Allstate Ins. Co. v. Dorsey , 46 Ohio App. 3d 66 ( 1988 )

When statutory law is enacted in an area previously covered by the common law, the statutory law supersedes the common law, but only to the extent that its language specifically provides.State, ex rel. Morris, v. Sullivan (1909), 81 Ohio St. 79,90 N.E. 146, paragraph three of the syllabus. Thus, where a legislative Act is silent, the common law persists. And where the common law has neither been modified nor abrogated by statute, the common law has the same force and effect as a statute.Schwindt v. Graeff (1924), 109 Ohio St. 404, 407, 142 N.E. 736,737.

In the Landlord and Tenant Act, the legislature continued to protect the tenants' common-law rights to quiet enjoyment and exclusive possession. Statutory duties are imposed on the landlord under R.C. 5321.04. R.C. 5321.13(F) provides that the landlord may agree to assume the responsibility for fulfilling any duty or obligation imposed upon a tenant. On the other hand, the imposition of duties upon the tenant under R.C. 5321.05 fails to protect the landlord's common-law right to have the property returned in as good a condition as it was delivered to the tenant, absent normal wear and tear.

While R.C. 5321.05 does impose a number of duties on the tenant which prohibit acts of waste and require keeping the property in good condition, any tenant's obligation beyond those enumerated, that are inconsistent with R.C. Chapter 5321, are ineffective. R.C. 5321.06. The limiting character of these provisions leaves a gap in the legislation overlooking the landlord's common-law rights. Such legislative treatment is inconsistent with the common law by failing to provide for those landlord-tenant matters which are not addressed by the Act.

R.C. 5321.05(A)(6) merely requires a tenant who has exclusive possession of a property to forbid a guest from intentionally or negligently damaging or destroying the property, where the tenant has notice or is aware of the actions of the guest. Absent such knowledge, the loss falls upon the landlord who has no control over the actions of the guest, and who retains the common-law right to have the property returned in as good a condition as it was delivered. Further, even if the tenant is aware of the actions of the guest, to comply with his statutory duty, he need only give a verbal command to the guest to refrain from his action. Ohio Cas. Ins. Co. v. Wills (1985), 29 Ohio App.3d 219, 29 OBR 264, 504 N.E.2d 1164, paragraph one of the syllabus. If this verbal command fails to result in the cessation of the guest's actions, presumably the tenant has discharged his statutory duty and again the landlord incurs the loss. In either case, the landlord is forced to repair the damage in order to protect his common-law right to have the property returned in as good a condition as delivered. This anomaly may be further compounded should the tenant then claim he has been constructively evicted because of the damage caused by his guest.

The common law is based on common sense. It makes no sense to give such immunity to tenants for damages caused to the leased premises during their tenancy. The legislature needs to address this subject further.