An Emergency Ordinance To supplement the Codified Ordinances of Cleveland, Ohio, 1976, by enacting new Chapter 375 relating to landlords and tenants. By: Councilman Jackson     WHEREAS, this ordinance constitutes an emergency measure providing for the usual daily operation of a municipal department; now, therefore,   BE IT ORDAINED BY THE COUNCIL OF THE CITY OF CLEVELAND:   Section 1. That the Codified Ordinances of Cleveland, Ohio, 1976, are hereby supplemented by enacting new Chapter 375, to read as follows:   Chapter 375 LANDLORDS AND TENANTS Section 375.01       Definitions Section 375.02       Terms of Rental Agreements Section 375.03       Terms Barred from Rental Agreements Section 375.04       Rent Receipt Required Section 375.05       Payment of Utilities Section 375.06       Unlawful Entry By Landlord Section 375.07       Landlord Denied Certain Remedies Section 375.08       Retaliation of Landlord Prohibited; Relief Section 375.09       Reasonable Security Against Criminal Activity Section 375.10       Abandonment of Dwelling Unit by Tenant; Landlord Remedies Section 375.11       Severability     Section 375.01 Definitions   (a) "Dwelling unit" means a structure or the part of a structure that is used as a home, residence, or sleeping place by one person who maintains a household or by two or more persons who maintain a common household. (b) "Landlord" means the owner, lessor, or sublessor of residential premises, his agent, or any person authorized by him to manage the premises or to receive rent from a tenant under a rental agreement. (c) "Rental agreement" means any agreement or lease, written or oral, which establishes or modifies the terms, conditions, rules, or any other provisions concerning the use and occupancy of residential premises by one of the parties. (d) "Residential premises" means a dwelling unit for residential use and occupancy and the structure of which it is a part, the facilities and appurtenances in it, and the grounds, areas, and facilities for the use of tenants generally or the use of which is promised the tenant. "Residential premises" do not include any structures excluded from the definition found in Section 5321.01 of the Ohio Revised Code. (e) "Tenant" means a person entitled under a rental agreement to the use and occupancy of residential premises to the exclusion of others.   Section 375.02 Terms of Rental Agreements   (a) A landlord and tenant may include in a rental agreement any terms and conditions, including the term relating to rent, the duration of an agreement, and any other provisions governing the rights and obligations of the parties that are not inconsistent with or prohibited by this Chapter, Chapter 5321 of the Ohio Revised Code, or any other rule of law. (b) In the event that a landlord and tenant have a rental agreement for a duration of six (6) months or more, and the rental agreement includes a provision for automatic renewal, the automatic renewal provision must be set forth in clear, unambiguous language and must be printed on the rental agreement in bold type that is at least twice the size of any other print on the page. (c) If a rental agreement includes a provision that authorizes the landlord to assess the tenant a fee for late payment of the monthly rent, the total amount of that late payment fee for any month may not exceed the larger of:  (i) twenty-five dollars ($25.00); or (ii) five percent (5%) of the monthly contract rent.  In addition, the total amount of that late payment fee for any month may not exceed twenty-five percent (25%) of the portion of the monthly contract rent that the tenant is obligated to pay under the rental agreement.   Section 375.03 Terms Barred from Rental Agreements   (a) No provision of this Chapter or Chapter 5321 of the Ohio Revised Code may be modified or waived by any oral or written agreement except as provided in Division (f) of this Section. (b) No warrant of attorney to confess judgment shall be recognized in any rental agreement or in any other agreement between a landlord and tenant for the recovery of rent or damages to the residential premises. (c) No agreement to pay the landlord's or tenant's attorneys' fees shall be recognized in any rental agreement for residential premises or in any other agreement between the landlord and tenant. (d) No agreement by a tenant to the exculpation or limitation of any liability of the landlord arising under law or to indemnify the landlord for that liability or its related costs shall be recognized in any rental agreement or in any other agreement between a landlord and tenant. (e) A rental agreement, or the assignment, conveyance, trust deed, or security instrument of the landlord's interest in the rental agreement may not permit the receipt of rent free of the obligation to comply with Section 5321.04 of the Ohio Revised Code. (f) The landlord may agree to assume responsibility for fulfilling any duty or obligation imposed on a tenant by Section 5321.05 of the Ohio Revised Code, other than the obligation specified in Division (A)(9) of that Section. (g) A landlord who knowingly includes a provision in a lease that is prohibited by this Section shall be liable for damages in favor of the tenant in an amount of not less than Fifty Dollars ($50.00) and not more than Five Hundred Dollars ($500.00) for each violation, together with reasonable attorneys' fees.   Section 375.04 Rent Receipt Required   Upon a tenant’s written request, the landlord shall provide the tenant with a signed receipt for the security deposit and all rental payments except for payments made by personal check of the tenant, at the time the security deposit or rental payments are made.  The tenant may make this request for a receipt, relative to the security deposit and/or all rental payments, in one written request.  A tenant may bring an action for mandatory or injunctive relief to secure compliance with this Section.   Section 375.05 Payment of Utilities   (a) A landlord who is a party to a rental agreement shall pay for the electric, gas, and water services for the tenant’s dwelling unit unless: (1) The applicable utility service is provided to the tenant’s dwelling unit through an individual meter or submeter that measures usage only in the tenant’s dwelling unit; and (2) The rental agreement provides that, with respect to the applicable utility service, the tenant shall pay only for the cost of the utility service that is provided through the individual meter or submeter during the tenancy; and (3) The rental agreement provides that the tenant shall have reasonable access at all times to the individual meter or submeter, for the purpose of reading the meter or submeter; and the landlord grants the tenant such access to the individual meter or submeter; and (4) The provisions in the rental agreement that implement this Section are stated in clear and unambiguous language.   Section 375.06 Unlawful Entry Prohibited   (a) Except in the case of an emergency or if it is impracticable to do so, a landlord shall give a tenant reasonable notice of his intent to enter the leased premises and enter only at reasonable times.  Twenty-four (24) hours is presumed to be reasonable notice in the absence of evidence to the contrary. (b) If a landlord makes an entry in violation of Section (a) hereof, makes a lawful entry in an unreasonable manner, or makes repeated demands for entry otherwise lawful that have the effect of harassing the tenant, the tenant may: (1) At the tenant's option, either recover actual damages resulting from the entry or demands, or recover damages of an amount not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00); (2) Obtain injunctive relief to prevent the recurrence of the conduct; (3) Obtain a judgment for reasonable attorneys' fees; (4) Terminate the rental agreement.   Section 375.07 Landlord Denied Certain Remedies   (a) No landlord of residential premises shall initiate any act, including the termination of utilities or services, exclusion from the premises, or threat of any unlawful act against a tenant or a tenant whose right to possession has been terminated, for the purpose of recovering possession of residential premises, other than as provided in Chapters 1923, 5303, and 5321 of the Ohio Revised Code. (b) No landlord of residential premises shall seize the furnishings or possessions of a tenant, or of a tenant whose right to possession has terminated, for the purpose of recovering rent payments, other than in accordance with an order by a court of competent jurisdiction. (c) A landlord who violates this Section shall be liable in a civil action for: at the tenant's option, either all damages caused to the tenant or to the tenant whose right to possession has been terminated, or damages of an amount not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00); and the tenant's reasonable attorneys' fees.   Section 375.08 Retaliation of Landlord Prohibited; Relief   (a) Subject to Division (d) of this Section, a landlord may not retaliate against a tenant by increasing the tenant’s rent, decreasing services that are due to the tenant, bringing or threatening to bring an action for possession of the tenant’s premises, terminating or threatening to terminate the tenant’s rental agreement, or refusing to renew the tenant’s rental agreement or to continue the tenant’s tenancy because: (1) The tenant has complained to an appropriate governmental agency of a violation of a building, housing, health, or safety code that is applicable to the premises, and the violation materially affects health and safety; (2) The tenant has complained to the landlord of any violation of Section 5321.04 of the Ohio Revised Code; (3) The tenant has joined with other tenants for the purpose of negotiating or dealing collectively with the landlord on any of the terms and conditions of a rental agreement.       (b) If a landlord acts in violation of Division (a) of this Section, the tenant may:       (1) Use the retaliatory action of the landlord as a defense to an action by the landlord to recover possession of the premises;       (2) Recover possession of the premises; or       (3) Terminate the rental agreement.       In addition, the tenant may recover from the landlord, at the tenant’s option, either any actual damages, together with reasonable attorneys’ fees, or damages of not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00), together with reasonable attorneys’ fees.       (c) Nothing in Division (a) of this Section shall prohibit a landlord from increasing the rent to reflect the cost of improvements installed by the landlord in or about the premises or to reflect an increase in other costs of operation of the premises.       (d) Notwithstanding Divisions (a) and (b) of this Section, a landlord may bring an action under Chapter 1923 of the Ohio Revised Code for possession of the premises if: (1) The tenant is in default in the payment of rent;       (2) The violation of the applicable building, housing, health, or safety code that the tenant complained of was primarily caused by any act or lack of reasonable care by the tenant, or by any other person in the tenant’s household, or by anyone on the premises with the consent of the tenant;       (3) Compliance with the applicable building, housing, health, or safety code would require alteration, remodeling, or demolition of the premises which would effectively deprive the tenant of the use of the dwelling unit.       (e) The maintenance of an action by the landlord under Division (d) of this Section does not prevent the tenant from recovering damages for any violation by the landlord of the rental agreement or of Section 5321.04 of the Ohio Revised Code.         Section 375.09 Reasonable Security Against Criminal Activity         (a) This Section applies only to residential premises that are located in a multifamily structure or a multifamily development.        (b) Definitions.       (1) “Multifamily structure” means a structure that contains thirty or more dwelling units.       (2) “Multifamily development” means a tract of land or contiguous tracts of land on which there are thirty or more dwelling units of the same landlord.       (3) “Multifamily structure or development” means a multifamily structure or a multifamily development.       (4) “Safety Director” means the Safety Director of the City of Cleveland or his/her designee.       (5) “Security audit” means the procedure in which:       (i) The Safety Director shall conduct a full and thorough analysis of the common areas of a multifamily structure or development to determine whether the common areas have reasonable security measures against criminal activity;       (ii) In conducting this analysis, among other things, the Safety Director shall conduct a voluntary survey of the tenants of the multifamily structure or development without recording the names of the tenants;       (iii) In conducting this analysis, the Safety Director shall consider, among other things, the statement of reasons (if any) in the petition that requested the security audit, the responses (if any) to the Safety Director’s survey of the tenants, the number and type of service calls that the City of Cleveland Police Department has received concerning the multifamily structure or development, and the Safety Director’s inspection of the common areas of the multifamily structure or development;       (iv) Based on this analysis, the Safety Director shall determine and specify the additional security measures, if any, that the landlord shall be obligated to implement in the common areas of the multifamily structure or development to provide the common areas with reasonable security measures against criminal activity;       (v) For each of these specified additional security measures, the Safety Director shall determine and specify a reasonable time period within which the landlord shall implement it;       (vi) These specified additional security measures may include, among other things, cameras, lighting, locks for windows or doors, renovation of windows, doors, or entrance areas, crime reporting procedures, and/or onsite security personnel for specified hours; and       (vii) The Safety Director shall prepare a written report that includes all of the Safety Director’s findings, determinations, and specifications in the security audit.       (c) The tenants of a multifamily structure or development may file a petition with the Safety Director that requests a security audit of the multifamily structure or development in which they reside.       (1) The Safety Director shall prepare, and distribute to tenants at no charge, a form that tenants may use, but are not required to use, for the petition.       (2) In the petition, the tenants shall sign their names, state their addresses, and state their request for a security audit of the multifamily structure or development in which they reside.       (3) In the petition, the tenants shall identify the name and address of at least one tenant, and may identify the name and address of up to five tenants, who shall receive service of any documents that, under this Section, the Safety Director is required to serve on the tenants.       (4) In the petition, the tenants may state with specificity, but are not required to state with specificity, their reasons for requesting a security audit.       (5) The petition shall be signed only by tenants of the multifamily structure or development and only by one tenant per dwelling unit of the multifamily structure or development.  The number of such tenants who sign the petition must equal at least ten percent of the total number of dwelling units in the multifamily structure or development.       (6) The tenants shall file the petition with the office of the Safety Director.  At the time of the filing, the office of the Safety Director shall time and date stamp the original petition and the tenant’s copy of the petition.       (7) Within three days after the filing of the petition, the tenants shall serve the landlord of the multifamily structure or development with a copy of the petition by delivering or mailing it to the address of the landlord or to the place where their rent is normally paid.       (d) Within ten days after receiving service of the petition, the landlord shall provide the office of the Safety Director with a written statement of the landlord’s name and address, for the purpose of receiving documents that, under this Section, the Safety Director is required to serve on the landlord.  If the landlord fails to provide the office of the Safety Director with that information in a timely manner, the Safety Director shall make reasonable efforts to identify an appropriate name and address for the landlord and, based on those efforts, shall determine the name and address to be used for such service.       (e) Within ten days after the filing of the petition with the office of the Safety Director, the Safety Director shall make an initial assessment, in writing, as to whether a security audit of the multifamily structure or development is appropriate and shall serve the tenants and the landlord with a copy of the initial assessment.       (1) In the initial assessment, the Safety Director shall find that a security audit of the multifamily structure or development is appropriate if the requirements in this Section are met and one or more of the following criteria are met:  (i) during the thirty day period preceding the filing of the petition, the City of Cleveland Police Department has received fifteen or more service calls concerning the multifamily structure or development; (ii) within ten days after the filing of the petition, the City of Cleveland Councilmember of the ward in which the multifamily structure or development is located advises the Safety Director, in writing, that a security audit of the multifamily structure or development is appropriate; or (iii) there is any other reasonable basis for concluding that, if a security audit is conducted, there is a reasonable possibility that the Safety Director will specify additional security measures that the landlord will be obligated to implement in the common areas of the multifamily structure or development.       (2) In determining whether any such reasonable basis exists, the Safety Director shall consider, among other things, the statement of reasons (if any) in the petition that requested the security audit, the number and type of service calls that the City of Cleveland Police Department has received concerning the multifamily structure or development, and the Safety Director’s preliminary inspection of the common areas of the multifamily structure or development.       (3) The Safety Director shall serve the tenants and the landlord with a copy of the initial assessment by delivering or mailing it to their respective addresses.       (f) If the Safety Director determines in an initial assessment that a security audit of the multifamily structure or development is not appropriate, the Safety Director shall not conduct a security audit of the multifamily structure or development.       (g) If the Safety Director determines in an initial assessment that a security audit of the multifamily structure or development is appropriate, within thirty days after the Safety Director serves the tenants and the landlord with the initial assessment, the Safety Director shall complete the security audit and shall serve the tenants and the landlord with a copy of the written report of the security audit.  The Safety Director shall serve the tenants and the landlord with a copy of the written report of the security audit by delivering or mailing it to their respective addresses.       (h) If the Safety Director determines in a security audit that the landlord is obligated to implement additional security measures in the common areas of the multifamily structure or development, the landlord is obligated to implement those security measures within the reasonable time period(s) specified in the security audit.       (i) The landlord’s obligation under this Section and the security audit to implement the security measures specified in the security audit, within the reasonable time period(s) specified in the security audit, is an implied term of any rental agreement for any dwelling unit in the multifamily structure or development.  If the landlord breaches that implied term of a rental agreement, it constitutes a breach of an obligation imposed upon the landlord by the rental agreement, for the purposes of Section 5321.07(A) of the Ohio Revised Code.       (j) The tenants of a multifamily structure or development may not file a petition pursuant to this Section if, relative to the same multifamily structure or development, a petition has been filed and served properly pursuant to this Section within the preceding 12 months.       (k) If the landlord requests the Safety Director to inspect the multifamily structure or development to determine whether the landlord has implemented the landlord’s obligations under the security audit, within thirty days of the request, the Safety Director shall make that determination, in writing, and shall serve the tenants and the landlord with a copy of that determination.  The Safety Director shall serve the tenants and the landlord with a copy of that determination by delivering or mailing it to their respective addresses.   Section 375.10 Abandonment of Dwelling Unit by Tenant; Landlord Remedies         (a) For the purposes of this Section, "abandonment" means the tenant has vacated the dwelling unit without notice to the landlord and does not intend to return, which intention may be evidenced by the combination of the tenant’s removal of substantially all of the tenant’s possessions and personal effects from the dwelling unit plus one of the following:  (i) nonpayment of rent for at least two months, (ii) termination of the utilities to the dwelling unit at the request of the tenant, or (iii) an express statement by the tenant to the landlord that the tenant does not intend to occupy the dwelling unit after a specified date.       (b) If the tenant abandons the dwelling unit, the landlord may send notice to the tenant at the tenant’s last-known address both by regular mail, postage prepaid, and by certified mail, return receipt requested, stating that (i) the landlord has reason to believe that the tenant has abandoned the dwelling unit, (ii) the landlord intends to reenter and take possession of the dwelling unit unless the tenant contacts the landlord within ten days of receipt of the notice, (iii) if the tenant does not timely contact the landlord, the landlord intends to remove any possessions and personal effects remaining in the dwelling unit and to re-rent the premises, and (iv) if the tenant does not reclaim such possessions and personal effects within thirty days after the notice, the landlord will dispose of them as permitted by this Section.  The notice shall be in clear and simple language and shall include a telephone number and a mailing address at which the landlord can be contacted.  If the notice is returned as undeliverable, or the tenant fails to contact the landlord within ten days of the receipt of the notice, the landlord may reenter and take possession of the dwelling unit, at which time any rental agreement or lease still in effect shall be deemed to be terminated.       (c) The landlord shall not be required to serve a notice to vacate as provided in Section 1923.04 of the Ohio Revised Code or to bring a forcibly entry and detainer action as provided in Chapter 1923 of the Ohio Revised Code to obtain possession or occupancy of a dwelling unit that, according to the provisions of this Section, the tenant has abandoned.  Nothing in this Section shall relieve a landlord from complying with the provisions of Chapters 1923 and 5321 of the Ohio Revised Code, if the landlord knows, or reasonably should know, that the tenant has not abandoned the dwelling unit.       (d) The landlord shall inventory any possessions and personal effects of the tenant that are in the dwelling unit and shall remove and keep them for not less than thirty days.  The tenant may reclaim such possessions and personal effects from the landlord within that thirty-day period.  If the tenant does not reclaim such possessions and personal effects by the end of that thirty-day period, the landlord may dispose of them as the landlord deems appropriate.       (e) No action shall be brought under Section 5321.15 of the Ohio Revised Code  against a landlord who takes action in compliance with the provisions of this Section.         Section 375.11 Severability         If any provision or clause of this Chapter or its application to any person or in any circumstances is held invalid, such invalidity shall not affect other provisions or applications of this Chapter that can be given effect without the invalid provision or application, and to this end the provisions of this Chapter shall be severable.       Section 2.  That this ordinance is hereby declared to be an emergency measure and, provided it receives the affirmative vote of two-thirds of all the members elected to Council, it shall take effect and be in force immediately upon its passage and approval by the Mayor; otherwise it shall take effect and be in force from and after the earliest period allowed by law.       Passes July 18, 2001.       Awaiting the approval or disapproval of the Mayor.