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Ohio Real Estate Law: Buyers backing out of residential purchase contracts

Author By Christopher P. FinneyPosted on

The hot topic today in Ohio real estate law is the problem for sellers and Realtors of buyers backing out of residential purchase contracts and thus, after tying up a property for 15 to 30 days, putting the property back on the market for sale. This creates the problem of a “stale” listing and the further problem of other Realtors and buyers asking “what was wrong with that property that Buyer #1 backed out?”

How can your seller avoid this problem?

Defining the problem

First, let’s define the problem.  In today’s hot real estate market, residential properties come on the market and days or even hours later they are under contract and unavailable.  Buyers, fearful of missing out on a deal, have met this challenge by quickly placing a property under contract, figuring they could make their “real decision” during the inspection or financing contingency periods.

Thus, after 10 to 20 days, they perform their home inspection and decide — perhaps for no valid reason — to terminate the contract, leaving the seller holding the bag after having wasted that two to four weeks of prime marketing season.

So, I have had prominent Realtors ask me: What can sellers do to prevent this?  Here’s some perspectives:

Contracts mean something

As a starting proposition, even though the CABR Contract has some holes (read here) and contingencies (inspection, financing, etc.) can provide an “out,” contracts actually mean something. In other words, contracts are written to be enforced (i.e., use as a basis for a law suit), not to be put on a shelf.

If a buyer has not threaded the needle in terms of properly terminating a contract pursuant to a contingency, then the buyer is obligated to perform.  If he fails to, he can be sued for either specific performance (i.e., make him buy) or money damages for their breach.

Earnest money does not define or limit damages available

Here are two blog entries I have written on earnest money under Ohio real estate law:

The pertinent language I want to highlight is:

  • “a common misunderstanding of parties to a purchase contract is that the escrow money is some sort of measure of or limitation on damages for the buyer’s breach, or, conversely, that the return of the earnest money “cures” the seller’s breach and is the limitation on his damages as well. However, unless the real estate purchase contract specifically calls out either of those limitations, neither of those propositions is true.”
  • “This article seeks to bust a common myth about an escrow deposit: That a seller must return the earnest money of a buyer he claims is in breach before selling the home to a second buyer.”

Thus, forfeiture of the buyer’s earnest money in the event of a clear default is not the default remedy — although many times the parties settle for that.  The Buyer has open-ended exposure for the seller’s damages arising from a breach.

Residential property litigation is rarely cost-effective

For a host of reasons (see this blog entry), litigation is typically not cost-effective, meaning that frequently the cost of litigation will exceed the recovery.  This is so because (a) litigation is so incredibly expensive, (b) the damages recovery available to a seller are both difficult to determine and many times lower than a seller might anticipate, and (c) the outcome of litigation is incredibly unpredictable.  I tell clients that many times they would be better taking their money to the casino and betting it than investing in litigation.

However, using the cudgel of threatened or actual litigation can  either help (a) force a buyer to close or (b) leverage a favorable settlement for the seller in the event of breach.

Practical solutions

In a typical arm’s length purchase contract in the greater Cincinnati marketplace, the buyer has an inspection and a financing contingency, and places a low ($1,000 or less) in escrow with the buyer’s broker at the time of contract signing that is refundable if the contingencies are not fulfilled.

But in today’s “Seller’s market,” there’s nothing to say that a seller cannot demand a better position in the purchase contract to address the “backing out” problem.

  • Get more earnest money.
  • Limit the contingency period so the time “off market” is reduced.  (When I am a seller, this is paramount to me.  Don’t waste my time if you are not serious.)
  • More due diligence on the buyers to “know” they are serious (are they prequalified?, are the planning to buy and flip?, do they have a house they themselves need to sell first before buying?, what is their background?).
  • Did the buyer actually look at the property before making an offer?  This is a sure sign of a buyer who intends to “make his decision” at a later date.
  • Deal only with serious agents and serious brokerages on the other side.  In my experience, buyers are going to find a broker who meets their profile.  Flaky agent, flaky company = flaky buyer.
  • Make earnest money non-refundable and even payable directly to the seller, not in escrow.
  • Have the home pre-inspected, and have the buyer use that inspection report, thus no contingency needed.
  • Sue to obtain actual damages or to intimidate a buyer into closing.

Conclusion

We have a problem of balancing the legitimate interests between (a) the seller not wanting unserious buyers tying up their property on the one hand, and (b) buyers legitimately needing to “kick the tires” before closing on the other hand.  This balance in a traditional purchase contract is heavily tilted to buyers to give them an open-ended opportunity to walk away during the contingency periods.  It doesn’t have to be that way.  Sellers can “tighten things up” in a purchase contract to tilt that equation more in their own direction.

Shoddy construction and late completion claims are “trending”

Author By Christopher P. FinneyPosted on

As lawyers experienced in Ohio real estate  law, we get  calls from existing and new clients nearly daily with the problem du  jour.  We have seen mortgage fraud, we have seen fraudulent deeds, we have seen predatory lenders, and we have seen home builders go bust.

The calls we are getting lately (other than complaints  about basements leaking from all the rain), seem to be centered on shoddy home renovation projects.

Why?

We are never certain why one set of calls prevails over another, and sometimes with a small firm such as ours, it is just the “luck of the draw.”

But we surmise that with the red-hot real estate market, plenty of rehabbers  have newly entered the marketplace, and plenty of them don’t have  an experienced corral of professional subcontractors —  carpenters, electricians, plumbers, HVAC contractors, roofers, etc. –to do the work.  Or contractors and subcontractors are simply over-committing.  As a result, deadlines are not being met, and quality is dropping as contractors farm out work to entirely inexperienced subs.

The problem

This leads to the problems that deadlines are being missed, the quality of work is shoddy, and followup on warranty and punch list items is slow or non-existent.

The dispute

As with everyone else performing services,  the contractor wants to be paid.  But if the work is late and sub-standard, how is a homeowner to respond?  If it’s non-payment, the contractor many times quickly resorts to filing a mechanics lien as the “check mate” of a construction dispute.

But a lien is not the  end of the story.  A lien is merely a claim or an assertion by the contractor of what he is owed, and the property  owner can successfully fight it if it not  well-grounded.  Now a lien can cause title problems, and thus foul up the construction loan disbursements for the remainder of the work.  But if the client has some financial flexibility, a lien problem can be worked around.

From our experience, the key to a contractor dispute is as much an accounting problem as it is a legal problem: What was the original price of the work, what were the agreed change orders, and what other adjustments are appropriate?

A poor foundation

As is discussed here and here, a construction contract can be either a fixed-price contract, a cost-plus contract, or a hybrid thereof.  If a contract is straight cost-plus with no controls built in, a home buyer or renovator could be in for a rude awakening at the time of financial reconciliation.  A fixed price contract, however, may many times only adjust  with a written change order.

But  even worse than cost escalators is a contract that has no clear “beginning point,” in other words it states that in exchange for “X” amount of money, the home owner will pay “Y” cost.  But if “X” is not clearly defined  — the product to the built for that fixed consideration — enforcement of the contract becomes a mish-mash of he-said, she-said allegation.  Simply imagine if you were the Judge  or a  Juror deciding how much money is owing when (a) the parties have failed to state at the outset what the builder was giving in exchange for the payment from t he buyer? (b) change orders were not properly agreed upon  and documented, but in some instances  asked for and performed? These tasks are incredibly difficult for a fact-finder and thus require tremendous factual development to properly present.

Conclusion

The summation of this problem is: First, don’t assume someone has industry knowledge and experience just because they hold themselves our as experienced and knowledgeable on  the internet  or otherwise.   Check references and inspect their prior projects.  Talk to their former customers about cleanliness of the worksite, quality of work, and timely perrformance.

Second, carefully document the contractual agreement  with the Contractor from the first day of  the project to  the last.  Third, continuously monitor the  contractor’s performance and don’t accept half-solutions and shoddy work.

If you want our help writing the contact, that is fine, but  certainly if you run into  contract  disputes, consult our experiences attorneys.  I suggest  Eli Kraft-Jacobs (513.797.2853) to help with your construction disputes.

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Ohio Employment Law: Does being salaried mean an employee is not entitled to overtime?

Author By Christopher P. FinneyPosted on

A common misconception about wage and hour law is that salaried employees are not eligible to receive overtime pay when they work more than 40 hours in a week. This is sometimes true, but not always.

Generally speaking, the law  divides employees into “exempt” and “non-exempt” employees. An “exempt” employee is an employee who is exempt from the overtime laws – meaning that employers normally are not required to pay them time and 1/2 when they work more than 40 hours in a week. In order to be considered “exempt,” an employee DOES have to receive a regular salary that – for the most part – does not vary based on the number of hours they work. But (and this is an important “but”) receiving a regular set salary is not the ONLY requirement in order for an employee to be considered “exempt” from the wage and hour laws.

In order to be considered “exempt,” an employee must be performing a certain kind of work that falls into one of the exemptions recognized by federal and/or state law. There are literally dozens of exemptions, but if an employee doesn’t fall into at least one of them, then he or she is entitled to be paid overtime regardless of whether or not he or she is “salaried.” The most common exemptions are for executives, professionals, administrative employees who exercise a great deal of discretion and independent judgment in their jobs, and outside salespeople.

The wage and hour laws are among the most complicated laws that govern the employment relationship. As a consequence, it is very common for employers to “miss-classify” an employee as being exempt when they are not. When an employer makes a classification mistake, it can be very expensive, as employees can recover not only their lost wages, but also additional damages and attorney’s fees from the employer who makes the classification mistake. This is also a field in which employers can be subject to hugely expensive “class action” lawsuits, filed on behalf of dozens, hundreds, or even thousands of employees.

When it comes to classifying employees as either “exempt” or “non-exempt,” it is literally true that “you can’t be too careful!” If you have any questions or concerns about these issues – as an employer or employee – be sure to consult with competent employment counsel.

Finney Law Firm Files Class Action Suit on Behalf of Retired Ohio Teachers

Author By Christopher P. FinneyPosted on

On May 23rd the Finney Law Firm filed a proposed class action lawsuit in Federal Court in Cincinnati on behalf of nearly 150,000 retired Ohio teachers.

The basis for the lawsuit is the 2017 decision of the Ohio State Teachers Retirement Board to eliminate the 2% cost-of-living increases that the retirees had been receiving under Ohio law. The lawsuit alleges that the Board eliminated these much needed cost-of-living adjustments – adjustments that the retirees had been promised, and were counting on – without proper legal authority, and without justification.

The caption of the suit, which has been assigned to Judge Susan Dlott, is “Dean Dennis and Robert Buerkle v. Ohio State Teachers Retirement Board.” We are asking the Court to certify the case as a class action on behalf of all Ohio teacher retirees.

Our clients worked for decades, for very modest compensation, doing one of the most important jobs in the world – educating Ohio’s children. Over the course of those decade of work, our clients had been repeatedly promised that, in their retirement years, they would receive annual cost of living adjustments that would at least allow them to keep pace with inflation.

We believe the State Teachers Retirement Board broke faith with Ohio’s retired teachers in 2017, when it abruptly and indefinitely eliminated their cost-of-living increases without due consideration, and without a valid legal basis for its action.

The perceived financial issues that the Board cited as the justification for eliminating these important benefits could have been more than adequately addressed in a variety of ways that would not have dealt such a devastating blow to our retired teachers. Instead, the Board chose to put 100% of the burden on the people who were most vulnerable, and who could least afford it. We do not believe this was necessary, just, or legal.

We hope this lawsuit will shine a light on the Board’s actions, and that it will lead to the restoration of the benefits Ohio’s retried teachers worked so hard to earn.

Our firm’s employment law department, Steve Imm and Matt Okiishi, are counsel on the case along with the firms of Goldenberg Schneider LPA, (with whom we successfully have prosecuted other class action cases) and Minnillo & Jenkins, Co., LPA.

For more information, contact Stephen E. Imm at 513-943-5678.

You may read the Complaint online here or below.

We will regularly update progress on this important case on this blog.

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Finney Law Firm successfully challenges Harbour Portfolio Advisors in land installment contract litigation

Author By Christopher P. FinneyPosted on

One of the many unfortunate outcomes of the subprime mortgage crisis has been that unscrupulous predatory investors scooped up broad portfolios of real estate at very low prices, and then re-sold them in troubled neighborhoods to unqualified buyers on land installment contract.

This had the dual effects of victimizing unknowledgeable and unqualified buyers and keeping many times unoccupied and dilapidated properties from re-entering the stream of commerce with qualified buyers.

One of those predatory investors has been Harbour Portfolio Advisors.  Their tactics have spawned a New York Times article on their predatory practices, a law suit from the City of Cincinnati that resulted in an injunction against their practices from Judge Robert Ruehlman (Hamilton County Case No. A1702044) and an ordinance with new land installment contract regulations from the City of Cincinnati.  It takes quite a track record to spur that kind of remedial activity.

The routine practiced by Harbour Portfolio appears to be:

  1. Selling the property to unknowledgeable and unqualified buyers on land installment contract,
  2. Receiving a down payment and some monthly payments from the buyers.
  3. Once one payment is missed, declaring the buyers in default and taking the property back.
  4. If the buyer is able to perform, refusing to cooperate in the conclusion of the sale, eventually forcing a default from the buyer, and moving back to Step #3.  (This is certainly what our client experienced)

Our firm recently represented a victim of Harbour Portfolio’s predatory practices, and obtained a judgment from Judge Jody Luebbers.  The result was that without further payment our client obtained clear title to the property, obtained a damages award from Harbour Portfolio, and also an award of his attorneys fees from Harbour Portfolio.

If you have been victimized by the unscrupulous tactics of Harbour Portfolio in Ohio or Kentucky or other predatory lenders or sellers, contact either Chris Finney (513-943-6655) or Julie Gugino (513-943-5669).

We are glad to “Make a Difference” in your property or lending dispute.

City of Cincinnati enacts new Land Installment Contract law

Author By Christopher P. FinneyPosted on

The City of Cincinnati has enacted a new series of restrictions on property owners selling under land installment contracts as Chapter 870 of the Cincinnati Municipal Code.

It appears to be a response to the questionable tactics of a single large investor who bought a significant number of properties in the subprime mortgage crisis, and then resold portions of the portfolio to unqualified buyers on land installment contract.  This investor/seller is Harbor Portfolio Advisors, against whom this firm has successfully litigated.  You may read more on that here.

The new ordinance provides:

  • Before selling a property on land installment contract, the vendor must first obtain a certificate of occupancy for the property (CMC 870-03).
  • The vendor must both deliver to the certificate of occupancy to the vendee and record the land contract within 20 days (CMC 870-04).
  • The vendor may not require the vendee to sign a quit claim deed to the vendor at the time of execution of the land installment contract (CMC 870-07(d)).
  • The name listed on the records of the Auditor is presumed to be the owner for purposes of enforcing the ordinance.
  • The remedies under the Ordinance include rescission of the land contract (meaning the vendee can get paid back to him sums paid thereunder), and actual damages, statutory damages of $5,000 per violation and the vendee’s attorneys fees incurred in pursuing his remedies under the ordinance.

For more information about enforcing your rights under the new land installment contract statute or suing Harbor Portfolio Advisors in Ohio or Kentucky, contact Chris Finney (513-943-6655) or Julie Gugino (513-943-5669).

Our prediction: Two decisions by SCOTUS next week will propel the “Compelled Speech” doctrine

Author By Christopher P. FinneyPosted on

Whether they planned it this way since (or even before) they granted certiorari to both Janus v. AFSCME and National Institute of Family and Life Advocates v. Becerra, or whether things just fell into place, two of the three the crowning decisions from the last week of the current term of the U.S. Supreme Court will deal with the important and still-evolving “compelled speech” doctrine under the First Amendment.  And we predict these two cases will be decided in such a way as to advance this doctrine as a bulwark against state and local governments compelling certain speech from private citizens and enterprises.

The compelled speech doctrine

The compelled speech doctrine is that legislators, regulators and other government actors cannot require an individual or group to engage in certain expression. We typically think of the First Amendment as limiting the government from punishing someone because of  his speech.  The compelled speech doctrine also prevents those same government officials from punishing someone for refusing to advance the government’s approved messages.

In West Virginia State Board of Education v. Barnette (1943) SCOTUS advanced the compelled speech doctrine by ruling that a state cannot force a child to stand, salute the flag, and recite the Pledge of Allegiance.  The Court allowed school children who are Jehovah’s Witnesses (for religious reasons) to refuse to participate in the district-required speech. From the decision:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

Just last decade, in  Rumsfeld v. Forum for Academic and Institutional Rights (2006), Chief Justice John G. Roberts Jr. stated the principle more directly:

Some of this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.

And this doctrine has been advanced in other cases, such as Wooley v. Maynard (1977) (state officials could not punish a man for covering the state’s motto — “Live Free or Die” — on his license plate) and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995) (government actors violated the rights of parade organizers by requiring that they include a gay rights group and its messages).

Notably as to the Janus decision (discussed below), the court addressed this issue in Abood v. Detroit Board of Education (1977).  However, because that decision did not go as far as the Janus petitioners seek, the Janus case (we predict) will overturn the Aboud precedent.  In Aboud, the Court allowed states to mandate public union membership, but split the dues between collective bargaining activities (compulsion OK) and political activities (compulsion forbidden).

Roberts Court loves the First Amendment

Then, as we have expressed previously, if the Roberts Court stands for anything, it is advancing First Amendment protections, including into areas not previously sacrosanct.  We expect the Janus and NIF&LA cases will continue that trend, but in these cases in the specific area of compelled speech.

Janus

The Janus decision is the third try recently to overturn the “halfway” decision in Abood. Again, in Abood, the Court ruled that the Plaintiff could be forced by the Detroit School District to pay a “fair share” or “agency” fee to the labor union for collective bargaining services, reasoning that not to do so would allow them to be a “free rider” for those services.   The Janus decision directly challenges that hair-splitting, arguing that compelling union membership is indeed compelling support of all of those things the union supports, including their position in contract negotiations, with which a member may disagree.

In 2014, the high court decided Harris v. Quinn, a curve-ball case of the State of Illinois compelling payment of union “agency fees” for collective bargaining by home health care workers who were not direct employees of the state, or in the words of the court “full-fledged public employees.”  The court ruled “no.”  In doing so, however, it did not directly overturn Abood, but Justice Scalia invited Abood challenges by stating in his opinion that it had been incorrectly-decided.

That invited the case of Friedrichs v. California Teachers Association in the 2015-16 term, which certainly would have extinguished the Abood precedent, except that Justice Scalia — who started the firestorm — died after oral argument but before the case could be decided.  The Friedrichs case, which appears to be indistinguishable from Janus, was thus decided 4-4 with the Scalia-short court, upholding the 9th District opinion that was consistent with Abood.

Thus, this coming week we expect that the compelled speech doctrine will get a substantial shot in the arm, albeit by a 5-4 vote, by the Supreme Court in its Janus decision broadly preventing government actors from negotiating union contracts that compel union membership or union dues as a condition employment.

National Institute of Family and Life Advocates v. Becerra

And that brings us to NIF&LA v. Becerra which seeks to invalidate a California law requiring pro-life counseling centers that counsel against abortion (“crisis pregnancy centers”) to to provide patients with specific kinds of information, including, for some, the availability of low-cost or free abortions.

We believe the Court will again advance the compelled speech doctrine by striking the California law.

(This will then raise the further question about pro-life state legislatures who require abortion clinics to provide certain information to patients arguably advancing an anti-abortion message.)

So, a big week is expected for the First Amendment and the Compelled Speech doctrine

Thus, it appears to me that the Supreme Court has written the theme for the last week of the Court term by joining the timing of announcing these decisions (if not the decisions themselves)  for the same day or week.

Crescendoing the 2017-2018 term with these two decisions, the Roberts Court will firmly boost the compelled speech doctrine.

Ohio Employment Law: Stephen E. Imm addresses sexual harassment before Empower U April 10

Author By Christopher P. FinneyPosted on

Ohio employment law attorney addresses the #MeToo movement and the issue of sexual harassment in the workplace next Tuesday, April 10 at 7 PM before Empower U at the Empower U studio at 225 Northland Blvd., Cincinnati, OH 45246.

Here is the Empower U summary of the course:

Harvey Weinstein . . . Al Franken . . . .Kevin Spacey . . . Aziz Ansari . . . .Louis CK . . . . Garrison Keillor . . . the #MeToo Movement . . . These stories and countless others like them have caused an enormous change in how sexual harassment is viewed in America, and how it is addressed by employers and employees. What can the rest of us learn from Hollywood’s Harassment Problem?
This course is literally as timely as today’s headlines! We will be discussing in detail the implications of the recent explosion in sexual harassment allegations against prominent celebrities, businessmen, politicians, and judges – yes, Judges. Attendees will learn what each of us can do to make sure that we and our companies are not in the news ourselves – six weeks, six months, or six years from now. Among the specific topics we will analyze and discuss are:

How can an employer best protect itself from sexual harassment claims in the Harvey Weinstein era?

What are the implications of the #MeToo movement for the modern workplace?

What is “sexual harassment”? What does that term actually mean in the law, as opposed to what it means in ordinary conversation?

When is a company or employer legally responsible or liable for sexual harassment committed by one of its employees?

How does the term “hostile work environment” relate to sexual harassment?

What differences exist between sexual harassment committed by a supervisor or manager, and harassment committed by a lower-level employee?

Can an employer be held legally responsible or liable for sexual harassment committed against one of its employees by an individual who is NOT an employee of the Company?

What written policies should an employer have in place regarding sexual harassment, and how should those policies be communicated to its employees?

What does a proper internal investigation of a sexual harassment complaint look like?

How is sexual harassment analyzed when the alleged harassment involves people of the same sex?

The course is free.  You can register through this link.  You can watch virtually by logging into this site after 6:50 PM.

Thanks for Steve Imm and to Empower U for bringing this important course.

New ordinance proposes to regulate Cincinnati Air BNBs

Author By Christopher P. FinneyPosted on

Fox19 is reporting today that the City of Cincinnati is considering legislation to regulate Air BNB rental units in the City of Cincinnati.  Features of the proposed ordinance:

  • it would regulate short term rentals of entire dwelling units for periods of 30 days or less at a time.
  • Rentals for each unit would be limited to 90 days out of any calendar year.
  • Unit owners would have to license each unit and renew the license every year.
  • Unit owners would have to submit to annual zoning, building, safety, and housing code inspections.
  • Unit owners would have to have liability insurance on the property,
  • Unit owners would be required to pay taxes on the rental income, including a transient occupancy tax.

The purposes for the ordinance  from the Fox19 are:

  • to reduce the negative impact of short term rentals
  • to protect residential tenants who otherwise would be evicted to allow for conversion of their  units for AirBNB occupants
  • to keep AirBNB renters safer.

Read the Fox19 article here.

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