The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Randolph, Slip Opinion No. 2023-Ohio-4753.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2023-OHIO-4753
THE STATE OF OHIO/CITY OF TOLEDO, APPELLANT, v. RANDOLPH, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Randolph, Slip Opinion No. 2023-Ohio-4753.]
Criminal law—R.C. 2911.21—Criminal trespass—Property law—Landlords, tenants,
tenants’ guests—A landlord or landlord’s agent, without first reserving authority to
do so in lease agreement, may not prohibit a person from entering onto the property
such that a tenant is prohibited from inviting that person onto the property—A
landlord cedes possessory interests in leased property to the tenant such that the
tenant may invite onto the property a person whom the owner has sought to ban
from the premises, provided that no language to the contrary appears in lease
agreement and preserves the landlord’s possessory interests—Court of appeals’
judgment affirmed.
(No. 2022-1082—Submitted May 17, 2023—Decided December 29, 2023.)
CERTIFIED by the Court of Appeals for Lucas County, No. L-21-1140,
2022-Ohio-2909.
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SUPREME COURT OF OHIO
FISCHER, J.
{¶ 1} In this certified-conflict case, we are asked to determine whether a
landlord or landlord’s agent may exclude a person from the leased premises,
without there being any authority to do so in the lease agreement, such that the
excluded person is considered a trespasser when on the premises even when a tenant
of the property has permitted the person to enter the premises. We hold that a
landlord or landlord’s agent may not exclude such a person from the premises
without first reserving the authority to do so in the lease agreement.
FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} The property manager of the Greenbelt Place Apartments in Toledo
banned appellant, Antonio Randolph, from the apartment-complex premises. The
property manager subsequently responded to a noise complaint regarding
Randolph’s uncle’s leased unit in the complex. When the property manager entered
the unit, she discovered Randloph there. Randolph was then arrested and charged
with criminal trespass under R.C. 2911.21 in the Toledo Municipal Court.
{¶ 3} At a bench trial, Randloph testified that his uncle had invited him to
the apartment. Appellant, the city of Toledo, presented no evidence indicating that
the lease agreement signed by Randolph’s uncle had authorized the property owner
or property manager to exclude anyone from the premises; therefore, we presume
for purposes of our analysis that no such contractual provision existed.
{¶ 4} The trial court found Randolph guilty of criminal trespass. The court
found persuasive the decision of the Second District Court of Appeals in State v.
Smith, 2d Dist. Montgomery No. 25048, 2012-Ohio-4861, particularly that
decision’s conclusion that a lease agreement for a particular rental unit does not
automatically divest the landlord of the right to exclude others from that unit,
because a landlord has a duty to ensure the quiet enjoyment of the premises for the
tenants of neighboring units, id. at ¶ 15-17. Because the evidence submitted at trial
showed that Randolph had been barred from the apartment complex, the trial court
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determined that Randolph had lacked privilege to enter the premises and that he
was therefore guilty of criminal trespass.
{¶ 5} The Sixth District Court of Appeals reversed the trial court’s
judgment. 2022-Ohio-2909, 194 N.E.3d 476, ¶ 43. A majority of the appellate
panel held that for Randolph to be found guilty of criminal trespass, the city had to
prove that Randolph had entered the premises without privilege. See id. at ¶ 35.
Construing decisions of other district courts of appeals, the majority found it
significant that Randolph had entered the premises at his uncle’s invitation and that
the invitation had not been revoked. Id. The majority concluded that viewing the
evidence in a light most favorable to the city, “no rational trier of fact could have
found beyond a reasonable doubt that [Randolph] was without privilege to be in his
uncle’s Greenbelt apartment.” Id. at ¶ 37.
{¶ 6} One judge on the appellate panel concurred in judgment only. Id. at
¶ 44 (Zmuda, J., concurring in judgment only). The concurring judge stated that
the issue in the case actually was “whether the lessor or the lessee has the authority
to grant privilege to another to enter and remain in [a] leased unit.” Id. at ¶ 49. He
concluded that “[u]nless otherwise stated, a lease agreement grants the lessee [that]
right.”
{¶ 7} The Sixth District certified to this court that its decision conflicted
with the Second District’s decisions in Smith, 2012-Ohio-4861, and State v. Scott,
2d Dist. Montgomery No. 19902, 2004-Ohio-271. 2022-Ohio-2909 at ¶ 40-41.
{¶ 8} This court determined that a conflict existed and ordered briefing on
the questions certified by the Sixth District, which are:
1. Can a rental property owner, or the owner’s agent
(landlord or agent), prohibit a person from entering onto the
property such that a tenant of that property is prohibited from
inviting that person to the tenant’s residence or apartment?
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2. Must the owner of rental property, or an agent (landlord
or agent), sacrifice possessory interests in the property to a tenant so
the tenant can invite a banned or “trespassed” person to the tenant’s
residence or apartment?
168 Ohio St.3d 1464, 2022-Ohio-4268, 198 N.E.3d 888.
ANALYSIS
{¶ 9} The city argues that the primary consideration in this case is a
landlord’s duty to provide quiet enjoyment for all the tenants of an apartment
complex, not just a particular tenant. It accordingly asks this court to hold that a
landlord or landlord’s agent retains the authority to prohibit a person from entering
leased property, and it asks us to reverse the Sixth District’s decision. Randolph,
on the other hand, argues that the court of appeals correctly decided the case and
that this court should affirm its decision under the analysis of either the panel’s
majority or the judge concurring in judgment only.
{¶ 10} R.C. 2911.21(A) provides that “[n]o person, without privilege to do
so, shall * * * [k]nowingly enter or remain on the land or premises of another.”
R.C. 2901.01(A)(12) defines “privilege” as “an immunity, license, or right
conferred by law, bestowed by express or implied grant, arising out of status,
position, office, or relationship, or growing out of necessity.” In applying these
statutory provisions, both the trial court and the Sixth District surveyed decisions
from other district courts of appeals. A brief review of those appellate decisions
serves as a helpful introduction to our analysis.
{¶ 11} The earliest case considered below was Kent v. Hermann, 11th Dist.
Portage Nos. 95-P-0044 and 95-P0045, 1996 Ohio App. LEXIS 880 (Mar. 8, 1996).
In Hermann, the owner of an apartment building had advised the defendant, who
was the girlfriend of a tenant, that she was not permitted to be on the property. Id.
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January Term, 2023
at *1-2. The defendant was thereafter convicted of criminal trespass after she twice
visited the tenant’s apartment at the tenant’s invitation. Id. at *2.
{¶ 12} In analyzing whether a landlord or landlord’s agent may prohibit a
person from being on the property despite the person’s having been invited onto the
property by a tenant, the Eleventh District Court of Appeals first noted that trespass
is an invasion of the possessory interests in property, not an invasion of title, and
that the owner of the leased property sacrifices his or her possessory interests in the
property to the tenant and may not prohibit the tenant from inviting others onto the
property. Id. at *4-5, citing State v. Herder, 65 Ohio App.2d 70, 74, 415 N.E.2d
1000 (10th Dist.1979). The court of appeals accordingly reasoned that a person
cannot be guilty of trespassing on the landlord’s property if that person enters a
tenant’s rental unit with the permission of the tenant. Id. at *5. A guest’s having
entered only the common area of the premises is of no significance, the court
reasoned, because “the landlord’s rights in limiting common ingress and egress
ways to guests of the tenant must also be generally qualified so as to permit access
to the renter’s apartment.” Id. at *7.
{¶ 13} The Hermann court further noted that lease agreements may
reasonably restrict a tenant’s guests’ access to common areas and that a landlord’s
providing notice to a guest of such a restriction may support a future charge of
criminal trespass against the guest. Id. But absent such a provision in the lease
agreement, the court stated, an invited guest’s use of common-area facilities, in and
of itself, does not make that guest guilty of trespass. Id. at *7-8. Applying these
principles, the court concluded that because the defendant had had permission from
the tenant to enter the premises, she was not guilty of criminal trespass. Id. at *8.
{¶ 14} Subsequent to the Hermann decision, the Third District Court of
Appeals decided State v. Hites, 3d Dist. Allen No. 1-2000-22, 2000 Ohio App.
LEXIS 3562 (Aug. 8, 2000). In Hites, the defendant had been notified by an agent
of an apartment-complex manager that he was forbidden from entering any
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common area or unit in the complex. Id. at *2. The defendant was subsequently
convicted of criminal trespass after he was observed in an apartment in the
complex. Id. The defendant had been in the apartment at the invitation of the
tenant. Id. The Third District reversed the defendant’s conviction, concluding that
Hermann was correctly decided, Hites at *5-6, and holding that “an owner of an
apartment complex cannot prohibit guests, invited by the tenant, from being present
on the property,” id. at *7.
{¶ 15} The other two appellate decisions considered by the Sixth District
below were Scott, 2004-Ohio-271, and Smith, 2012-Ohio-4861, the Second District
decisions that the Sixth District found to be in conflict with its decision. See 2022-
Ohio-2909, 194 N.E.3d 476, at ¶ 40-41. In Scott, the defendant had been notified
that he was not permitted to enter any land or premises owned by the Dayton
Metropolitan Housing Authority (“DMHA”). Id. at ¶ 2. The defendant was
subsequently convicted of criminal trespass after he entered an apartment building
owned by DMHA at the invitation of his girlfriend, who was renting an apartment
in the building. Id. at ¶ 3, 9. In finding that the defendant had entered the property
without privilege to do so, the Second District noted that the lease agreement signed
by the defendant’s girlfriend included a provision specifying that tenants must abide
by reasonable DHMA regulations. Id. at ¶ 19. Because DMHA’s criminal-trespass
policy was a reasonable regulation that the defendant’s girlfriend had been aware
of, the court of appeals affirmed the defendant’s criminal-trespass conviction. Id.
at ¶ 19, 21, citing Virginia v. Hicks, 539 U.S 113, 123 S.Ct. 2191, 156 L.Ed.2d 148
(2003).
{¶ 16} In Smith, a manager of an apartment complex had told the defendant
that he was not allowed to return to the complex. Id. at ¶ 2-3. The defendant was
subsequently convicted of criminal trespass after he returned to the property. Id. at
¶ 4-5, 9. Relying on Scott, the Second District concluded that the defendant was
guilty of criminal trespass even though he had entered the property at the invitation
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of a tenant. Smith at ¶ 16-18. In its analysis, the court of appeals reasoned that “[a]
landlord has a common law duty to provide for the health and safety of all of his
tenants, as well as to ensure their quiet enjoyment of the premises.” Id. at ¶ 16,
citing Davis v. Sean M. Holley Agency, Inc., 2d Dist. Montgomery No. 23891, 2010-
Ohio-5278, ¶ 12. The court concluded that “[a]llowing one tenant’s invitation to
trump the landlord’s ability to discharge that duty can deprive other tenants of their
right to quiet enjoyment.” Id.
{¶ 17} Here, the trial court found Smith to be persuasive, while the Sixth
District found Hermann, 1996 Ohio App. LEXIS 880, and Hites, 2000 Ohio App.
LEXIS 3562, to be persuasive, 2022-Ohio-2909 at ¶ 35. We agree with the Sixth
District’s determination that the courts in Hermann and Hites reached the correct
conclusions.
{¶ 18} We also agree with the judge concurring in judgment only below that
the crux of this case is “whether the lessor or the lessee has the authority to grant
privilege to another to enter and remain in [a] leased unit,” 2022-Ohio-2909, 194
N.E.3d 476, at ¶ 49 (Zmuda, J., concurring in judgment only), because that issue
focuses on a key aspect of R.C. 2911.21(A). In resolving that question, we
emphasize that Ohio law provides that a landlord cedes his or her possessory
interests in leased property to the tenant and therefore may not prohibit the tenant
from inviting guests onto the property. See, e.g., Hermann at *4-5, citing Herder,
65 Ohio App.2d at 74, 415 N.E.2d 1000. We accordingly conclude that a landlord
or landlord’s agent generally may not exclude a person from rented premises such
that the excluded person is considered a trespasser when on the premises even if
the person received permission to enter the premises from a tenant of the property.
{¶ 19} In concluding to the contrary, the trial court below relied on Smith,
2012-Ohio-4861, particularly the Second District’s rationale that a landlord has an
obligation to protect all tenants’ rights to the quiet enjoyment of the premises, id. at
¶ 15-17. On appeal to this court, the city reasserts that argument. However, as
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correctly noted by the judge concurring in judgment only below, that obligation can
be fulfilled without automatically infringing the rights of the tenant, because the
appropriate remedy when one tenant’s conduct breaches another tenant’s quiet
enjoyment of the property is a forcible-entry-and-detainer action against the
offending tenant. See 2022-Ohio-2909 at ¶ 60 (Zmuda, J., concurring in judgment
only). To the extent that the right to quiet enjoyment applies when one tenant’s
behavior disrupts another tenant, the landlord can protect all tenants’ rights to quiet
enjoyment by evicting a tenant who violates the other tenants’ rights to quiet
enjoyment. It follows that the rights of such other tenants can be upheld without
altering existing Ohio law recognizing that landlords cede possessory interests in
leased properties to their tenants.
{¶ 20} The judge concurring in judgment only below was also correct in
concluding that Scott, 2004-Ohio-271, is not actually in conflict with the Sixth
District’s decision in this case. See 2022-Ohio-2909 at ¶ 65 (Zmuda, J., concurring
in judgment only). As explained above, Scott involved a lease agreement
containing language that granted the landlord authority to exclude others from the
property, id. at ¶ 19. Such a contractual provision serves as a tool by which a
landlord can maintain control over access to a property if the landlord so desires.
See 2022-Ohio-2909 at ¶ 61 (Zmuda, J., concurring in judgment only). Because
the city failed at trial to produce evidence indicating that the lease agreement in this
case contained such a provision, Scott is inapposite.
{¶ 21} For these reasons, we hold that a landlord or landlord’s agent,
without first reserving the authority to do so in the lease agreement for the property,
may not prohibit a person from entering onto the property such that a tenant of the
property is prohibited from inviting that person onto the property. We further hold
that a landlord cedes possessory interests in the leased property to the tenant such
that the tenant may invite onto the property a person whom the landlord has sought
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to ban from the premises, provided that no language to the contrary appears in the
lease agreement and preserves the landlord’s possessory interests.
CONCLUSION
{¶ 22} We answer the first certified-conflict question in the negative and
hold that a landlord or landlord’s agent, without first reserving the authority to do
so in the lease agreement for the property, may not prohibit a person from entering
onto the property such that a tenant is prohibited from inviting that person onto the
property. We answer the second certified-conflict question in the affirmative and
hold that a landlord cedes possessory interests in the leased property to the tenant
such that the tenant may invite onto the property a person whom the owner has
sought to ban from the premises, provided that no language to the contrary appears
in the lease agreement and preserves the landlord’s possessory interests. We
accordingly affirm the judgment of the Sixth District.
Judgment affirmed.
KENNEDY, C.J., and DEWINE, DONNELLY, STEWART, BRUNNER, and
DETERS, JJ., concur.
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Rebecca A. Facey, Toledo Chief Prosecuting Attorney, and John B. Arnsby
and Jimmie Jones, Assistant Prosecuting Attorneys, for appellant city of Toledo.
Kendall Legal Services, L.L.C., and Laurel A. Kendall, for appellant
Antonio Randolph.
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