A judge's decision could determine whether pay-to-stay should be enforced in Cincinnati
A Hamilton County Municipal judge is now considering whether Cincinnati's pay-to-stay ordinance should be enforced.
The measure is supposed to protect renters from a late payment eviction if they can pay all past due rent and fees. But the magistrates say they won't enforce it because they think it conflicts with state law.
Legal Aid Attorney Zach Frye argued on behalf of one of his clients in a hearing before Judge Dwane Mallory on Thursday.
"This is the first case where there's been an objection filed to the court not enforcing the pay-to-stay defense," Frye said. "So remember, there wasn't a case or controversy before the court when the Municipal Court decided that they wouldn't enforce pay-to-stay."
That decision not to enforce the ordinance is unusual because it hadn't been challenged; the court just decided on its own.
During Thursday's hearing, Mallory questioned attorney Dave Donnett, who represents Mt. Washington Holdings in the eviction case: "Was there a case pending in court, that was decided on the merits, to determine that there was going to be this preemptive non-enforcement of this pay-to-stay ordinance?"
"My case post dates that," Donnett responded.
"So before there was a case on the docket, the court decided that there was going to be — that it was unconstitutional?" Mallory asked.
"Correct," Donnett said. "And that's what we rely on in arguing that the magistrate ruled correctly."
Council passed the measure last year. A magistrate announced the decision not to enforce on the day it went into effect in December. Since then, Frye has attempted to use the pay-to-stay defense on behalf of several clients.
"Evictions really have increased back to the level they were at before COVID, which I think speaks to an ongoing affordable housing crisis in our community," Frye said. "And still, the court's not enforcing pay-to-stay. And so I think that makes it even more challenging for tenants right now, especially with rents increasing, with inflation."
One reason some landlords have refused to accept full payment after filing an eviction is that the ordinance also applies to a voucher from a certified agency promising future payment. In other words, there's a guaranteed payment down the road, but the check isn't available immediately. That's what happened in this eviction case, when the tenant showed proof of rental aid from the Community Action Agency that would be paid later.
If Judge Mallory dismisses the eviction, it could set a precedent for magistrates to start enforcing pay-to-stay.
Mallory says he will issue a judgement by June 10.
(Editor's note: Previous WVXU reporting described the eviction case of Cathy Stone, whose landlord filed for eviction shortly after her husband died. Stone spent months searching for a more affordable place to live while her eviction case was pending. Frye, who also represents Stone, says she recently found a new place to live and has moved.)