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When Retaliatory Eviction Can and Cannot Be a Defense in Ohio

Under the Ohio Landlord-Tenant Act, R.C. Chapter 5321, a tenant may raise the issue of retaliation as a defense if the Landlord brings or threatens to bring an action against the tenant for possession in retaliation against the tenant’s forming a union, complaining to a governmental agency about a violation of a building, housing, health, or safety code, or complaining to the landlord about a breach of the landlord’s statutory obligations.  R.C. 5321.02(A).   Yet, under R.C. 5321.03(A)(4) nothwithstanding R.C. 5321.02, a landlord may initiate a forcible entry and detainer under R.C. 1923.02 against a tenant for holding over, and that tenant may not use a retaliatory action as a defense.

However, Ohio’s Fair Housing Act (FHA) prohibits unlawful discrimination under R.C. 4112.02(H)(1) and (12).  R.C. 4112(H)(1) states that it is an unlawful discriminatory practice to refuse to rent, lease, or otherwise deny or make unavailable housing accommodations because of “race, color, religion, sex, military status, familial status, ancestry, disability, or national origin.”  R.C. 4112.02(H)(12) states it is unlawful to “coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of that person’s having exercised or enjoyed or having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by division (H) of this section.”

The FHA makes it illegal to discriminate because of a tenant’s disability.  42.U.S.C. 3604(f)(1).  Under R.C. 5321.03(A)(4), a tenant can assert a counterclaim in a forcible entry and detainer proceeding that he or she is being evicted for discriminatory reasons.

The Eighth District Court of Appeals in Ohio reversed the summary judgment in K&D Management, L.L.C. vs. Masten, and its decision is only intended to prevent a trial court, in a forcible entry and detainer action, from relying on the R.C. 5321.03(A)(4) exclusion when a tenant raises a claim of retaliatory or discriminatory eviction under the FHA or Ohio Fair Housing Act.  The decision is not intended to make a trial court “a prisoner to tenants’ assertions of discriminatory practices.”  A trial court may summarily dispose of such assertions based on the parties’ pleadings and filings.

To read the entire Decision in K&D Management v. Masten, click here:  2013-Ohio-2905

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