent the attorney fee hearing.

NOTICE OF ATTORNEY FEE HEARING

These matters are scheduled for hearing to determine the amount of reasonable attorney fees due to each defendant on Wednesday, October 15, 2003, at 1:00 p.m., in Courtroom 11C. It is so ORDERED.

Magistrate David S. Jump

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