Today’s Cincinnati Enquirer features this story on an outstanding settlement attained for our client against the City of Cincinnati for construction defects in row of homes in Walnut Hills that it renovated and sold to homeowners.
NOTE: the deadline to file a claim is April 13th. Please act quickly.
The Duke Energy class action settlement has generated a record amount of traffic on our firm’s web site. That’s a good thing, because virtually every residential and commercial customer of Duke Energy in southwest Ohio that owned property from January 1, 2005 to December 31, 2008 is entitled to a refund, in some cases a significant one
We have had a few questions from clients about the settlement. We checked and got you the answers:
- If I owned a property during the relevant time period, but have since sold it, may I still file a claim? Yes.
- If I can’t recall the addresses of all of the properties I owned during the claim period (we have, for example, home builder clients with multiple, rotating model homes), can I file a claim for those? The class action attorneys are looking into this further for us, but probably not. The claims process requires the name of the property owner and the identity of the property in question.
If you want to file a claim, log in here and follow the instructions. It only takes a few minutes.
The deadline to file is fast approaching: April 13th.
All residential and commercial users of electric generation service from Duke Energy Corp. and/or Cinergy Corp. from January 1, 2005 to December 31, 2008 are eligible for a rebate under a class action effectuated in the case Williams v. Duke Energy. For residential users, the rebate will range from $40 to $400. For commercial users the rebate is unlimited in size.
As described to me by one of the attorneys for the Plaintiffs, the settlement — nearly $81 million in all — means “real money,” especially for larger commercial users. Your business should not miss this opportunity, and it is even worthwhile for residential users to avail themselves of this windfall.
- However, in order to obtain a refund, consumers must complete and submit a form on-line or on paper by April 13, 2016.
The on-line form is quick and simple. It should take fewer than five minutes to complete. We strongly recommend that all of our eligible clients log onto http://dukeclassaction.com and complete the form. I just did it for my own residence, and it was super-quick and super-simple.
10 Things Finney Law Firm Can Do For You
Often times when people think of attorneys they think of lawsuits or criminal charges and as a result that is why they need an attorney. While attorneys are needed to help you deal with lawsuits and criminal matters that is not the end of the list of what an attorney can help you with. To help you get a better idea of how an attorney can help you I have compiled this list of 10 things that Finney Law Firm can do for you. While this list is by no means an all-inclusive list it is designed to show you areas where Finney Law Firm has the expertise to help you work through a matter and save you money or save you from legal headaches in the future.
1. Real Estate Matters
In many states in the U.S. (Ohio and Kentucky are no exceptions) attorneys are involved in many of the steps of the real estate buying and selling transaction. Often times attorneys are involved behind the scenes in reviewing contracts, legal documents, preparing title opinions and more. In certain states attorney have more hands on involvement in that any closing involving real estate is done by an attorney or under their direct supervision.
Finney Law Firm attorneys can assist individual buyers and sellers in the buying and selling process for both residential and commercial properties. As a real estate buyer you can ask an attorney to look over your offer to purchase a home to make sure it represents your best interests. Sellers may also want to hire an attorney to review any purchase offers and explain to them the requirements they will be bound by if they accept that offer. Some land purchases involve more complicated matters like mineral rights, multiple pieces of land being sold in one package, or liens by having an attorney represent 
you gives you get extra protection by having the legal considerations addressed by someone trained in those matters.
2. Business Planning
Are you planning on starting a new business, incorporating an existing business, or changing the corporate structure (i.e. going from an S Corporation to a C Corporation) of your current business? Many activities related to business planning should have an attorney involved in order to make sure everything is done properly. Changing your business status from a sole proprietor to a Limited Liability Company or a corporate form without doing the proper paperwork for taxes will leave you at risk with the federal and local tax authorities. While you may have unintentionally not filed some of the proper tax paperwork that will not stop any associated penalties. By working with a Finney Law Firm attorney you can be assured all your paperwork will be properly prepared and you will be fully informed as to what each document means to you in your business.
By working with an attorney to properly prepare your paperwork you have someone who is familiar with your business and will be ready, willing and able to help you should the need arise. While you can go hire an attorney at a moment’s notice to help out with legal issues, that attorney will not be as familiar with your business as one who has been working with you on an ongoing basis. For more information on the LLC form of a business see LLC see the article Why Do You Need An LLC.
3. Family Planning/Estate Planning
Marriage
Planning on getting married soon? Do you and your spouse have assets you want to keep separate in case of divorce? While the love and bliss of courtship lead you to think the relationship will last forever things and people do change. If you or your significant other own part of a family business, own your own business, have a large sum of assets from inheritance or from earnings then it is advisable to get a pre-nuptial agreement prior to getting married. A pre-nuptial agreement is a document that can protect assets for both of the people about to be married. Unless properly prepared by an 
attorney and taking into account all assets a pre-nuptial agreement may not be worth much in the event of divorce. Therefore pre-marital planning should involve an attorney and the couple about to be wed. In many cases it may be best for each person to have their own attorney look over the pre-nuptial agreement to represent each person’s best interests.
Family
Now if you are married and have kids there are other considerations to take into account. Those considerations mostly revolve around making sure your children and/or spouse are taken care of in the event of your passing. This is where sitting down with an estate planning attorney comes into play. An estate planning attorney will sit down with you and review your assets and your goals for your assets in case of death. This could involve setting up trusts for your spouse and/or children, guardianship arrangements for minor children, living wills, health care power of attorneys and more.
Depending on the amount of assets you have to give to your family and how you want to distribute those assets a trust may be a better option for you. A trust not only preserves your assets for your children it can also make sure you children still get their inheritance in the event your spouse later remarries. Inheritance can get quite complicated so it is best to talk with an estate planning attorney to make sure your assets are distributed the way you want them to be. For more information on wills and guardianship see my article How a Will and Trust Factor Into Your Estate Planning.
4. Legal Document/Contract Review
Have you been suddenly presented with a legal document with request for signature? Do you know what the document is meant to do and how you may be legally bound if you sign the document? If you don’t know what the language is saying or how it will impact if you sign it then by all means you should be speaking with an attorney to have them look over the document and explain to you what exactly is being asked of you. Common examples of legal documents you may be signing throughout your life include documents related to the purchase and sale of real estate, purchase or sale of a business, non-disclosure agreements for work or other purposes, waiver or release of liability paperwork, settlement documents and more.
Signing any legal document without having full understanding of what sort of obligations you may face is asking for trouble. While the language may not talk in dollars and cents terms you could end up owing plenty of money if you signed a legal document and then failed to do what was required of you under the terms of the document. An attorney will be able to review your legal document 
and give you an opinion on what it is asking for and what risks you face in signing the document. Don’t sign just because the person giving it to you says it is ok, get another opinion before it is too late.
5. Labor and Employment Law
Do you run a business where you are responsible for the hiring and firing of employees? Want to make sure any terminations or hiring are done correctly and there is minimal risk of you being sued for discrimination? Or maybe you are wanting to setup health plans or retirement plans for your employees and unsure of the way to go about setting up those plans?
If you answered yes to any of the above questions then you should be talking with a labor and employment law attorney who can prevent you from taking the wrong moves which end up costing you money and more. Having an effective attorney advocate at your side assures you that you can concentrate on working on your business while any legal issues are promptly dealt with for you.
6. Bankruptcy
Unsure if you can manage paying off your debts? Afraid of losing your house because you are behind on payments? Worried that your debts are impacting your health due to the constant stress? Or maybe health related expenses have hurt you financially. All of the above situations can be resolved through filing for bankruptcy. You will not know if bankruptcy is suitable for your situation until you sit down and discuss your situation with a bankruptcy attorney and learn about what filing for bankruptcy means.
In bankruptcy you are asking a bankruptcy court to set aside your debts under Chapter 7 (not all debts may be discharged) or to reorganize your debts into a more manageable payment plan under Chapter 13. Determining which Chapter will work best for you is a decision to be made in conjunction with a bankruptcy attorney. 
Businesses as well as individuals are eligible to apply for bankruptcy when they are unable to pay their debts.
7. Taxes, Taxes and more Taxes
Unaware of what taxes your need to pay for your business? Want to pay less to the Tax Man and let your family inherit more? Own a piece of property that you think you are paying too much taxes for? All of the above are matters that can be addressed by an experienced attorney at Finney Law Firm.
Business planning involves dealing with tax matters and understanding all the tax jurisdictions involved. Not only do you have to consider federal and state taxes but there are also the city, municipality, and possibly county taxes to take into account. Miss any payments to one of these tax collecting entities and your business will be at risk. By sitting down and discussing with an attorney what your business does and where it will be performing its business your attorney can better advise you as to what taxes you need to make sure are paid.
Property tax is another big issue for both residential and commercial land owners. Property tax collectors sometimes base their tax collection rates on the overall health of the real estate market in a region as opposed to your specific piece of land. Maybe you have change in situation that has lowered the value of your property but your property taxes still remain where they were before. An attorney will be able to look at your particular situation and then prepare the proper paperwork to request that your property valuation be looked at in order to get a possible downward adjustment in value thus reducing your property tax payment.
As mentioned in item 3 above a will can help you take care of your family in the event of your passing. Wills along with trusts can also shield your assets from estate taxes that can be charged to your estate. Also known as the “Death Tax”, this tax on your wealth can be minimized depending on the amount of wealth and how you deal with it now. As each individual has their own unique asset situation a consultation with an Estate Planning attorney will help you best decide how much of your assets get caught up in the “Death Tax”.
8. Litigation
When faced with litigation the last thing you want to do is ignore any requests for information nor do you want to provide answers without the guidance of an attorney in order to save money on legal bills. The answers and the way you answer pre-litigation questions (depositions and/or interrogatories) can make or break a case for you. Therefore it is in your best interest to answer these questions with an attorney present so they can stop you from answering questions you should not be answering. By having an attorney represent you in litigation from the beginning you are bringing along a valuable partner who not only will have knowledge of your case but also have the skills to defend you in a court of law. If an attorney has to be brought in later to a litigation matter it will usually be the case that they will have to spend more time in order to become fully informed of the situation which will cost you more than if you had hired an attorney at the start.
Whether you are being sued for something your business did, something an employee of yours did or you are suing someone who injured you the attorneys at Finney Law Firm have a great depth of 
background and litigation experience to assist you in your litigation matter. Finney Law Firm has successfully litigated cases related to caregiver abuse of children, business transactions, personal injury cases, failure to disclose in residential and commercial real estate matters, contract disputes and more. Finney Law Firm has won a number of cases that have went before the U.S. Supreme Court.
9. Personal Injury
If you have been injured by someone or someplace where the situation was preventable you may want to discuss your injuries with an attorney. Especially where you have suffered losses due to being unable to go to work, out of pocket medical bills, or other pain and suffering you may be able to be compensated for those losses. A lot of this depends on how the injury occurred and whether or not someone’s negligence leads to your injury. By talking with an attorney you get a better idea of where you stand if you do wish to seek recovery for your injuries.
10. Criminal Matters
Are you being charged with a crime? Whether that crime is driving while under the influence (DUI), reckless driving, theft or something else having an attorney represent you for the criminal trial is your right. In order to determine the severity of the charges and the amount of jail time or fines you can face you need to speak with an attorney as soon as you are able to. Facing a criminal charge is not 
something you should try and handle on your own as those who will be prosecuting you are professionally trained. By having a knowledgeable and experienced attorney like those found at Finney Law Firm on your side you can be assured you will be getting the best representation possible.
Do you have any questions about the services above?
Paul Sian is a licensed attorney in the States of Ohio and Michigan. If you feel you need the services of an attorney or have questions about any of the services named above feel free to contact me at [email protected] or via phone at 513-943-5668. Connect with me on Twitter and Facebook.
We hear a lot of misinformation from prospective sellers and Realtors on when a Residential Property Disclosure Form must be used in Ohio:
- “I’ve never lived in the house, and thus I am exempt from filling out the form.”
- “I’m just an investor. I don’t have to complete the form.”
Neither of these statements is true, so let’s bust these myths and in the process really dig into why a residential property disclosure form is “required” and when it is “required.”
What is the “requirement”?
As an opening proposition, Ohio law does not actually require the use of the Residential Property Disclosure statement. And by this I mean that no one is going to go to jail for failure to use the form, and the civil consequences are generally limited to termination of the contract before closing, if any.
The law in question is Ohio Revised Code Section 5302.30. It is indeed entitled “Property disclosure form required for all residential real estate transfers.” But when reading the statute it becomes apparent that the penalty for non compliance is: rescission of the contract, but only prior to the earlier of thirty days after the contract is signed or the date of closing (ORC § 5302.30 (K)(4)):
If a transferee of residential real property subject to this section does not receive a property disclosure form from the transferor after the transferee has submitted to the transferor or the transferor’s agent or subagent a transfer offer and has entered into a transfer agreement with respect to the property, the transferee may rescind the transfer agreement in a written, signed, and dated document that is delivered to the transferor or the transferor’s agent or subagent in accordance with division (K)(4) of this section without incurring any legal liability to the transferor because of the rescission, including, but not limited to, a civil action for specific performance of the transfer agreement.
Ohio Revised Code §5302.30 (K)(2) also provides for rescission if the seller amends the Residential Property Disclosure Form after the contract is signed.
It is always advisable to disclose
Before we get to the question of whether Ohio law requires disclosure, there is another question of whether disclosure is advisable. The answer is almost always “of course.”
The basis of property defects fraud claims is either (a) a material misrepresentation as to a known defect (i.e., lying about the basement leaking or the presence of termites) or (b) non-disclosure of a known material defect that is not readily open to observation by a buyer.
A full and proper written disclosure inoculates a seller from both of these claims and this is advisable even if the law does not require full disclosure.
What types of transactions are covered?
Section (B)(1) of the statute tells us what types of transactions are covered by the “requirement”:
- transfers by sale;
- transfers by land installment contract;
- transfers by lease with option to purchase;
- an exchange of property; or
- a lease for a term of ninety-nine years and renewable forever.
Who must provide the form and who is exempt?
So, then, on to the question of who must provide the disclosure and when must it be provided:
The statute provides that it covers all “transferors ” of properties containing one to four dwelling units. So, this would seem to include otherwise commercial properties that contain under four dwelling units, such as a bar or restaurant with apartments above.
And then the statute contains an extensive list of exemptions from its requirements detailed below, but the exemptions do include:
- New construction;
- Transfers from an estate; and
- Transfers among family members and co-owners or pursuant to a divorce;
The statute does not exempt investors or simply owners who did not live in the property.
Waiver by buyer
Finally, a buyer can waive his right of rescission for a Residential Property Disclosure Form (O.R.C §5302.30 ((K)(3)(c). And, since this is the only remedy for the failure to deliver the Residential Property Disclosure Form, it is essentially a waiver of rights of the buyer under the entire statute.
Conclusion
So, the myth is busted. Investors and other owners who did not live in the house (except those administering an estate of a seller) are not exempt from the requirements of the statute.
Appendix
A more complete list of exemptions is below:
(1) A transfer pursuant to court order;
(2) A transfer to a mortgagee by a mortgagor by deed in lieu of foreclosure or in satisfaction of the mortgage debt;
(3) A transfer by a mortgagee, or a beneficiary under a deed of trust, who has acquired the residential real property at a sale conducted pursuant to a power of sale under a mortgage or a deed of trust or who has acquired the residential real property by a deed in lieu of foreclosure;
(4) A transfer by a fiduciary in the course of the administration of a decedent’s estate, a guardianship, a conservatorship, or a trust;
(5) A transfer from one co-owner to one or more other co-owners;
(6) transfer to immediate family members and transfers as a part of a divorce;
(7) A transfer to or from the state, a political subdivision of the state, or another governmental entity;
((8) A transfer that involves newly constructed residential real property that previously has not been inhabited;
(9) A transfer to a transferee who has occupied the property as a personal residence for one or more years immediately prior to the transfer;
(10) A transfer from a transferor who both has not occupied the property as a personal residence within one year immediately prior to the transfer and has acquired the property through inheritance or devise.
Our firm is pleased to serve as Plaintiff’s counsel in the assault case against Cincinnati Boxer Adrien Broner.
From today’s Enquirer our own Chris Finney is quoted:
“Adrien seems to have a penchant for walking around town and slugging people,” said Carson’s attorney, Chris Finney. “We want it to stop.”
Read about it in today’s Enquirer here.
As a real estate attorney, I many times take for granted that experienced real estate professionals — Realtors, lenders, and investors — understand the fundamentals of real estate law. And many times I am proven wrong in that assumption.
Just a few weeks ago, I again learned this lesson from real-life experience.
In that scenario, the parties signed a document entitled “letter of intent” for a million-dollar-plus property. The document identified the property in question, the purchase price and the timing for the closing.
Later, the seller obtained another offer on the property and took the position that our “Letter of Intent” was not binding. We took the opposite position and vigorously acted to enforce the newly-formed contact.
How is that so?
Statute of Frauds
First, we have extensively explored on this site the requirements of every state in the union that contracts for the purchase and sale of real estate (i) must be in writing and (ii) must be signed by the “party to be charged” therewith (i.e., the party who is to be sued on the contract). Grafton v. Cummings, 99 U.S. 100, 106 (1878); Smith v. Williams, 396 S.W.3d 296, 298 (Ky. 2012); Sanders v. McNutt, 72 N.E.2d 72, 75 (Ohio 1947). You may read more about that here.
What writing constitutes a contract?
Virtually any document that evidences a meeting of the minds between parties on the material terms of a transaction and that complies with the statute of frauds will be a binding contract for the purchase and sale of real estate. McGeorge v. White, 174 S.W.2d 532, 533 (Ky. Ct. App. 1943); Beasley v. ANG, Inc., 10th Dist. Franklin No. 12AP-1050, 2013-Ohio-4882, ¶ 8 (Ohio Ct. App., Nov. 5, 2013).
The title of the document does not matter. The paper on which the contract is memorialized does not matter. Whether it is written in pen, pencil, or crayon does not matter.
It simply matters that the material terms are in the document, the document is in writing and the document bears the signature of the “party to be charged therewith.”
Memoranda of understanding and letters of intent
Certainly, though, a document entitled so innocuously as a “letter of intent” or a “memorandum of understating” would not in and of itself be a binding agreement, right? Wrong.
Sometimes the terms of a document — such as a letter of intent or memorandum of understanding — may say in the text that it is not binding upon the parties unless and until they sign a contract drafted by their attorneys and signed by the parties. In such instance, by its own terms, the document is not a binding contract. See, e.g., John Wood Group USA, Inc. v. ICO, Inc., 26 S.W.3d 12, 17 (Ct. App. Tx. 2000) (“the parties expressly stated that the letter agreement ‘is not binding,’ with the exception of certain enumerated paragraphs”); Christ v. Brontman, 175 Misc. 2d 474, 477 (S.Ct. N.Y. 1997) (“Generally, if the language in the contract so provides, a real estate sales agreement which is subject to the approval of attorneys is not binding and enforceable until approved by the attorneys.”).
But in the absence of such “saving” language, a writing is a binding agreement on the terms set forth in such writing.
Again, the title of a document, or its brevity, could lead a buyer or seller to believe it is intended to be non-binding, and simply preliminary. Buyers and sellers are lulled into erroneous understanding that the informal nature of the document, the shortened text, and/or the title mean that the document is not binding unless and until further documentation follows, carefully reviewed or drafted by counsel. This is simply false as a matter of law.
Lot Reservation Agreements
This same logic extends to “Lot Reservation Agreements” in the context of a buyer-builder relationship. A one-paragraph agreement that seems to be just a quick way to tie up a piece of property for a few weeks or months could in fact give rise to binding obligations assuming the agreements comply with other contract principles.
Principle extends to other agreements
Although the focus of this article is the purchase and sale of real estate, its contents could just as well apply to other legal transactions such as real estate leases, options, easements and license agreements, and to non-real estate transactions such as equipment leases, and the sale of a company or its assets.
The back of an envelope
We learn in law school that a buyer and seller can memorialize a contractual agreement on any type of paper, including the back of a used envelope.
About 20 years ago, to my surprise, I ended up being involved in a “back of the envelope” case. There, the buyer sat on one side of a table and the seller’s Realtor was on the other side of a table. The Realtor wrote out some basic bullet-point contract provisions, being the address of the subject property, the price and the closing date, on the back of a used legal-sized envelope. The buyer, on the other side of the table, signed the document upside down! — he didn’t even bother turning around the writing and reading it. A judge found that that crazy-looking instrument constituted a contract binding upon that buyer.
The lesson: It simply does not matter what kind of paper the contract is memorialized upon or even where and how the terms are written on that piece of paper.
Conclusion
As we frequently caution our clients, “it’s a dangerous world out there.” You must carefully consider the consequences of your actions and those acting on your behalf.
After 30 years as a real estate attorney, I thought I had seen everything: Bill Erpenbeck, mortgage fraud, short sale fraud, and the massive fraud perpetrated on America by Wall Street in the housing crisis. Indeed, well before the mortgage crisis hit with full force, I authored a continuing education course entitled “Fraud” and taught it to thousands of Realtors, builders and lenders exposing rampant fraud in the residential and commercial real estate industry .
But still I was shocked in the past two years to be personally involved in two cases involving outright theft of real property right here in Hamilton County. One of those cases is highlighted in the Cincinnati Enquirer here.
Background: The passive, unilateral nature of our property recording system
Assuming that the Hamilton County Commissioners’ abolition of registered land has been effective (read here), the land registration system is entirely passive from the County’s perspective in both Ohio and Kentucky. This system of land record recordation is typical throughout the nation. What this means is that by and large the government officials responsible for accepting documents for recording do just that — they accept what is presented to them, and then index them. They do nothing at all to check their validity.
To transfer real property, one simply brings in for recordation a deed that is purportedly signed and acknowledged (notarized) by the current owner. In Ohio, the Auditor will transfer the real estate on his records and “green light” the deed for recording by the Recorder. The County Recorder simply time-stamps and records whatever original instruments are presented to him in proper form and with a property legal description. In Kentucky, the County Clerk performs these same functions.
It is no one’s job at the Auditor’s office or Recorder’s office to verify signatures — or even to check that the notary public acknowledging the signature is licensed by the state.
The system is “passive” in that the offices receive the instruments for recording, and as long as their grantor information lines up with public records, they index and record the transfer on their records.
Just prepare and sign a deed transferring property into your name
So, the new scam I have seen is follows this pattern:
- The fraudster forms a limited liability company that he owns and controls. Anyone can do this with an attorney, through LegalZoom.Com or even just by completing simple forms available from the Secretary of State of each state. (NOTE: Each state requires each LLC to have a “statutory agent” to receive formal legal notices, but many states — including Ohio do not require the ownership of the LLC to be publicly identified. Kentucky does require LLC ownership to be disclosed.)
- The criminal then finds a suitable real property — presumably one that has vacant and neglected for some time.
- Then, the fraudster prepares a deed transferring that property into the name of his new LLC.
- He signs that deed or finds someone to sign it, and has it acknowledged (notarized).
- The notary public is required by law to verify that the signer of the deed, but many simply do not. Further, if the target property is in a corporate name, it is unusual for the notary to check that the signer has authority in fact to sign for the seller. (NOTE: In the fraud referenced in the article linked above above, he himself acted as the notary, and signed someone else’s name to the deed in place of the actual owner.)
- That fraudster then markets the property for sale and quickly — for consideration — transfers the property to a new buyer, pocketing the cash and disappearing into the woods.
The system is further undermined because office supply and stationary shops will produce a notary seal for anyone — or for a fictional name — without checking if that person is in fact a registered notary public. Thus, the signer and the notary public can be fictional on a deed.
Experienced real estate professionals are shocked this could happen
I have had the chance over the past year to tell the story before audiences of experienced Realtors of two separate frauds in Hamilton County in which I personally participated — once representing the actual owner whose property was “stolen” in this fashion and once representing the end buyer. In each instance, the Realtors were shocked and dismayed that our land title registration system could be so easily gamed. But it can and does happen.
How buyers can protect themselves
As we have explained here, when buying real property there are only two layers of protection for the buyer: (i) the Seller, who makes broad promises by means of a general warranty or limited warranty deed has continuing obligations to the owner under that deed to assure that title is “good,” and (ii) the coverage provided by an owner’s policy of title insurance.
Many sellers have “nothing to their name,” and thus the promises they make under warranty deeds could be worthless — and it is difficult for a buyer to ascertain whether a seller has the means to stand behind their promises. Thus, when I sit at a closing table and hear a buyer tell me why they have no need for an owners’ policy of title insurance — or worse, for their Realtor to explain that it is worthless — I cringe. I don’t want to argue to convince a buyer to purchase something that I am selling and profiting from, but at the same time I do know there are risks the buyer is undertaking if he does not obtain that coverage. The “theft of real property” described above is one of these risks that is difficult or impossible for the closing agent to detect, but one fully covered by title insurance.
The end of the stories
We mention two scenarios above where our clients were victims of property theft. In the first instance, our client was the buyer — and he had purchased an owners’ policy of title insurance. Thus, he was made whole by the underwriter as son as the real owner made a claim to title to the real estate. In the second instance, our client was the owner at the time of the “theft.” He instituted a “quiet title” action to recover record ownership of his property and won a default judgment against the wrongdoer, vesting title back in the rightful owner’s name. That client elected not to pursue the tortfeasors — the thieves, the notary, the closing agent — any further to save time and money.
Conclusion
The moral to this story is twofold: (i) don’t kid yourselves, it is dangerous out there, and (ii) title insurance covers a multitude of “sins” when real estate title goes bad.
Let Finney Law Firm and Ivy Pointe Title, LLC help you avoid and insure over these risks of real estate investing. Call Rick Turner of Ivy Pointe Title with any questions at 513-943-5660.
In the commercial leasing world, the provisions regarding the maintenance, repair and replacement of the heating, ventilating, and air conditioning system (HVAC) are often a point of contention. The reason for this is that the repair and replacement of the HVAC can be expensive, and the scope of the repair and replacement can be directly affected by the actions (or inaction) of the tenant. This summary will review some of the considerations and suggest possible resolutions to consider to address the HVAC.
Typical Landlord Lease
The initial draft of a typical retail commercial landlord’s lease will pass all costs associated with the maintenance, repair and replacement of the HVAC through to the tenant. From a practical perspective, this type of clause may not properly allocate the costs of the HVAC to the tenant based on the tenant’s use of the system. For example, this type of clause may require the tenant to pay for costs for a system that is damaged prior to tenant’s lease, or could result in the tenant having to replace the system in the last month of the term. From a landlord’s perspective, this type of clause may result in the tenant attempting to prolong the life of the HVAC beyond its useful life to avoid having to pay for the replacement of the unit.
Condition on Commencement
The condition of the HVAC on the commencement of the lease can affect the required costs associated with the maintenance, repair and replacement. If the HVAC is new, then there should be a warranty on the system and the tenant should seek a lease clause ensuring the warranty is passed through to the tenant. If the HVAC is not new, the tenant should have the HVAC inspected to determine the condition of the system and predicted useful life. If there is a concern regarding the condition of the HVAC, the tenant should consider negotiating some type of warranty and/or limit on the costs for repair/replacement for the system by the landlord (e.g. annual cap, etc.).
Maintenance, Repair and Replacement
The lease should allocate the responsibility for the maintenance, repair and replacement of the HVAC between the landlord and the tenant. If the landlord is relying on the tenant for the maintenance, the landlord should consider requiring tenant maintain a contract with an HVAC service provider for biannual or quarterly service. If the landlord is relying on the tenant for the maintenance and/or repair of the HVAC, the landlord should consider requiring tenant maintain a log regarding the same as a condition of the lease. The landlord will want to review any maintenance agreement or repair log on a regular basis to ensure that they are being maintained.
Landlord’s Concerns
The landlord will not want to cover the payment for costs of the repair and/or replacement of the HVAC if the system is damaged by the tenant. For example, if the tenant fails to regularly change the filters or props open the doors of the premises causing damage to the system, the landlord will not want to cover the cost of repairing or replacing the system. The landlord will want to limit any warranty and/or agreement to cover costs to exclude damage to the HVAC caused by the tenant.
Replacement of HVAC
Most tenants are not thrilled with the possibility that they will have to pay for the replacement of the HVAC towards the end of the term. This can lead to a tenant attempting to bandage the HVAC to avoid the replacement. A better solution may be for the landlord to agree to pay for the replacement, and have the tenant reimburse a proportionate share of such costs for the remainder of tenant’s term. This should create an incentive for the tenant to seek the replacement of the HVAC when the repair costs are high and/or functionality of the system is compromised.
Summary
Although not uncommon, a simple clause in a commercial lease requiring the tenant to maintain, repair and replace the HVAC may not properly allocate the costs between the parties or be in the best interest of the landlord. A clause addressing the HVAC that takes into consideration the interests of the tenant and the landlord can help avoid conflict between the parties regarding the HVAC. Further, it will reduce the incentive of the tenant to seek a new location at the end of the term if the tenant faces the prospect of having to replace the HVAC if they continue operations at the premises. So, both the landlord and tenant have an incentive to think through the HVAC clauses at the beginning of the leasing relationship.
One of the core values of the Finney Law Firm is empowering the client in decision making on their legal matters, be they litigation or transactions. From the law firm perspective, it takes a constant, repeated, and consistent effort to communicate the status and options to a client, and to empower the client to make decisions — good decisions — for the future of his legal affairs.
Chris Finney has been invited to present to fellow attorneys at the Cincinnati Bar Association’s “Brown Bag Luncheon” series with the topic “Empowering the Client in Decision making Along the Way” on Wednesday, February 10 from noon to 1 p.m.
We are proud to have developed and implemented aggressive strategies to place the client in the driver’s seat as a legal matter progresses.
For more information on this course, please contact the CBA at (513) 699-1397.