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Casey Taylor

Recent Shift in Arbitration Law: Can you be forced into arbitration?

Author By Casey A. JonesPosted on

The Basics

As a basic principle, every citizen in the United States (and even non-citizens) are entitled to due process under the law. In simpler terms, everyone has the right to have their legal disputes treated fairly based on established laws and principles. With certain exceptions, this includes a right to bring an action in court to hold accountable those who have committed a wrong.

So what are those exceptions, and what do they mean?

One of the most notable exceptions to the right of a person to have their matter heard in court is where the parties have agreed to a process known as “arbitration.” Arbitration is “a method of dispute resolution involving one or more neutral third parties who are [usually] agreed to by the disputing parties and whose decision is binding.”  Black’s Law Dictionary 119 (9th ed. 2009). Practically speaking, arbitrators are usually practicing or retired attorneys and/or judges who essentially serve as the trier of fact in an expedited proceeding held in lieu of a court trial. Arbitration can be particularly appealing to large companies that often face high volumes of threatened or actual legal claims for a multitude of reasons – for one, arbitration is generally more expedient and cost effective than in-court litigation. Employers frequently require them as a condition of employment so that various employment claims are handled confidentially.

Why wouldn’t everyone want to participate in arbitration?

Another reason that large companies, such as banks, credit card companies, and other financial institutions, may push arbitration is that it is a significantly more favorable forum for – you guessed it – those companies. Other significant disadvantages for the “Average Joe” consumer in arbitration are: (a) these arbitration clauses often disallow class actions or certain elements of damages, i.e., “punitive” damages, (b) arbitration usually limits the parties’ discovery rights – for example, the consumer may not be able to depose witnesses or seek the production of documents that could help them prove their claims and (c) arbitration is frequently required to be confidential, prohibiting a public discussion of the facts and outcome of the proceeding.

What if I don’t want to be forced into arbitration?

Over the past several decades, the law has been very favorable to companies seeking to force customers/consumers into arbitration. Southland Corp. v. Keating, 465 U.S. 1, 11 (1984) (noting “a national policy favoring arbitration”). However, there has recently been a palpable shift in these principles, especially in Ohio and the Sixth Circuit.

Arbitration Case Law

In March 2021, the Sixth Circuit overturned an Eastern District of Tennessee case wherein the District Court granted a bank’s motion to dismiss litigation filed in court and compel arbitration. See generally, Sevier County Schs. Fed. Credit Union v. Branch Banking & Trust Co., 990 F.3d 470 (6th Cir. 2021). In that case, the bank (after a series of mergers) sent out a new agreement that contained new or updated terms and stated that, by continuing to maintain an account with the bank, the accountholders agreed to those new terms – in other words, continuing to do business with the bank constituted acceptance of the new terms. The new terms included, inter alia, a binding arbitration provision and a waiver of class actions. Id., at 473. The District Court found that, by continuing to do business with the bank, the plaintiffs had accepted such terms and, therefore, must pursue their claims via arbitration. See generally, id. But the Sixth Circuit disagreed. Id.

In rendering its decision, the Sixth Circuit found that determining the existence of a valid arbitration agreement is a question of state-law contract principles. Id., at 475. That is, what are the elements required to create a contract under state law, and were those elements met. Under Tennessee contract law (which is analogous to Ohio contract law), the formation of a contract requires consideration and mutual assent. Id., at 476. Mutual assent can only be found where there is a “meeting of the minds,” meaning “Did both sides assent to be bound by the terms of the contract?” Id. The Sixth Circuit in Sevier County found no mutual assent and, specifically, noted that mere “silence or inaction” is insufficient to bind a party to an arbitration provision. See id., at 477, quoting its prior decision in Lee v. Red Lobster Inns of America, Inc., 92 F. App’x 158, 162 (6th Cir. 2004) (“The flaw in the district court’s analysis is that it places the burden on the [consumers] to . . . object to a company’s unilaterally adopted arbitration policy or risk being found to have agreed to it. This is not how contracts are formed.”).

Ohio courts have begun following suit, even citing directly to Sevier County. On August 5, 2021, the Eighth District Court of Appeals rendered its decision in Gibbs v. Firefighters Community Credit Union, 2021-Ohio-2679, affirming the lower court’s decision denying a defendant’s motion to stay the action pending arbitration. In Gibbs, plaintiffs filed a class action lawsuit, and the defendant credit union moved to compel arbitration, arguing that plaintiffs agreed to a change in the terms and conditions of their account agreements, including an “Arbitration and Waiver of Class Action Relief provision,” by failing to opt out. Id. at ¶¶ 2-3. The credit union purportedly sent notice of these changes to account holders via email, and the email stated that an account holder’s continued use of defendant’s banking services indicated assent to the updated terms. Id. at ¶¶ 3-4. The credit union maintained that because plaintiffs never opted out of the provision, it became effective and controlled the matter. Id. at ¶ 3. However, nothing in the content of the email informed the account holders of the Arbitration and Waiver of Class Action Relief provision or the ability to opt out – this information was, instead, included in an attachment to the email.  Id. at ¶ 5.

Like the court in Sevier County, the Eighth District in Gibbs relied on Ohio contract law principles governing the formation of contracts and found that the credit union failed to meet its burden of establishing the existence of an agreement to arbitrate. Id. at ¶¶ 14, 18. The court held that there was no “meeting of the minds” between plaintiff and the credit union as to the arbitration provision because the content of the email notice gave no indication that the changes involved the addition of the arbitration provision. Id. at ¶¶ 16-17. Instead, “[t]he Plaintiffs were thus lulled into not giving a thought to the unilateral addition of the arbitration provision . . .” Id. at ¶ 17, quoting Sevier County, 990 F.3d at 481.

Take Action

If you wish to pursue claims that the other party maintains are subject to an arbitration provision, and you do not wish to participate in arbitration, you may have some options. For instance, if you dispute the existence or validity of an arbitration clause, Ohio statute provides a process by which you can assert such dispute. See R.C. 2711.03(B) (“If the making of the arbitration agreement or the failure to perform it is in issue in a petition filed under division (A) of this section, the court shall proceed summarily to the trial of that issue.”). That is, if you dispute that an arbitration agreement exists, you may be entitled to have a court determine that threshold issue before the underlying claims proceeds.

We Want to Help

We recently had a case where a financial institution argued that our client’s claims, filed in state court, were subject to an arbitration agreement and, therefore, moved the court to dismiss our claims and compel arbitration. We disputed that our client had ever received proper notice of any arbitration agreement, much less agreed to the same, under facts very similar to the Sevier County and Gibbs cases discussed above (ironically, the financial institution had previously cited to the District Court case in Sevier County, yet failed to notify the Court when it was overturned by the Sixth Circuit). We moved for a trial under R.C. 2711.03(B), which was granted. After an unsuccessful interlocutory appeal by the financial institution and nearly eighteen months of litigation and discovery on this limited arbitration issue, the financial institution eventually agreed to withdraw its motion to compel arbitration.

While it is not always an easy road, we are passionate about protecting our clients’ rights, including the right to have their claims heard in the proper forum. Unfortunately, consumers are too often “railroaded” by big companies with deep pockets in the litigation process, and it is our desire to make sure every client has access to the tools necessary to hold these companies accountable for their conduct. As is evident from our recent case and the long and arduous battle it took to keep our client’s claims in state court where they belong, we don’t say this lightly – we live it every day in our practice.

If you are considering bringing a claim or have concerns regarding whether an arbitration agreement may apply, we can help you evaluate those questions and explore your options.

Please contact Casey Jones (513.943.5673) if we can help with your litigation or arbitration dispute.

Class Certification Motion in Build Realty litigation is fully briefed

Author By Christopher P. FinneyPosted on

This firm and the firm of Markovits, Stock & DeMarco have undertaken a complex piece of real estate class action litigation against Build Realty, First Title, George Triantafillou and many others involving hundreds of victims. After many years and much discovery and motion work, the Motion for Class Certification has finally been fully briefed for Judge Douglas Cole. Many of our readers are following that litigation and check in for updates.

Attached are the following pleadings relating to that motion:

We would expect (but cannot assure) a decision on this motion sometime before the end of 2021 and then will advise prospective class members thereafter.  In the meantime, if you have questions, please contact attorney Chris Finney at 513.943.6655.

Risk <--> Reward

Author By Christopher P. FinneyPosted on

In business and personal commercial dispute resolution, clients come to us who either have been sued by someone and need a defense, or have been wronged by someone and desire to pursue that claim in court. For both, litigation should involve, among other factors, a risk versus reward analysis.

If you pay us “X” in legal fees and “Y” for expenses, will you obtain a better outcome than settling on even unfavorable terms (as a defendant) or walking away from a claim (as a plaintiff)?

Unfortunately, litigation is always a “bad option” for a host of reasons:

  • The simple math of the cost of getting the matter before a Judge for resolution.
  • The unpredictability of result. Even the best cases (from a defense or prosecution standpoint) are never as clear to a judge or jury as they are to you, and in many cases your attorney, who takes the role of being an advocate who believes in your case and in you.
  • When you bring a claim, will the defendant bring a counterclaim that you will need to defend? This is very frequently the path of litigation.
  • Related to the foregoing, rarely are cases as one-sided as the client tells us in the initial meeting. There frequently is one stray witness, one stray e-mail, one stray fact that does not make our client look exactly like Snow White when the case goes to trial.
  • Litigation disrupts personal life and business affairs. It is messy, time-consuming, distracting to family, neighbors, friends, clients and employees, who may need to testify at trial, gather voluminous documents, and be otherwise be distracted from life and business priorities.
  • Litigation has “collateral damage” associated with it: Bad publicity, disruption of partnership affairs, or alienating client and vendor relationships. Years ago, I had a client involved in litigation who was informed after years of study and volunteer activity that he could not serve as a deacon in his church because of his litigation. Another had his name plastered on the front page of the newspaper. A third was told by his bank to do business elsewhere.
  • In the middle of litigation can be business failure, death, divorce, insolvency, transfers of assets, etc.  In other words, just because someone appears to have assets that can be seized when a case is commenced, does not mean the assets will be there to collect after three or five years of fighting.

So, the important question for the client is: Is this fight worth these costs, distractions and risks to you?

I say the words “risk” and “reward” and very frequently, I wonder if clients only hear the word “reward.” I wonder if they really thoroughly assess the costs and risks involved in being in a courtroom.

Often, before a case is initiated, clients tell me it is the “principal” of the case, and more power to anyone in our society who acts out of principal. But just as frequently, after bills mount for three months, six months or a year, they would be happy just to settle for the legal fees they have incurred to that point, taking them back to where they started with our firm.  In the rear view mirror, the principal pales in comparison to the cost.  But the other party has spent the same or more in legal fees to get to that point, and is not interested in spending or conceding more on a settlement.

So, when I say litigation is  a “bad option,” I mean it. But the question is whether it is worse than the other options of defending a frivolous case or walking way from a meritorious case that — for a host of reasons — needs to be pursued.

What is a case really worth? As I recall, now-deceased Federal Judge Arthur Spiegel from Cincinnati encouraged litigants in his courtroom to look at a case this way:

  • As a Plaintiff, if you won, how much really will you collect?
  • And then what is your anticipated percentage chance of winning at trial?
  • If your collectible damages are $400,000 and you have a 75% chance of prevailing (no case is a 100% winner), the case has a settlement value of $300,000.
  • And then off of that comes the legal fees,  time and expense of moving forward with trials and appeals.
  • The same analysis applies to the defense side of a case.

I encourage litigants to make this analysis before they incur $100,000 or more in legal fees and suffer the other adverse consequences of litigation. Unfortunately, rare is the case — exceedingly rare — when both the Plaintiff and the Defendant are both willing to have that discussion before engaging in the mutually assured destruction that litigation almost always becomes.

But from your side, be sure to perform your risk-reward analysis before litigation commences or proceeds too far.

Property-Tax

Mortgagee remedies and Ohio statute of limitations

Author By Jennings D. KleemanPosted on

“A mortgage is a conveyance of property to secure the performance of some obligation, which is designed to come void upon due performance thereof.”[1] The Ohio Revised Code characterizes mortgages as “liens.”[2] Mortgage liens are only applicable to real property, as with the land and the buildings attached to it.

Mortgagors (the party granting the mortgage) tend to grant mortgages to secure payment of money from the mortgagee (the party granting a loan in consideration for the mortgage).[3] The instrument evidencing the debt secured by the mortgage is generally referred to as a “note.” However, mortgagors may grant mortgages to secure the performance of other obligations, like an environmental indemnification.

Notes and mortgages, as contracts, are negotiable by the parties to them. As such, notes and mortgages include all sorts of obligations and remedies. That said, there are three basic remedies that a mortgagee can pursue to enforce the note and mortgage.[4] Mortgages can pursue all three of the following remedies at the same time or separately.[5] However, in doing so, a mortgagee must keep in mind the different statute of limitations periods for each remedy.

(1) An action on the debt secured by the mortgage (the note).

When a mortgagee brings an action on the debt secured by the mortgage, the mortgagee is bringing an action for a personal judgment debt evidenced by the note against the mortgagor (or any other maker of the note, even if they did not sign the mortgage).[6]

In Ohio, written instruments, such as notes, have a six-year statute of limitations, running from the due date(s) or, if applicable, the date the debt is accelerated.[7] When the statute of limitations runs on the note, the mortgagee can still go after the mortgagor with a foreclosure action, as the statute of limitations on the mortgage is longer. The statute of limitations for the foreclosure does not run by virtue of the statute of limitations on the note running.[8]

(2) An action to foreclose on the mortgaged property.

When a mortgagee brings an action to foreclose on the mortgaged property, the mortgagee is attempting to secure the mortgagee’s conditional interest (conditional on mortgagor default) in the property.[9] If the mortgagee succeeds here, the mortgagee will have superior title to the property than that of the mortgagor.[10] The go-to remedy for mortgagees is that of an action to foreclose on the mortgaged property.[11]

In Ohio, foreclosure actions have an eight-year statute of limitations, running from the date that the breach occurred.[12] The statute of limitations for foreclosures was changed from fifteen years to eight years on September 28, 2012.[13] For breaches that occurred before September 28, 2012, the statute of limitations runs at the end of the fifteen-year period from the breach or September 27, 2020, whichever is earlier.[14]

(3) An action of ejectment against the occupier of the mortgaged property.[15]

When a mortgagee brings an action of ejectment against the occupier of the mortgaged property, the mortgagee is attempting to take possession of the property.[16] In doing this, the mortgagee is taking advantage of the mortgagee’s superior title to the property to that of the mortgagor. [17]

In Ohio, ejectment actions have a twenty-one-year statute of limitations, running from the date that the mortgage becomes due.[18]

The aforementioned information regarding the statute of limitations does not apply to the mortgage itself. A mortgage, that is unsatisfied or unreleased of record, remains in effect for twenty-one-years from the date of the mortgage or twenty-one-years from the date of the maturity date (if any), whichever is later.[19] This, however, deals more with the purchasing of encumbered property free from the prior mortgage, and the mortgagee’s ability to enforce a prior mortgage against purchaser.

If you, as a mortgagee, have a mortgagor in default and want to enforce the note, mortgage, or both, call the Finney Law Firm today!

[1] Barnets, Inc. v. Johnson, Case No. CA2004-02-005, 2005 Ohio App. LEXIS 703, *8 (Ohio App. 12th Dist. Feb. 22, 2005), citing Brown v. First Nat. Bank, 44 Ohio St. 269, 274 (1886).

[2] Barnets, at *8.

[3] Barnets. at *9.

[4] Barnets, at *9.

[5] Barnets, at *9.

[6] United States Bank Nat’l Ass’n v. O’Malley, 150 N.E.3d 532 (Ohio App. 8th Dist. Dec. 26, 2019).

[7] ORC Section 1303.16.

[8] O’Malley, at 532.

[9] O’Malley, at 532.

[10] Search Mgmt. L.L.C. v. Fillinger, 2020 Ohio App. LEXIS 1966, *1.

[11] Barnets, at *9.

[12] ORC Section 2305.06.

[13]Ohio Real Property Law and Practice § 19.10 (2020).

[14] Ohio Real Property Law and Practice § 19.10 (2020)

[15] Barnets, at *9.

[16] Fillinger, at *1.

[17] Fillinger, at *1.

[18] Cont’l W. Reserve v. Island Dev. Corp., 1997 Ohio App. LEXIS 962, *1.

[19] ORC Section 5301.30.

Fraudulent transfers of assets to defraud creditors is a major “no-no.” Proceed with great caution.

Author By Jennings D. KleemanPosted on

Debtors that anticipate being subject to a judgment might fraudulently transfer their assets in an attempt to hide those assets from their creditors. This issue might even exist after the creditor obtains a judgment against the debtor. Just because a debtor might do this, does not mean that creditors are out of luck. 

Ohio’s Uniform Fraudulent Transfer Act, under ORC Chapter 1336, creates rights for creditors to set aside fraudulent transfers by debtors. The point of these rights is to do away with fraudulent transfers that “prevent a creditor from obtaining satisfaction of an underlying debt.” 

There are four general causes of action under ORC Chapter 1336. A fraudulent transfer, as the one described above, would likely fall under the cause of action provided by ORC Section 1336.04(A)(1). To succeed on such a claim, the creditor must prove that there was a transfer of an asset with actual intent to defraud, hinder, or delay present or future creditors. A creditor may prove “actual intent” through the use of circumstantial evidence. Types of circumstantial evidence, or badges, are listed in ORC Section 1336.04(B). 

If a creditor fraudulently transfers assets, ORC Section 1336.08 generally allows creditors to sue the transferees (i.e., parties that received the fraudulent transfers). The creditor can sue any of the transferees for the value of the transferred property, subject to certain defenses.” That is not to say that a creditor would be required to sue every single transferee. The only “necessary party would be the transferee (or participant for whose benefit the transaction was made) from whom recovery is sought.” The statute is written as such because in most fraudulent transfer cases, “the debtor is judgment-proof and the transfer was made to hide the property from the creditor.” 

ORC Section 1336.07 addresses creditor remedies, which include:

  1. an avoidance of the transfer; 
  2. an attachment or garnishment against the asset transferred or other property of the debtor;
  3. an injunction against further disposition of the asset transferred or other property of the debtor;
  4. an appointment of a receiver to take charge of the asset transferred; or
  5. any other relief that the circumstances of the case may require.”

Punitive damages may also be awarded. However, ORC Section 2315.21(C) states that punitive damages are not recoverable unless: 

  1. the actions or omissions of that debtor demonstrate malice or aggravated or egregious fraud, and 
  2. the trier of fact has made a determination of the total compensatory damages recoverable by the creditor from that debtor.

Attorneys’ fees may also be awarded. However, there is not an automatic award of attorney fees for those who prevail under ORC Section 1336. The creditor “may only recover reasonable attorney fees” when punitive damages are awarded.

So, if you are a creditor chasing a debtor who is actively fraudulently transferring assets to hide them from you, it might be time to call an attorney with the Finney Law Firm. 

Contact Jennings Kleeman at 513.797.2858 for assistance with a fraudulent transfer claim.

Time limits for Ohio Mechanics liens

Author By Jennings D. KleemanPosted on

Contractors, laborers, and materialmen tend to run into issues receiving payment for their work on certain projects. A terrific way for contractors, laborers, and materialmen to guard against not getting paid is to attach a Mechanic’s Lien to the property on which the contractors, laborers, and materialmen performed their work. From an extremely general point of view, to perfect a Mechanic’s Lien, contractors, laborers, and materialmen must file an “Affidavit for Mechanic’s Lien,” with the recorder’s office in the county where the property is located.

It is key to remember that there are time limits that must be adhered to on the front end and back end of filing an Affidavit for Mechanic’s Lien.

The Front End

When it comes to the front end, the time limit will vary based on the type of project.

If the Mechanic’s Lien is associated with a residential property, like a family home or condominium, then a contractor, laborer, or materialman claiming a Mechanic’s Lien has sixty (60) days from the date that the last labor was performed, or material was provided by the contractor, laborer, or materialman.[1]

If a Mechanic’s Lien is associated with oil or gas wells or facilities, then a contractor, laborer, or materialman claiming a Mechanic’s Lien has one hundred and twenty (120) days from the date that the last labor was performed, or material was provided by the contractor, laborer, or materialman.[2]

For all other Mechanic’s Liens, a contractor, laborer, or materialman claiming a Mechanic’s Lien has one seventy-five (75) days from the date that the last labor was performed, or material was provided by the contractor, laborer, or materialman.[3]

The Back End

ORC Section 1311.13 deals with attachment of liens, continuance, and priority. ORC Section 1311.13(C) states that Mechanic’s Liens, under sections 1311.01 to 1311.24, continue for six years after the Affidavit for Mechanic’s Lien is filed with the county recorder, as required by ORC Section 1311. If a cause of action based on a Mechanic’s Lien is brought within the six years, then the Mechanic’s Lien will continue “in force until final adjudication thereof.”

If a cause of action based on a Mechanic’s Lien is not brought within the six-year period, then the rights associated with the Mechanic’s Lien are extinguished.[4] Thus, there is a six-year statute of limitations to bring a cause of action based on a Mechanic’s Lien.[5] Furthermore, “the statutory scheme for the filing and enforcement of [M]echanic’s [L]iens does not provide for the tolling or expansion of designated statutory time limits.”[6]

If you have a Mechanic’s Lien and need to act, please feel free to reach out to the Finney Law Firm, before it is too late!

_____________________

[1] ORC Ann. 1311.06(B)(1).

[2] ORC Ann. 1311.06(B)(2).

[3] ORC Ann. 1311.06(B)(2).

[4] Banner Constr. Co. v. Koester, 2000 Ohio App. LEXIS 1313, *1.

[5] Id.

[6] Id.

NPR explains the extension of the eviction moratorium and the new $25 billion rental assistance program

Author By Christopher P. FinneyPosted on

As we explained previously, the pandemic relief bill that has been approved by both Houses of Congress, but still awaits the President’s signature, contains good and bad for our nation’s market-rate residential landlords. From the article:

  • It extends the CDC eviction moratorium through January 31, 2021 (and it is expected to be extended further from there under the Biden Administration).
  • Tenants can qualify for up to 15 months of federal rental assistance.
  • The criteria for qualification are not clear as of yet.
  • This assistance partly will cover months of unpaid back rent, rewarding landlords who have not evicted during the COVID-19 pandemic. A landlord cannot get back rent if the tenant has already left.
  • Rental assistance money will be distributed by states and cities.
  • Renters will apply for the help, and the money will be sent directly to their landlords. If a landlord doesn’t cooperate, the tenant can access the funds directly.
  • Renters looking for assistance can call 211 or go to the website www.211.org. It’s a confidential referral and information help line and web site.

So, the landscape will be changing soon very significantly in the relationship between landlord and tenant in the affordable housing sphere.

We will post more detail as it becomes available.

Contact Chris Finney (513.943.6655) if you have questions.

The eviction moratorium, the ghosts of regulations past, present and future

Author By Christopher P. FinneyPosted on

Entertain us, if you will, as we serve as Jacob Marley to landlords in visiting the ghosts of eviction moratoriums, past, present and future.

After months of experience with the eviction moratorium imposed by the Centers for Disease Control, we now know that most residential evictions — even those for non-payment of rent — can proceed per normal procedures, at least until new regulations are issued and the moratorium never applied to eviction for issues other than non-payment (e.g., criminal activity and damaging the premises,)

The past

As reported here, the Centers for Disease Control on Friday, September 4, 2020 imposed a residential eviction moratorium for non-payment of rent in certain limited circumstances through the end of the year due to the impact of COVID-19. That relief required the tenant to certify that 1) the individual has used best efforts to obtain government assistance for the payment of rent, 2) the individual falls below the above-income thresholds ($99,000 for individuals and $198,000 for those filing jointly), 3) the individual can’t pay rent due to loss of income or medical expenses, 4) the individual is using best efforts to pay the rent or as much of it as he can, and 5) eviction would render the individual homeless.

And as we report here, the CDC clarified that Order, allowing for more vigorous actions by landlords pursuing eviction: Cross examination of a tenant who claims he has met the criteria, allowing commencement and pursuit of an eviction action even if the set out is not until after the first of the year, and imposing criminal penalties upon tenants making false certifications.

The present

Our experience in recent evictions is that many tenants cannot stand up under cross examination as to the CDC certifications: They usually have paid no rent at all, which hardly ever complies with the CDC “best efforts” criteria, and it is unlikely the eviction will result in homelessness for the vast majority of tenants.

In Hamilton County, before conducting the forcible entry and detainer hearing, the Magistrate has a separate evidentiary hearing on whether the CDC criteria are met — including allowing a landlord to cross examine a tenant — and then, when the tenant fails to meet this burden, allows the eviction hearing to proceed. In all, the takes an extra  5-10 minutes to try an eviction case and we have not yet failed to exceed the CDC standards.

The future

Add to all of this the fact that an eviction commenced today won’t result in a set out until well into January. Thus, the moratorium no longer has any application to new evictions being filed.

Finally, we don’t know either how the Trump administration will address the regulations after their year-end expiration until his term ends on January 19th, or how the new Biden administration will address the issue thereafter. For both Presidents, the issues are difficult: Millions of tenants are facing severe financial hardship as a result of the COVID-19 crisis, but on the other hand, landlords have to pay bank loans, real estate taxes, building repairs, and for insurance. Many can’t meet their obligations if tenants are not paying their rent. Then, if they start en masse to default on mortgage loans, it could destabilizing banks as in 2007-08. These are not easy issues for anyone.

So, the next few weeks and months will determine a new course for landlord-tenant legal relationships. Stay tuned for more updates, and contact Chris Finney (513.943.6655) with any Ohio or Kentucky eviction issues you may have.

Do Realtors need to maintain commercial general liability insurance?

Author By Christopher P. FinneyPosted on

A Realtor recently posed this question to me:

How often are the agents getting sued when/if a client falls at someone’s house during a showing? To me it seems unlikely but recently in a CE course they tried to scare us.

My answer follows:

Liability generally is fault-based: Did you do something negligent to endanger a client? The standard is the normal “standard of care” a buyer expects from his Realtor. If the Realtor has that duty, fails to adhere to it, and someone is injured as a result, then liability may ensue.

  • Does a Realtor have a duty to-pre-inspect for hazards on and about a property? To turn on lights, to check for loose floor boards, to smooth edges of carpet that have curled? To make sure a buyer does not stick their hand in the electrical panel?

I never have heard of a scenario in which the Realtor was accused of negligence of this type, but I assure you if someone is seriously hurt, the Plaintiff’s attorney will sue everyone involved and attempt to say you “fell below the expected standard of care.”

So, prudence would call for everyone (Realtors, lawyers, appraisers, contractors, investors) to each have commercial general liability insurance against these types of risks. For Ohio real estate salesmen, this insurance would typically be maintained by his broker, and that coverage would extend to the agent. Each agent should not need to obtain his own coverage.

It is generally not expensive, but it is helpful to have.

Beyond that, there are certain special coverages that are advisable: Errors and omission insurance (sort of malpractice insurance for real estate brokers and agents), fiduciary coverage in case your employees steal from you or steal client funds (or property), and auto liability coverage, which is auto insurance for those engaged in commerce on your behalf (driving to and from appointments, getting signatures on contracts or delivering contracts, delivering keys, etc.).

For every business owner and individual, we recommend selecting a qualified insurance agent, and sit with him as the business is created, and as it grows over time, to discuss the amounts, deductibles, and types of insurance to maintain. Someday, you may be very happy that you did.

 

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