[Cite as Premiere Mgt., L.L.C. v. Nutt, 2010-Ohio-1255.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HARDIN COUNTY




PREMIERE MANAGEMENT, LLC.,
SCIOTO VILLAGE,

        PLAINTIFF-APPELLANT,                                   CASE NO. 6-09-15

        v.

REBECCA NUTT,                                                  OPINION

        DEFENDANT-APPELLEE.




                     Appeal from Hardin County Municipal Court
                              Trial Court CVG 0900377

                       Judgment Reversed and Cause Remanded

                            Date of Decision:         March 29, 2010




APPEARANCES:

        Amy L. Lambdin for Appellant

        Rebecca Nutt, Appellee
Case No. 6-09-15



ROGERS, J.

       {¶1} Plaintiff-Appellant, Premiere Management, LLC (“Premiere”),

appeals the judgment of the Hardin County Municipal Court dismissing its

complaint for forcible entry and detainer and damages against Defendant-

Appellee, Rebecca Nutt. On appeal, Premiere argues that the trial court erred by

finding that its continued acceptance of government housing assistance payments

subsequent to serving on Nutt a notice to leave the premises waived her breach of

the lease and prevented it from proceeding with its action.        Based upon the

following, we reverse the judgment of the trial court.

       {¶2} In May 2008, Premiere and Nutt entered into an agreement whereby

Premiere agreed to lease Nutt an apartment at the Scioto Village Apartment

Complex located in Hardin County, Ohio. The lease provided that it was subject

to Rural Development Regulations and that rent would be no less than $315 nor

more than $397 per month. Additionally, pursuant to a “Rent Notification” letter

issued to Nutt in March 2009 by the Allen Metropolitan Housing Authority

(hereinafter “Housing Authority”), the Housing Authority agreed to pay a “HAP

[Housing Assistance Payment] Amount” of $222, and Nutt agreed to pay a

“Tenant Amount” of $113 toward the total “Contract Rent” of $335.

       {¶3} In July 2009, Premiere filed a petition in forcible entry and detainer

and a claim for damages against Nutt, alleging that she failed to timely pay rent on


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the apartment; that, on June 22, 2009, it served upon Nutt a written notice to leave

the premises for breach of the rental agreement; and, that Nutt unlawfully and

forcibly entered subsequent to the notice and continued to forcibly detain the

premises from Premiere’s possession.          Consequently, Premiere requested

possession of the premises, judgment for the reasonable value of repairs for any

damages to the premises, judgment for $139 representing past-due rent, interest at

a rate of 10% per annum, and court costs and attorney fees.

      {¶4} In July 2009, the trial court held a civil eviction hearing. Connie

Biddinger, manager of the Scioto Village Apartments and employee of Premiere

Management, testified that Nutt failed to fulfill the terms and conditions of the

lease agreement because she did not pay her rent for the months of May and June

2009; that Nutt attempted to tender partial payment after Premiere filed the

eviction action, but she informed Nutt that she could not accept partial payment

because it would result in dismissal of the eviction action; that she informed the

Housing Authority that Nutt had not paid her rent; and, that she had no knowledge

whether Premiere received a housing assistance payment from the Housing

Authority on Nutt’s behalf for the months of May, June, or July 2009.

      {¶5} In August 2009, the trial court held another hearing. Premiere’s

attorney stipulated that it had, in fact, received payments from the Housing

Authority on Nutt’s behalf after filing the eviction action. Additionally, Cindy


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Ring, the Housing Authority’s Executive Director, testified that all of the housing

assistance payments for twenty of Premiere’s tenants, including Nutt, were placed

on one check and directly and electronically deposited into Premiere’s bank

account, and the Housing Authority would then send Premiere a statement with a

breakdown of the housing assistance payments; and, that the Housing Authority

was responsible to make the housing assistance payments until the tenant actually

vacated the premises, even if the tenant continued to occupy the premises after an

eviction order. During this hearing, the trial court stated the following from the

bench:

         [TRIAL COURT]: * * * when we look at rent, while the tenant is
         normally liable for the payment of full rent, nothing in the law
         procludes [sic] the landlord of accepting partial payment,
         however he cannot use a partial payment as excuse to evict the
         tenant once he’s accepted it. When we look at where that
         subsidy is, in part, rent or not rent, because an interpretation of
         the Court I believe, as to the contract and the information in
         regards to that. If you refer to your exhibit “B” [March 2009
         Rent Notification letter] filed in your complaint, contract rent is
         three hundred and thirty-five dollars. * * * So, it’s, it is called
         rent, by your own agreement, contract rent, so they were
         receiving partial payments during that time of contract rent. * *
         *

(Aug. 2009 Hearing, p. 2).

         {¶6} In September 2009, the trial court issued the following findings of

fact and conclusions of law, in pertinent part:




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       (1) The parties entered into a written lease agreement on May
       20, 2008 which called for rent in the amount of $315.00 per
       month;
       (2) The Allen Metropolitan Housing Authority agreed to pay to
       Plaintiff the sum of $222.00 per month for partial payment
       towards Defendant’s monthly obligation (Exhibit B – from
       complaint);
       (3) In June of 2009 Defendant fail [sic] to pay her share of rent;
       (4) However Plaintiff has received and kept the payment from
       the Allen Metropolitan Housing Authority on a monthly basis
       through the month of August
        ***
       (9) The Plaintiff has received and kept partial rent for June,
       July and August of 2009 and they have waived their right to
       proceed on their complaint filed with this Court on July 7, 2009.

(Sep. 2009 Findings of Fact Conclusions of Law and Entry, pp. 1-2). Thereafter,

the trial court denied Premiere’s request for restitution of the premises.

       {¶7} It is from this judgment that Premiere appeals, presenting the

following assignment of error for our review.

       THE TRIAL COURT ERRED BY FINDING THAT
       APPELLANT’S CONTINUED ACCEPTANCE OF HOUSING
       ASSISTANCE PAYMENTS SUBSEQUENT TO SERVING A
       NOTICE TO LEAVE PREMISES CONSTITUTED WAIVER
       OF THE BREACH OF THE LEASE AS A MATTER OF LAW.

       {¶8} In its sole assignment of error, Premiere argues that the trial court

erred when it found that Premiere’s acceptance of housing assistance payments

subsequent to its serving Nutt with a notice to leave the premises amounted to a

waiver of Nutt’s breach of the lease.       Specifically, Premiere argues that the




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housing assistance payments did not constitute “rent”, for which partial acceptance

bars a forcible entry and detainer action. We agree.

      {¶9} Premiere argues that the housing assistance contract between Nutt

and the United States Department of Housing and Urban Development (hereinafter

“HUD”) specified that the monthly housing assistance payment as of March 10,

2009, was $222 per month, with the tenant paying the remaining $113 as “rent”;

that, during the pendency of the forcible entry and detainer action, Premiere

continued to receive housing assistance payments from the Housing Authority;

that the housing assistance payments for twenty tenants, including Nutt, were

consolidated and paid via a single check directly and electronically deposited into

Premiere’s bank account on a monthly basis; that the trial court erroneously found

that the payments constituted acceptance of partial rent, for which Premiere could

not evict Nutt; that the trial court wrongly based its decision that the payments

were “rent” on the letter to Nutt from the Housing Authority that referred to the

housing assistance payment as part of the total “rental amount”; that Section

1437f, Title 42, U.S. Code, which governs the federal housing assistance program,

does not define “rent,” but uses that term only in reference to the amount paid by

the assisted low-income parties; that the trial court’s interpretation of the term

“rent” is inconsistent with the Supreme Court of Ohio’s definition of the term;

and, that at least one other court has found that assistance payments do not


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constitute rent where that interpretation is inconsistent with the lease agreement,

citing Midland Management Co. v. Helgason (1994), 158 Ill.2d 98, 103, 630

N.E.2d 836.

       {¶10} A landlord may bring a forcible entry and detainer action against a

tenant who defaults on payment of rent.         R.C. 1923.02(A)(2).     However, a

landlord is first required to notify the tenant that she is being asked to leave the

premises. R.C. 1923.02(B) and 1923.04(A). If the tenant fails to vacate the

premises within three days of receiving the notice to vacate, the landlord is then

permitted to commence a forcible entry and detainer action against the tenant.

R.C. 1923.04. If the landlord waives the notice to vacate, the trial court lacks

jurisdiction to proceed with the action. Shimko v. Marks (1993), 91 Ohio App.3d

458, 463. Courts have long held that a landlord waives notice to vacate where she

accepts a partial or full payment of future rent after issuing the notice, and, thus,

may not proceed with her forcible entry and detainer action. Wingate at Belle

Meadows v. Higgenbotham, 179 Ohio App.3d 645, 2008-Ohio-6229; Classic A

Properties v. Brown, 4th Dist. No. 02CA2868, 2003-Ohio-5850; Gary Crim, Inc.

v. Rios (1996), 114 Ohio App.3d 433, 436; Shimko, 91 Ohio App.3d at 463;

Country Squire Apartments v. Morales, 6th Dist. No. 91WD096, 1992 WL

185679; Graham v. Pavarini (1983), 9 Ohio App.3d 89, 92.




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       {¶11} Several Ohio courts have held that a landlord’s acceptance of a

housing assistance payment from government housing authorities does not

constitute a waiver of notice to vacate, and thus, it does not prevent the trial court

from proceeding on the forcible entry and detainer action because a housing

assistance payment does not constitute the payment of “rent” by the tenant.

       {¶12} In Vienna Forest Apartments v. Passmore, 12th Dist No. CA2004-

05-104, 2005-Ohio-2368, the Twelfth Appellate District examined a situation

where the defendant-tenant was receiving housing assistance payments from HUD

under Section 1437f, Title 42, U.S. Code, administered through a local housing

agency. The plaintiff-landlord filed a forcible entry and detainer action against the

tenant alleging untimely payment of rent, which the trial court dismissed. On

appeal, the landlord argued that the trial court erred in ruling that the landlord’s

acceptance of housing assistance payments from HUD on the tenant’s behalf

constituted acceptance of rent, waiving the notice requirements of R.C. 1923.04

and requiring dismissal of the action. The evidence demonstrated that the landlord

received one monthly check on behalf of all of its tenants receiving government

housing assistance and was, in fact, required to accept payment on behalf of a

tenant as long as the tenant remained in the housing, and his right to remain there

was questionable. Based on these facts, the Twelfth District concluded that the

landlord’s acceptance of government housing assistance payments made on the


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tenant’s behalf for payment of future rent did not waive the notice requirements of

R.C. 1923.04 or invalidate the action in forcible entry and detainer. 2005-Ohio-

2368, at ¶33.

       {¶13} The Ninth Appellate District examined a similar situation in Natl.

Corp. for Hous. Partnership, d.b.a. Spring Hill Apartments v. Chapman (1984), 18

Ohio App.3d 104.       In Chapman, the defendant-tenant also received housing

assistance through HUD for housing she leased from the plaintiff-landlord, Spring

Hill. Spring Hill eventually filed a forcible entry and detainer action after the

tenant failed to make timely rent payments. The tenant appealed from the trial

court’s judgment in Spring Hill’s favor, arguing that, because Spring Hill accepted

payments from HUD that were made on her behalf, it waived the notice to vacate

under R.C. 1923.04, and the trial court lacked jurisdiction to decide the action.

The Ninth District reasoned that, in determining whether the housing assistance

payments from HUD had the same legal effect as rental payments made by the

tenant, it was necessary to examine the terms of the lease as well as the federal

regulations. The Ninth District then found that the terms of the lease permitted the

landlord to terminate the lease for the tenant’s failure to pay rent; that no part of

the applicable federal regulations prohibited a landlord from evicting a tenant for

failing to pay rent or a portion of the rent even if the landlord had received partial

payment via a federal housing assistance payment; and, that “[t]he rent subsidy,


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while providing a personal benefit to a qualified tenant * * *, is not personal in the

sense that it is [the tenant’s] money.” 18 Ohio App.3d at 106. For these reasons,

the court concluded that the landlord had not waived notice and the trial court had

jurisdiction to proceed with the forcible entry and detainer action.

       {¶14} In contrast to Passmore and Chapman, supra, the Fourth Appellate

District has found that, where a tenant’s rent is fully subsidized by the federal

government, the housing assistance payments are essentially “rent” paid to the

landlord on the tenant’s behalf, and a landlord’s acceptance of these payments for

future rent waives the notice requirement under R.C. 1923.04 and prevents the

landlord from proceeding with her forcible entry and detainer action. Classic A

Properties, 2003-Ohio-5850, at ¶26, appeal not allowed by 101 Ohio St.3d 1468,

2004-Ohio-819.

       {¶15} We note that, as discussed in Premiere’s brief, the Supreme Court of

Illinois has reached a decision similar to Passmore and Chapman, supra. In

Midland Management Co. v. Helgason (1994), 158 Ill.2d 98, 630 N.E.2d 836, the

defendant-tenant’s rent was subsidized under Section 1437f, Title 42, U.S. Code,

administered through a housing agency that made housing assistance payments on

his behalf. The plaintiff-landlord eventually served the tenant with a notice of

termination of the lease and a forcible entry and detainer action due to the tenant’s

failure to pay for damages he caused to the premises. The tenant failed to vacate


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the premises and the landlord continued to receive housing assistance payments

under HUD for several months.          The trial court found that the landlord’s

acceptance of the housing assistance payments constituted acceptance of rent and

waived the tenant’s breach of the lease, leaving the trial court without jurisdiction

to proceed on the detainer action, which the appellate court affirmed. Thereafter,

the Supreme Court of Illinois reversed, finding that the housing assistance

payments did not constitute “rent” for purposes of waiver of the notice to vacate

requirements. The Court cited Chapman, supra, for what it characterized as the

most compelling reason—that HUD was not a party to the lease agreement

between the tenant and landlord and that there was no contention that the tenant

was a party to the housing assistance contract between HUD and the landlord.

Additionally the Court based its decision on further reasoning: (1) that the housing

assistance payments were neither defined nor referred to as “rent” in the lease

agreement; (2) that “[r]ent is given in consideration of a lease,” a lease gives rise

to a landlord-tenant relationship, that possession and control of the premises must

pass to the tenant, and, that the lease at issue did not demonstrate that HUD

acquired any possessory interest in the premises; (3) that, pursuant to Section

1437f, Title 42, U.S. Code, a landlord is entitled to receive housing assistance

payments even for a vacant premises under certain conditions, which indicates

“that the housing assistance payment flows with the rental unit, and not the


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Section 8 tenant” and that “the housing assistance payment contract, unlike a

lease, survives the landlord-tenant relationship”; and, (4) that the characterization

of housing assistance payments as rent for purposes of waiver of breach would be

inconsistent with HUD’s goal of providing housing for low-income families

because it could make landlords reluctant to lease a premises to a tenant receiving

such payments. 158 Ill.2d at 105-106. See, also, Westminster Corp. v. Anderson

(1995), Minn. App. No. C4-95-409, 536 N.W.2d 340 (finding that “the doctrine of

waiver does not apply to a landlord’s acceptance of public housing assistance

payments”).

       {¶16} Initially, we note that the housing assistance contract to which

Premiere refers in its argument was appended to Premiere’s appellate brief and

reflects that, in March 2009, Nutt entered into a “Housing Assistance Payments

Contract” pursuant to Section 1437f, Title 42, U.S. Code, the Tenant-Based

Assistance Housing Choice Voucher Program administered by HUD. However,

this document was not made a part of the record and, consequently, is not properly

before us. Accordingly, we may not consider the housing assistance contract in

our analysis of Premiere’s arguments. See Bank One Lima, N.A. v. Altenburger

(1992), 84 Ohio App.3d 250, 256, citing Paulin v. Midland Mut. Life Ins. Co.

(1974), 37 Ohio St.2d 109.




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       {¶17} Page 8, paragraph 26, of the lease between Premiere and Nutt

provides, in pertinent part, that “If Tenant (1) fails to pay any rent or other charges

within 10 days of the due date hereunder * * * Landlord shall have the option and

right to terminate this Lease and Tenant’s right to occupy the Apartment, and

Landlord shall be permitted to evict Tenant and repossess the Apartment by any

lawful means.” The lease does not define “rent” nor is that term used to refer to

housing assistance payments. HUD was not made part of the lease, and it does not

appear that Premiere endorsed the “Rent Notification” letter issued to Nutt by the

Housing Authority in March 2009 that indicated the “contract rent” of $335

included the $222 housing assistance payment.

       {¶18} We find that, as stated in Chapman, while the housing assistance

payment provided a personal benefit to Nutt, it was not “personal” in the sense

that it was Nutt’s money. See Chapman, 18 Ohio App.3d at 106. Further, we

cannot find that the letter issued unilaterally by the Housing Authority to Nutt

modified the lease between Premier and Nutt in that it characterized the housing

assistance payments as “rent.” Additionally, similar to Passmore, the evidence

demonstrated that Premiere received one lump monthly payment on behalf of

twenty of its tenants receiving government housing assistance payments, directly

and electronically deposited into its bank account. Further, as in Passmore and

Helgason, evidence was heard that Premiere was, in fact, entitled to receive


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payments on behalf of a tenant for so long as she occupied the housing, regardless

of the eviction action against her.     We are persuaded by the reasoning in

Passmore, Chapman, and Helgason, as applied to the facts of this case, that

Premiere’s acceptance of government housing assistance payments did not

constitute a waiver of the notice to vacate and bar its forcible entry and detainer

action, because the housing assistance payments did not constitute the payment of

“rent” by Nutt.

      {¶19} Having found error prejudicial to the appellant herein, in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

                                                          Judgment Reversed and
                                                               Cause Remanded

WILLAMOWSKI, P.J. and SHAW, J., concur.
/jlr




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