Renters in Cincinnati are supposed to be safe from a late payment eviction as long as they can pay all past due rent and fees. It's a new eviction protection passed by City Council last year. But the Hamilton County Municipal Court has made the unusual decision to not enforce the ordinance.
Cathy Stone has lived in the Aspen Village apartments in West Price Hill for five years. She and her husband Sherbert paid rent late almost every month because of when their social security checks got deposited.
"We senior citizens, we have to wait til they send your money to you," Cathy Stone said. "You can't pay stuff every first of the month."
As long as the Stones paid a late fee with their rent, the owner didn't bother them about it.
That changed last fall. Cathy and Sherbert were hospitalized with pneumonia and missed their usual late payment. Sherbert died Oct. 12; less than a week later, Cathy found an eviction notice on their door.
"People had to help me to get the funeral money together," Stone said. "And what little bit of money I had in the bank, I had used all of that."
Stone got approved for rental assistance through the Community Action Agency. But Fath Properties Regional Manager Jordann Morgan says she doesn't think Stone can afford rent long term, so they won't accept the voucher.
"Based on the fact that, clearly, paying rent on time is a problem, we said it would be best to just part ways," Morgan said.
Morgan says they're willing to accept the past due rent and dismiss the eviction, but Stone would still have to move out — and Stone says that's not as easy as it sounds.
"If I get an apartment like now or real soon, I got to have the money for a down payment, month's rent, and a deposit, and try to find moving people that's real reasonable to move me," Stone said.
Stone says all the assisted living facilities she's looked at have waiting lists, some even years-long.
'We find it unconstitutional'
This is exactly the kind of situation pay-to-stay is designed for. If a tenant can show a voucher promising all past due rent, late fees and legal fees, the court should dismiss the eviction.
But when Cincinnati's pay-to-stay ordinance went into effect in December, the court announced it wouldn't honor it, arguing it conflicts with state law.
"I might as well just get it out there," said the Honorable Jon Groppe on Dec. 10, according to a court transcript. "After consultation with the judges of Hamilton County Municipal Court, and after our own research as magistrates, the Hamilton County Municipal Court will not be honoring the city of Cincinnati's right to stay if they can pay ordinance."
Groppe said the ordinance "goes against the general laws of the state of Ohio" and "we find it unconstitutional."
The announcement surprised the attorneys at Legal Aid of Greater Cincinnati.
"Typically, when we're talking about a law being enforced or not, there's got to be a legal challenge to it, or some case or controversy before the court that decides the issue. That didn't happen here," said Zach Frye, staff attorney with Legal Aid.
Frye represents Stone and other tenants facing eviction. He's in court every week, bringing up the pay-to-stay defense whenever he can.
"The reality in Hamilton County right now is that tenants are being evicted who are going to receive rental assistance later," Frye said.
The idea that pay-to-stay could contradict state law is surprising to Debra Lavey, a senior attorney with Advocates for Basic Legal Equality in Dayton, which also has a pay-to-stay ordinance
"Essentially, pay-to-stay just codifies an equity defense that already exists in Ohio law in landlord tenant cases, that basically says that if a tenant can make a landlord whole, then they should be able to stay at their property," Lavey said.
Although the equity defense is valid any time, Lavey says it's difficult for a tenant without legal representation to make the argument in court. Pay-to-stay, on the other hand, is easier for tenants to argue on their own.
A version of pay-to-stay is active in 11 Ohio cities, including Toledo, Akron and Cleveland Heights. Lavey says no other court has shown concern about conflict with state law.
"This is my 23rd year at Legal Aid [and] I've never seen that happen, where a court has just decided on their own, with no prompting through briefs or some other legal decision, to go a different way," Lavey said. "So I'm not familiar with that. And I'm frankly surprised that a court would do that."
Why then?
So why would the Hamilton County magistrates make this decision? There's seemingly no explanation — no court documents or references to similar legal opinions.
Municipal Court Administrator Andrew Gillen declined an interview on behalf of the magistrates. A December letter from Presiding Judge Heather Russell to Legal Aid says there is no policy to ignore pay-to-stay.
But as recently as Feb. 10, another magistrate said in court the judges are not enforcing the city ordinance: "[The judges] found it to be in conflict with state law," said the Honorable Melissa West.
Zach Frye says it's also confusing that the court enforced a temporary version of pay-to-stay last year, which was active until the state's COVID-19 emergency declaration expired. Council passed the permanent version a few months later.
Although it's rare, Frye says this isn't the first time the Hamilton County Municipal Court has done this.
"It happened with the CDC moratorium, which was basically a pause on evictions issued by the federal government, by the CDC," Frye said. "And back in April 2021, the court decided that it would not be enforced without a case or controversy before it."
Council Member Greg Landsman introduced pay-to-stay last year. He says he's disappointed with the court.
"I think assigning motivation is dangerous, but I will say: we don't know, right?" Landsman said. "There was no public hearing, there was no public discussion. It was a decision that the judges, the eviction court judges and magistrates made."
City Solicitor Andrew Garth said in a statement his team is working closely with community partners, "to ensure that the rights afforded to tenants under the Cincinnati Municipal Code are protected and recognized by both landlords and the judiciary.”
An upcoming hearing could solidify the court's position. Legal Aid is challenging the decision in one tenant's case where pay-to-stay should have been enforced. Judge Dwane Mallory will consider the challenge in early May.
"Hopefully, in the end, it will be upheld and it will do what it was supposed to do," Landsman said, "which is keep children and families in their homes, make sure that property owners are made whole ... and that neighborhoods are protected from the instability of ongoing evictions."
In the meantime, Cathy Stone is still looking for another place to live. Her eviction case goes to trial in a couple months.
