The Cincinnati-area adult continuing eduction series “Empower U” is presenting this Thursday night “Property Tax Valuation Reduction” by Chris Finney.

The Finney Law Firm has handled hundreds of property tax valuation complaints in Ohio and Kentucky in the past two years.  This course instructs home and business owners how they can — on their own — lower their property taxes.

The course is this Thursday night, March 3, at 7 PM at the Empower U Studio at 225 Northland Blvd.  You may RSVP here.  Also, the course will be a “virtual seminar” that you can watch on line.   Just click here after 6:50 PM on the night of the class.

The Empower U link for the announcement is here.

On Wednesday, the 6th Circuit Court of Appeals upheld the decision of Federal District Court Judge Timothy Black to strike down Ohio’s “False Statements” statute as a violation of the First and Fourteenth Amendments to the United States Constitution.  The decision in  Susan B. Anthony List v. Ohio Elections Commission is here.  The Finney Law Firm represented in this litigation the Coalition Opposed to Additional Spending and Taxes (COAST), which had joined the litigation as an intervening Plaintiff.

The litigation commenced in 2010 when the Susan B. Anthony List put out press releases and attempted to erect billboards that explained that Congressman’s Steve Driehaus’ vote for the ObamaCare legislation was a vote for taxpayer funding of abortions.  Driehaus filed a “False Statements” complaint on the pronouncements before the Ohio Elections Commission.  Susan B. Anthony List sued, claiming the statute violated its free speech rights under the U.S. Constitution.  COAST intervened in the litigation claiming that it, too, desired to make these same statements but was “chilled” by the threat of administrative and criminal prosecution.

Under Ohio’s statutory scheme, anyone can bring before the Ohio Elections Commission a claim that someone uttered a “false statement” in the course of an election campaign, intending to impact the outcome of the election.  Then, the panel had to first decide if there was “probable cause” that the utterance violated the statute.  Discovery would ensue, and then a trial would be held to ascertain if the statement was knowingly false of reckless — in the judgment of three Republicans, three Democrats and an independent.  If so, they would make a public finding of falsehood, and could refer the matter for further criminal prosecution.

The problems, of course, with this process, include that (i) it places the judgment of campaign falsehood in the hands of highly political, non-attorney, non-judicial political appointees who fail to understand the breath of First Amendment protections, (ii) it becomes a cudgel in the hands of political opponents, and (iii) therefore has the effect of suppressing entirely truthful speech for fear of a protracted and expense

Over the decades that Ohio’s False Statements statute was in effect, there have been many attempts to challenge the constitutionality of the law, but the 6th Circuit previously had ruled that a very similar statute was constitutional.  Further, each new attempt to challenge the statute was rebuffed by trial courts and the appeals court as lacking “standing” to challenge the law.

In April of 2014, the Finney Law Firm went to the United States Supreme Court on that “standing” issue and prevailed 9-0 in a Clarence Thomas-authored opinion.  That decision is here.  That case was unique for many reasons, not the least of which was the varied amicus briefs the litigation attracted, including one from Ohio Attorney General Mike DeWine attacking the law, although he is the attorney charged under Ohio’s Constitution with defending it.  That June 2014 “victory” merely placed the decision back before the trial court.  In September of that year, Judge Timothy Black ruled in favor of Plaintiffs and permanently enjoined the statute.

Wednesday’s 6th Circuit ruling upheld that decision of Judge Black.

The Ohio Elections Commission can now either accept the 6th Circuit’s ruling, or can elect to ask all 15 judges on the 6th Circuit to review the ruling en banc or appeal that ruling to the United States Supreme Court.  In oral argument and a prior ruling in United States v. Alvarez and at oral argument in the Susan B. Anthony List case, both liberal and conservative members of the Court indicated that they thought statutes like Ohio’s are unconstitutional.  Further, the High Court accepts fewer than 1% of all cases presented to it.  Thus, this should be the “end of the line” for prosecution under Ohio’s False Statements statutes.

Finally, Finney Law Firm is currently prosecuting three cases in this vein: (i) the Susan B. Anthony List case, (ii) COAST v. Ohio Elections Commission (known as the “tweets” case that is pending before the 6th Circuit), and (iii) Magda v. Ohio Election Commission that is pending before the 10th District Ohio Court of Appeals in Columbus.  Wednesday’s victory should seal the fate in the other two cases as well.

In all, Wednesday was a good day for free speech in Ohio.

Media coverage of this decision is linked below:

Professor Volokh/Washington Post: Court strikes down Ohio ban on knowing or reckless falsehoods …

Cleveland Plain Dealer: Ohio politicians can legally lie in campaign ads, appeals court says

Columbus Dispatch: Appeals court strikes down ban on campaign lying

AP: Court axes law banning campaign lies

ABA Journal: Appeals court strikes down Ohio laws banning political lies

 

 

Real Estate Contracts You Will Encounter During a Home Sale or Purchase

Real Estate Contracts You Will Encounter During a Home Sale or Purchase

Definitions used in this article:

Implied Contract: A contract created by actions of the parties involved and is not always in writing.  Courts usually look for a meeting of the minds to determine if an implied contract exists.

Explicit Contract: A contract created by a written document which is signed by all parties involved with the contract.

When buying or selling a home you will come across a number of different contracts that you will sign as part of the process. You may be wondering what all these contracts are and how do they impact you. This post provides a general explanation for the various contracts used in a real estate transaction and the functions they read the fine print in real estate contractsserve in the transaction process.

Buyer Representation Agreement

A Buyer Representation Agreement is an agreement between the home buyer and a real estate agent. The agreement generally states that the real estate agent will get a commission by helping the buyer find a home and assisting in the process of buying the home. The assistance aspects include taking the buyers to homes they want to see or suggesting homes for them to see; preparing the offer in accordance with the buyer instructions; negotiating on the buyers behalf with regards to any matter related to the home purchase; guiding the buyer along the home purchase process and more.

This type of contract should be in writing (explicit contract) to have maximum effect. Sometimes these agreements will also state that the real estate agent is due a commission regardless of whether or not the buyer uses the agent’s services or showed them a particular home. Some agreements may only require the payment of a commission if the real estate agent is the procuring cause of the sale (i.e. the agent showed a particular home to the buyers).

Sometimes a real estate agent may forgo having their buyer sign this type of document in order to not make the buyers feel pressured. Those agents may be proceeding under the assumption that they are under an implied contract with their buyers.  If the buyer who has not signed any agreement happens to purchase a home without the help of their real estate agent or another agent happens to put in an offer for the buyer, the agent may not be entitled to a commission. Whether the agent will get a commission will depend if it can be shown that they are the procuring cause and whether or not their broker will pursue a lawsuit to get the commission.

Seller Representation Agreement

A Seller Representation Agreement is an agreement between a real estate agent and a home seller for the purpose of listing the seller’s home on the market for sale. Generally most real estate brokers want these agreements to be explicit contracts signed by both the seller and the agent representing the broker so as to avoid any confusion as to duties and rights. Many states have laws governing the marketing of real estate by licensed real estate agents and usually do have other forms for the sellers to review and sign in order to indicate their understanding of how the real estate agent they have hired will work when it comes to representing them and other buyers and sellers.

The seller representation agreement usually has a start date, end date, terms regarding what will go and what will stay with the property, language regarding use of advertising signs, forms of advertising (internet), home warranty information and more. It should be noted that while the seller representation agreement may state what items will stay with the home after closing that agreement is not binding upon the seller and buyer since it is only an agreement between the seller and the real estate broker. If a buyer wants certain things to stay with the home those items should be specifically mentioned in the Offer to Purchase contract document talked about below.

Buyer Offer To Purchase

The buyer’s offer to purchase represents merely an offer until it is accepted in writing by the seller. Any counter offer by the seller represents a new offer. If the buyer rejects the seller counter offer the seller cannot go back and decide to accept the offer that was first presented unless the buyer agrees to it. While an offer to purchase or counter offer can be made verbally (implied contract) in order for the offer to be legally enforceable in court it must be in writing (explicit contract) in accordance with the Statute of Frauds. Anything not captured in writing will not be enforced in a court of law. Therefore if there is something from the house (movable kitchen island, curtains or other non-fixed window treatments etc.) that you would like to stay with the home it is best to make sure that item is specifically written in to your offer to purchase.

Generally earnest money is not a requirement of an offer to purchase residential real estate. Earnest money is used to show a good faith desire to enter into a purchase agreement but is not required by law. Earnest money is usually credited towards the buyer upon closing. The earnest money will be returned if the seller and the buyer are unable to come to agreement on an offer. If the seller or the buyer call off the offer to purchase due to some disagreement then usually any claim to the earnest money must be released by the seller in writing before the money can be returned to the buyer. If a seller refuses to release their claim to the money then the parties must go to court to have a judge decide who is entitled to the earnest money.

Just because either the buyer or the seller state they want to back out of the deal does not mean they can back out of the deal without both parties agreeing to cancel the Offer to Purchase. If one of the requirements (contingencies) of the offer of the offer is not met then the offer can be cancelled without consequence to either party. Contingencies such as financing, home inspection, selling another home first are some common contingencies found offers to purchase. If the buyer or seller wants to back out of the purchase offer for the simple fact they changed their mind they could be sued by the other side for breach of contract.

Mortgage Document

When money is borrowed to purchase a home the mortgage document represents an explicit contract between the borrower and the lender. The mortgage document will set out the terms of the payments, due dates, late payment penalties, assignment provisions (the ability to sell the loan to another company) and more. While there are many consumer protection laws designed to keep borrowers from signing documents with illegal or unethical use a professional when dealing with real estate contractsprovisions one should still review the document and understand what is being signed since the commitment is a long term one.

Other Explicit Contracts in Real Estate

Home Warranty:

With a home warranty the buyer or the seller can purchase warranty coverage on the major systems of the house like water heater, HVAC, appliances, etc. Usually the warranty coverage is provided for a one year period and can be renewed yearly. The home warranty company will require the warranty agreement be signed by the person paying for the warranty. Always make sure to read the warranty document to know what is and what is not covered under the policy.

Title Insurance Policy:

The title insurance policy covers the lender and the buyer (if the buyer purchases a policy for themselves) in case there are hidden title defects on the property. In order to set out the terms of coverage for the insurance policy everything is put into writing and is signed by those seeking the coverage. For more information on Title Insurance check out the title insurance section at Ivy Pointe Title.

Other Implied Contracts

Implied contracts during the real estate process can include services provided by a company or individual with the promise of payment upon completion of the work. For instance a cleaning company, home inspector, home stager may agree to do work in your home in exchange for payment after completion. Due to the smaller amounts of money involved both parties agree to do the work without any written contract.

A common example of an implied contract is when you contact a cleaning company and ask them to clean your home prior to your putting it on the market for sale. A cleaning company may agree to perform the work with an unwritten implied promise to pay them for the work after they are done. If the home seller refuses to pay the cleaning company after the work has been done the cleaning company can sue the homeowner in small claims court and attempt to recover the money owed.  The court will look at if there is a written contract (whether language via email or text message) or will look towards what the parties actually said and/or did and make a decision on whether a contract does exist.

Final Thoughts

Many real estate contracts can be confusing with all the legalese in them. If you have any questions or are unsure about terms of a particular requirement in a contract you should ask the person presenting you the contract to explain the language to you. If the answer does not resolve your questions or concerns then you need to find outside expert help from a real estate attorney. It is better to walk away from a contract than to sign something that will bind you to terms or requirements you never intended to.

Do you have a real estate contract you have questions about?

Paul Sian is a licensed attorney in the States of Ohio and Michigan.  If you have any questions about a real estate contract you are being asked to sign feel free to contact me at [email protected] or via phone at 513-943-5668.  Feel free to connect with me on Twitter and Facebook.

 

Real EstateAccording to the National Association of Realtors, all parties engaged in real estate transactions should be cautious of emails requesting wired funds.  Recent trends show that real estate transactions have increasingly become the target of a sophisticated phishing scam, commonly known as “spear phishing.”

The hackers break into email accounts seeking information about current or upcoming real estate transactions – looking for names and identifiable information of sellers, agents, buyers, title companies, or attorneys.  The hackers then use this information, while posing as a party to the transaction, to request a wired funds deposit into their account.  Sometimes the hackers will use an email address that is different from the sellers email address by one letter, which goes unnoticed by the buyer.  The victim, believing the wired funds deposit is for closing, unsuspectingly transfers the funds and the hacker makes off with money.

Many people are lured into a false sense of security that hackers only go after large companies, like Sony, Target, Home Depot, and eBay.  However, small businesses and home buyers are much more susceptible to “spear phishing” because they lack the sophistication, technology, and legal assets to prevent such attacks.

“Spear phishing” involving wired funds in real transactions has occurred in numerous states and defrauded large sums of money from its victims.  According to an article by Sam Silverstein in Realtor®Mag, multiple incidents of fraud were reported in North Carolina, including an incident involving a $200,000 loss.  A separate article by Rose Meily in the San Jose Mercury News mentions a first time buyer losing $13,000.00 to a spear phishing scam.

However, there are ways to prevent or guard against spear phishing.  Here are some recommendations:

  • remain vigilant to suspicious activity during a real estate transaction
  • always call to verify all the information before a wired transfer
  • develop a face-to-face relationship and/or voice contact with parties involved
  • exchange and verify contact information of parties involved
  • maintain communication with parties involved
  • maintain strong email passwords
  • change email passwords
  • use two-step verification for emails
  • encrypt emails and documents
  • clean out email accounts
  • use data security programs and anti-virus software

Let our real estate team “make a difference” for you in your real estate transactions.  Contact Dylan Sizemore (513-943-6659) or Isaac Heintz (513-943-6654) to assist in your real estate needs.

The Finney Law Firm is pleased to announce the addition of three new attorneys to our transactional practice group, focusing on real estate, estate planning and corporate law:

 

FLF_DylanSizemore_5x7_lowW. Z. “Dylan” Sizemore
Dylan is a 2014 graduate of the University of Cincinnati College of Law, where he was awarded the Tyler Short Award for Entrepreneurial Excellence.

He earned his bachelor’s degree from the University of Kentucky, Summa Cum Laude. Dylan is an Iraq War Veteran, having served as Company Commander and platoon leader. Dylan’s practice will focus on real estate and corporate law.  Read more >

 

FLF_JulieMGugino_lowJulie M. Gugino
Julie is a 2001 cum laude graduate of Salmon P. Chase College of Law and a 1995 graduate of the University of Cincinnati, Summa Cum Laude.

Julie has extensive experience in all three practice areas of our firm, transactions, litigation and public interest litigation.  Julie re-joins our team after seven years apart. Julie’s practice will focus on real estate and real estate-based litigation.  Read more >

 

FLF_PaulSian_5x7_lowPaul S. Sian
Paul is a 1997 graduate of the University of Detroit School of Law and earned his MBA from Wayne State University in 2001.

Paul previously worked as a tax law specialist for the IRS and as a Claims Judge Advocate for the U.S. Army Reserve.  He is licensed in Ohio and Michigan. Paul has joined the firm “of counsel” and his practice will focus on real estate and estate planning law. Read more >

 

We are pleased to expand the services we provide with these three new professionals.  Let us know how we can help you seize a business opportunity or unravel a litigation knot.

Finney Law Firm (“FLF”) is hiring for a litigation paralegal position based in its Eastgate office. The position will work closely with FLF attorneys during all phases of the litigation process, from client retention and case initiation through trial, post-trial, and appeals.

Essential job functions:

  • Assist attorneys with case related and new client calls
  • Maintain calendar of deadlines, hearings, depositions, and other case related appointments
  • Organize and maintain case documents
  • Assist attorneys with case law and local rule research
  • Assist attorneys with preparation, filing, and service of various case pleadings upon opposing parties
  • Assist attorneys with the gathering and preparation of documents for deposition and trial

In order to provide top-level attorney support and client services, the following are also required job functions:

  • Assist in answering of firm calls and routing of same to appropriate persons of the firm
  • Assist in greeting firm guests upon arrival
  • Work with attorneys and the firm’s accounting department on new matter set up and invoicing
  • Assist the Director of Administration with operational needs as requested

Position Qualifications:

  • Possession of a Bachelor’s degree (or paralegal certification) and at least 2 years of paralegal experience
  • Proven organizational skills
  • Excellent attention to detail
  • Proficient in Microsoft Office products and Westlaw
  • Ability to communicate and interact professionally with attorneys, clients, court representatives, and other interested parties

Interested applicants may submit their cover letter and resume to Anna Ausman at [email protected].

This article from the National Association of Realtors explores some of the means by which cybercrime is hitting real estate transactions.

Finney Law Firm, LLC and Ivy Pointe Title, LLC are equipped with the latest technology, tools and standards required by the CFPB to assure secure transactions, but…you can never be too careful.

Read and implement these NAR tips to make sure you and your clients and customers are not victims!

Realtors have amazing new tools at their fingertips almost daily with emerging web sites and smart phone apps.  Still, we are impressed with the new web site and mobile app of the Hamilton County Auditor.

HamiltonCountyAuditor.org  has a smart new interface and valuable tools for Realtors, including:

  • Property search, which quickly allows you to access property description, auditor’s valuation, tax information and sales history.
  • Detailed instructions for property valuation complaints.
  • On-line forms such as the CAUV form, rental registration form, and a Homestead exemption form.
  • A calculator that estimates the impact of upcoming tax levies on your property’s taxes.
  • Streetview photos and aerial/CAGIS imaging of the property.

Dusty Rhodes also has a nifty mobile phone app available both for I-Phones and Android phones that allows for limited information under the property search function such as Auditor’s valuation, sales history and streetview and aerial images of the property.

We recommend that every Realtor, commercial and residential, load the mobile app to their phone.  It is a powerful tool.

 

We are proud to act as local counsel in the case Nor Cal. Tea Party v. IRS before Judge Susan J. Dlott.  We write here that last month Judge Dlott certified the matter as a class action, an important development in a very important piece of litigation.

Here, Forbes Magazine’s Peter J. Reilly writes on the litigation.  He takes a decidedly conspiratorial and liberal bent against the Plaintiffs in the matter, alleging dark money connections and “weaponization of non-profits,” a new favorite accusation from left-leaning pundits.

He concludes:

At least for the upcoming election cycle, they have pretty well defanged the IRS, but it may be that this litigation is meant to be part of stomping on it and grinding it into the dust.