from Law360: Ohio Appeals Court Strikes Judge’s Lead-Free Eviction Rule

By Nate Beck

An Ohio appeals court on Thursday found landlords don't need to show their properties are free of lead before evicting tenants in a decision overturning a rule created by a Cleveland housing court judge.

Under a 2019 city of Cleveland law, landlords must obtain certification showing their properties are free of lead hazards by 2023. Cleveland Housing Court Judge W. Moná Scott in 2021 found property owners must show they are complying with the city law before they can kick out a tenant.

Shaker House LLC, the owner of a 163-unit apartment complex, appealed judge Scott's decision, arguing the city's law can't be applied to evictions. In a unanimous decision, the appeals court agreed, finding the judge's rule improperly adds a new requirement to the eviction process laid out in state law.

Danielle Gadomski Littleton, an attorney at the Legal Aid Society of Cleveland, said the organization was disappointed with the decision, which could lead to fewer landlords complying with the city's lead safety rules. The Legal Aid Society was one of a variety of groups that argued in favor of Judge Scott's decision.

"Our interest was preventing kids from being poisoned," Gadomski Littleton said. "That's what we were trying to do in this case. This decision makes that a little bit harder."

Shaker House initially sought to evict a tenant, showing it had followed the process for doing so under state law. The landlord, however, refused to comply with the rule created by Judge Scott's 2021 decision requiring property owners to produce a certification that their apartments are safe from lead hazards before an eviction can proceed.

Patrick Perotti, an attorney for the landlord, said the apartment owner is, in fact, following the city's lead ordinance, but refused to produce a certification in the eviction in order to test Judge Scott's ruling. Shaker House argued before the appeals court that the ruling was counterproductive in the fight against lead poisoning.

"If the purpose of the anti-lead poisoning laws are to get people away from contaminated structures, and you believe a building was contaminated, then how is keeping the tenant and their kids in the building helping protect them from lead?" Perotti said. "You would want them out of the premises."

The appeals court ruled Judge Scott overstepped her authority by requiring landlords prove their properties are lead-safe before evicting a tenant. Her ruling added an additional element to state housing statutes governing evictions, the court found.

"Courts may not add or delete elements to statutory claims by judicial fiat," the appeals panel wrote in its decision.

The court's Thursday decision may be the final word for the eviction rule, Perotti said. He noted the plaintiff in the initial eviction action did not appear before the appeals court and Ohio's Supreme Court likely wouldn't grant a challenge to the ruling because of a lack of standing.

Gadomski Littleton likewise said the Legal Aid Society's options are limited because it's not a party to the case.

Ralph McGreevy, executive vice president and chief operating officer of the Northern Ohio Apartment Association, said he was "outraged" to learn of Judge Scott's decision last year. But the appeals decision shows the housing court can't make its own rules, he said.

"Her job that she was elected to do did not include running the building department's enforcement division," McGreevy said. "When a judge begins to take on and assume powers that are not granted to her, it needs to be challenged."

Judges Eileen T. Gallagher and Michelle J. Sheehan sat on the panel for the Eighth District Court of Appeals for the state of Ohio.

Shaker House LLC was represented by Perotti and Grant J. Keating of Dworken & Bernstein Co., LPA.

Plaintiff Christopher Daniel did not appear before the appeals court.

The case is Shaker House LLC v. Christopher Daniel, case number 111183, in the 8th District Court of Appeals for the state of Ohio.

Original story can be found at Law360: Ohio Appeals Court Strikes Judge's Lead-Free Eviction Rule