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Our firm sometimes receives inquiries about areas of the law that few even consider until they are facing a potential lawsuit. Recently, one of those inquiries was whether one can be responsible for his or her tree falling and harming another or their property.

Generally, land owners do not owe a duty with regard to harm caused to another as a result of some natural condition of the land, provided that the harm occurs outside of the land. Heckert. V. Patrick, 473 N.E.2d 1204, 1206 (Ohio 1984). However, there are some exceptions with regard to injuries resulting from falling trees and/or branches. Id. at 1207.

“[A]n owner of land abutting a highway may be held liable on negligence principles under certain circumstances for injuries or damages resulting from a tree or limb falling onto the highway from such property.” Id. For example, “a possessor of land in an urban area is subject to liability to persons using a public highway for physical harm arising from the condition of trees near the highway.” This duty of an urban landowner includes a duty to inspect the tree to make sure that it is safe. Id. This is because urban landowners are thought to have fewer trees – thus, it is not too great of a burden to do so. See id.

However, for rural landowners, who potentially own entire forests of trees, an affirmative duty to inspect the trees would likely amount to a very heavy burden. Id. Therefore, the Ohio Supreme Court has adopted a distinction between rural and urban landowners in this respect. Id. As such, rural landowners have no duty to inspect trees growing on their property adjacent to rural highways, or to ascertain defects that may result in injury to someone travelling on the highway, but, to the extent a rural landowner has “knowledge, actual or constructive, of a patently defective condition of a tree,” that landowner must exercise reasonable care to prevent harm. Id. Constructive knowledge can result from the appearance of the tree, thereby giving notice to an owner that the tree is not in good shape and could fall. In recognition that the distinction between rural and urban areas may not always be an easy one to make as suburbia continues to grow and expand, the Court also provided a list of factors to be considered when making such determination, including “the location of the highway, its size and type, as well as the number of people utilizing it.” Id. at 1208.

Courts have generally applied the law as it relates to rural landowners to cases involving trees falling onto neighbors’ property (i.e., the landowner will be liable to the neighbor where the landowner has actual or constructive knowledge that the tree is defective. See Johnston v. Filson, 2014-Ohio-4758 (12th Dist. 2014) (granting summary judgment to a landowner upon finding that the landowner did not have actual or constructive notice of the tree’s condition); Motorists Mut. Ins. Co. v. Flynn, 2013-Ohio-1501 (4th Dist. 2013) (finding that photographs of a tree significantly leaning toward the neighbor’s house presented a genuine issue of material fact as to whether a reasonable person should have known that the tree posed a danger); Wertz v. Cooper, 2006-Ohio-6844 (4th Dist. 2006) (granting summary judgment in favor of landowner for damage resulting from the landowner’s tree falling onto its neighbor’s property because the neighbor failed to establish that the landowner had either actual or constructive knowledge of a patent dangerous condition of the tree).

So while, in most cases, you will not have an affirmative duty to go out and inspect every single tree on your property, actual or constructive (visible) notice that the tree is not in good shape could create liability if that tree were to fall and cause harm. The lesson? Don’t ignore unhealthy or potentially problematic trees/limbs.

When purchasing a home, most buyers take advantage of the common “home inspection contingency,” affording them the opportunity to have the property professionally inspected in order to reveal potential defects before moving forward with the purchase. For their own protection, many home inspectors have begun including clauses limiting their liability to the price paid for the inspection in their contracts. In essence, this means that, if an inspector charges $500 for the inspection but misses a defect that costs the buyer/homeowner $2,000, the inspector is only liable (if at all) up to the $500 amount, not the full cost of remedying the defect. But are these clauses actually enforceable?

Ohio courts seem to say “Yes.” Home buyers have argued that the clauses are unconscionable (or unfair). However, courts have noted that the clauses appear on the face of the contract, that buyers are able to read the contract and ask questions before signing, and that buyers are permitted to decline the clause or the contract or hire another inspector altogether if they do not agree to the clause. See Barto v. Boardman Home Inspection, Inc., 2015-Ohio-5210, ¶19 (11th Dist. 2015).  Therefore, such clauses are generally not considered unconscionable, and courts have continued to enforce them.

In fact, clauses limiting the liability of inspectors have even been enforced where they effectively preclude enforcement of arbitration clauses contained within the same contract. In McDonough v. Thompson, the parties were required under their contract to resolve any disputes through arbitration. 2004-Ohio-6647, ¶¶2-3 (8th Dist. 2004).  However, because the filing fee for arbitration exceeded the inspector’s maximum liability under the contract (i.e., the price of the inspection), the court declined to enforce the arbitration clause, but did enforce the limitation of liability. See generally id. The court found that “an arbitration clause is not enforceable when the clause, in conjunction with a limitation of liability clause, effectively denies a claimant any redress.” Id. at ¶13. Thus, not only are these clauses enforceable, but they seem to be enforceable even to the preclusion of other clauses carrying a general presumption of enforceability (as arbitration clauses do).

In light of the courts’ eagerness to enforce limitation of liability clauses in this context, a buyer’s best remedy might actually be against the seller of the home (to the extent the seller may have concealed or lied about the defect), and those cases can often be tenuous.

Read more here about home defects and residential property disclosure forms:

• Real estate 101: Ohio property defects claims
• Myth buster: When is a residential property disclosure form required
• Caveat emptor really means caveat emptor

Often the lease will provide the answer to this question, but in Ohio, absent a provision in the lease, R.C 5301.11 provides the default rule:

The lessee of a building which, without fault or neglect on his part, is destroyed or so injured as to be unfit for occupancy, is not liable to pay rent to the lessor or owner thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant. The lessee thereupon must surrender possession of such premises.

The first sentence of the statute provides that if the fire was not the fault of the lessee (tenant), the tenant is freed of her obligation to pay rent. However, the second sentence provides one condition, in order to be freed of her obligation to pay rent, the tenant must surrender possession of the premises.

Case law in Ohio on this point goes back to 1890, “[b]ut, to secure the benefit of the statute, the tenant must surrender or yield up all that remains of the premises embraced in the lease, without any purpose or intention of resuming possession thereof. The legislature has absolved the tenant from an onerous obligation, but the burden is removed only upon his compliance with the statutory condition.” Gay v. Davey, 47 Ohio St. 396, 402, 25 N.E. 425 (1890).

This makes perfect sense. The tenant is given the power to decide how to proceed, either maintain the lease while the necessary repairs are made and returning to the home, or unilaterally decide to terminate the lease – with the requirement that the tenant fully surrender possession of the premises (i.e. remove her belongings and with the understanding that she will not have a right to return after the repairs are made).

But the law does not allow the tenant to have it both ways. She cannot for example, stop paying rent but leave her personal property at the home, expecting to “restart” the lease once the repairs are made.

As noted above, R.C. 5311.01 is the default rule for both residential and commercial lease in Ohio, but the lease may provide a different provision. As always, read the lease.

Finney Law Firm can assist in drafting and enforcing your residential and commercial leases. Click here to contact us online or call (513) 943-6655 to speak with attorney Christopher P. Finney.

As a recent Wall Street Journal article pointed out, for any number of reasons, both legitimate and otherwise, we have seen a proliferation of service and assistance animals. From miniature horses as therapy animals to small dogs carried by airline passengers, to the more common seeing eye dog, Americans are ever more empowered to assert their entitlement to service and assistance animals.

Landlords are reporting questionable claims of disability that they suspect are aimed at getting around no pet clauses and pet deposits in leases. What is a landlord to do in the face of a suspicious claim of disability?

As part of the effort to protect people with disabilities from discrimination, the Fair Housing Act and the Americans with Disabilities Act limit a landlord’s ability to investigate requests for accommodations for service and assistance animals, but not all questions are foreclosed. This is a good thing and reflects our shared values because we want to encourage people with disabilities to get the necessary treatment and services; we want to open the opportunity for a full life to all. But we also don’t want people to make false claims of disability to obtain an improper benefit or unnecessary accommodation. To do so only serves to detract from those who truly suffer.

Recently a client called us needing help. The client owns a single family rental property and does not allow her tenants to keep animals. The tenant called in October about relaxing the no pets rule because he wanted to get his daughter a puppy for Christmas. The landlord declined. One week later, the tenant called again, this time to claim a need for an assistance animal and to request an accommodation.

The landlord had no prior knowledge of any disability and was obviously suspicious that this sudden need for an accommodation was simply a ruse to get around the no pets rule. She turned to us to determine what she should do. The landlord wanted to do the right thing, she wanted to comply with the law. But she also did not want to be taken advantage of.

After discussing the facts with the client and reviewing relevant statutory and case law, we sent a letter to the tenant explaining that the landlord had no prior knowledge that any member of the tenant’s family suffered from any disability, and asked for some documentation to establish (i) the existence of the disability and (ii) how the animal will provide a service or alleviate some symptom of the disability. We also asked for information about the specific animal they intended to bring into the home.

Not so surprisingly, the tenant never responded to our request for information, and no animal (service or otherwise) was brought into the home.

Note that landlords can be found in violation of the Fair Housing Act and Americans with Disabilities Act for even seemingly innocuous questions. If your tenant requests a disability related accommodation, you should consult an attorney about your specific facts and circumstances before making any investigation into the request for an accommodation. More information from the Department of Housing and Urban Development, Office of Fair Housing and Equal Opportunity can be found here.

If you have questions about your obligations under the Americans with Disabilities Act and the Fair Housing Act, use our secure contact page, or call Julie Gugino at 513-943-5669.