One of the most common landlord-tenant disputes revolves around the landlord’s return of a security deposit. Without getting into the issue as to whether money given by the tenant is considered a “security deposit” in the first instance (every now and again there are disputes), the typical scenario is that the tenant vacates the premises at the end of the lease term (or after an eviction) and the landlord refuses to return the security deposit, usually claiming damage to the premises or back rent.

Absent some term contained in the lease agreement to the contrary, the landlord is allowed by law to apply any security deposit to tenant’s back rent. If the tenant owes the money, the landlord does not have to return the security deposit. One point of clarification is that the right of the landlord to apply the deposit to back rent exists even if the lease contains the common term “that the deposit will not be applied to rent.” Sometimes tenants believe that the landlord is contractually prohibited from keeping the deposit as payment for back rent after reading a such phraseology in their lease. This, however, is not what that particular lease-term means. That term simply means that if the tenant fails to pay the monthly rent at some point during the lease-term that the landlord will not apply the deposit to cover that payment. Rather, the tenant will still owe that month’s rent, notwithstanding the fact that the landlord is in possession of money given by the tenant for that exact amount. Such a term does not mean that the landlord can only use the deposit for damages caused to the premises.

But if the tenant remained current on the rent through the end of the leasehold, and provided the tenant was not responsible for any damages above normal wear and tear, the landlord MUST return the entire security deposit within a specified time. If the landlord fails to return the security deposit, the tenant has a cause of action against the landlord.

Under the Ohio Revised Code, a landlord must return your security deposit, along with an itemized list of any deductions from the deposit, to the former tenant within 30 days of the end of the lease. If the landlord fails to return the security deposit (or fails to provide a detailed itemization of damages) within this time-frame, the tenant is entitled to double the amount of the deposit withheld and may be awarded costs and attorney’s fees as well.

However, it must be pointed out that the tenant also has a duty to provide the landlord with an address to which the landlord is to send the deposit and itemized list of deductions. The 30 day time-frame does not begin to run against the landlord until the tenant has provided the landlord with such an address in writing. So tenants need to be aware of the requirement that the landlord receive this information in writing when they move out.

For a sample demand form for tenants, go here: FREE LEGAL FORMS

I was looking over the Morrison & Nicholson Ohio Law Blog webstats the other day and noticed that quite a few people were looking for information about Ohio’s dissolution of marriage process and whether or not a lawyer is required.  Thus, this blog entry was born: What is a dissolution and do I Need a Lawyer for an Ohio Dissolution of Marriage?

In most states the term dissolution refers to a traditional divorce proceeding. However, in Ohio a dissolution of marriage is a statutory alternative to a divorce proceeding in which husband and wife both agree on parental rights, spousal support, and division of personal property, contained in a document called a separation agreement.  The husband and wife then file the a dissolution petition to the court, attaching the separation agreement and various other forms, asking the court to issue a decree.

Ok, so you have googled “dissolution of marriage in Ohio,” purchased the forms from an online legal form vendor for 300 bucks and now your thinking about all the money your going to save by not having to hire a lawyer.  Can this work?  Yes, it can.  A lawyer is not necessarily required to get a marriage dissolution.  However, before you go that route keep in mind that many of these online forms warehouses give little or no instruction as to filling out the forms and the process of filing.  Furthermore an attorney can help negotiate, advise, and protect your interests.  For those of you willing to bear the storm I hope that this blog entry will at give you a big picture perspective of the process itself.

Before you order anything online you should stop by your local county clerk’s office (normally the Division of Domestic Relations) or the website and take a look at the forms that are required for a dissolution.  Doing so will give you a better idea about whether this is something that you would like to tackle yourself.  Also, the people working in the Clerk’s office are generally not very helpful as they are not allowed by law to give legal advice, don’t say that I didn’t warn you.

After you have have all the required forms properly filled out you then submit them to the court.  A petition hearing date will then be set anywhere from 45-90 days later.  At this hearing a judge will ask you and your spouse a few questions then she will issue the decree of dissolution and voilia, your marriage is dissolved.

So you are sitting around listing your new year resolutions: quit smoking, lose ten pounds, start jogging, and most importantly hire an attorney to draft that will you have been putting off for years. Alright, so no one made it their resolution to have a will drafted, but it still makes for a nice segue into my first blog entry of the year:

What advantages does a living trust offer over a will?

A will is a document that describes the final disposition of all your assets after you die. Upon death your will is submitted to and approved by the probate court. A trust is a document that controls all assets transferred to it. It is helpful to think of a trust document as a large Rubbermaid bin that holds all of your assets and you alone control these assets as the sole trustee. Upon your death a successive trustee named within the trust document then controls those assets.

PROBATE:

Perhaps the most cited advantage of a trust over a will is the avoidance of probate. Under a will the transfer of property is overseen by the probate court which can generate substantial attorney fees. Compare that to trust whereby property is immediately transferred to a trustee upon the death of the testator thereby circumventing the need for probate. Thus, a living will is especially helpful to those who own property in different states as they can avoid numerous probate procedures.

PRIVACY:

Additionally, since a trust does not need to be submitted to the probate court it is not public record and as such cannot be seen by just anyone. A will on the other hand is public record and can be seen by any curious citizen.

DISABILITY:

In the unfortunate event of your disability a living trust is more desirable than a traditional will. If your total assets are held in a trust then a successive trustee will automatically have the power to control and manage your property. However, if you have a simple will then you would also need a durable power of attorney or a court appointed conservator to have the same effect.

CONCLUSION:

Whether or not a trust or a living will is best for you must be determined on a case-by-case basis and there are many advantages and disadvantages not mentioned in this brief posting. This summary is meant to serve as a primer and should not take the place of consulting an attorney. Be sure to check back soon for my next post where I will address some situations in which a will may be a more appropriate final disposition vehicle than a living trust.

Until then you might want to check out the following relevant blogs: Suze Orman says get a living revocable trust, Living Trust as Guardianship Substitute, Living Trust are Revocable and NOT an Asset Protection Tool.