The Finney Law Firm has a strength in bringing claims under Ohio’s Open Meetings and Public Records laws, and we are used to seeing amazing defenses that public officials raise to their secretive acts in violation of Ohio law.

But even we were surprised at a counterclaim against a Council member brought on the basis that he refused to raise taxes, and refuses to adopt the “company line” on a host of other initiatives.  Maggie Thurber of Ohio’s Watchdog.Org writes, here, about this counterclaim against a Finney Law Firm client.  It’s going to be an interesting one!

A copy of the counterclaim is here.

This article is the first in a series on new construction.  The contents of this series of articles apply to commercial as well as residential projects.

Defining “what” is to be built in a new construction contract can be tricky.

For starters, when buying an existing commercial building or house, you can see, touch, feel and inspect what is there, and based upon those observations decide whether or not to buy.   But in a new construction contract, we must define — using words and drawings — the end product.  And it is an end product with hundreds and thousands of components.  Thus, we must carefully use the contract to describe what the builder will build.

This would include dimensions, construction materials, fixtures, mechanical systems and equipment, appliances, and finish materials, such as millwork (cabinets), countertops, flooring, landscaping, etc.

Some of these items are left out of the contract, and references as “allowances,” which are to be addressed in a later article.  Be cautious with allowances, as they are frequently the basis for price disputes between builders and buyers.

Second is the intangible of “quality.”  The flatness of concrete floors, the waviness of walls, the precision of miter joints, are all exceedingly difficult to describe.  One way to tackle this drafting challenge is to refer to a “model” or “sample” that the builder has held out as the general quality of construction.  For example: “the general quality of construction — to the finishes and selections — will equal or exceed that of the model home shown to buyer by builder located at 1234 Main Street.”  Others try to reference objective standards of quality, but this can be cumbersome to wade through– and be cautious of who drafted these standards as they will invariably be tilted towards the drafter.

So, consider carefully how you define what is to be built, and the quality of the construction.  It can mean the difference between a quality project and a disappointment.

This article is one in a series on the Finney Law Firm blog on new construction.  Read more here:

New construction: The “when” >>

New construction: Change orders, allowances and selections can significantly impact price >>

New construction: On whose land are you building? >>

New construction: Cost-plus versus fixed-price >>

New construction: What form of contract?

New construction: Ohio residential buyers absolutely protected from liens in limited circumstances

In contracts, leases, loan documents and other agreements, we frequently see a request that one party indemnify the other against certain occurrences.

As a simple and general proposition, indemnity provisions are ill-advised for the indemnitor.  They are open-ended access to one’s checkbook for all sorts of claims, and are usually accompanied by a duty to defend against those claims (i.e., pay for an attorney to defend a suit), whether meritorious or frivolous.  Thus, a short indemnity paragraph could lead to hundreds of thousands or millions of dollars of unexpected and unintended liability.  As a rule: Not a good idea.

Taking this concept over into the world of real estate sales, as is explained in this blog entry, Real Estate 101: Types of Deeds in Ohio, when a seller executes and delivers a warranty deed in Ohio (General Warranty Deed or Limited Warranty Deed), he is essentially providing an open-ended indemnification to a buyer of that property — and his successors down the chain of title — against certain title claims.  Among other things, a warranty covenant is a promise to defend against certain claims to the title from a third party.

Ohio Courts have ruled that the failure to provide that defense will mean the grantor must pay the attorneys fees of the grantee to so defend the title.  Hollon v. Abner, 1997 WL 602968 (Ohio App. 1 Dist., 1997).

Thus, although it is “standard operating procedure” in real estate transactions to provide a warranty deed, sellers may want to re-think that (starting with the signing of the contract as that instrument dictates what form of deed is required at the closing) and understand their open-ended exposure from a warranty deed.

Yesterday, I received an email from an attorney who was retiring after 31 years in the practice of law.  He shared some words that I thought wise, and I asked him if it was OK to share.  He graciously consented.  Here is part of his email:

Finally, I want to take a moment to say a few things that I think are important.  Retiring from a profession creates a new perspective. Thirty years of practice gives me the right to put a few things on paper.  Read on if you wish.

The practice of law has given me the opportunity to help solve problems for others.  Helping others overcome a hurdle or reach a new achievement has given me immense satisfaction.  Sadly, lawyers have become the punch line to a bad joke in too many people’s experience.  For many lawyers, the pressure to make more money has forced choices that have harmed the reputation of a once noble profession. Yet, many of us continue to seek the higher plane where the client comes first and the satisfaction is in a job well done, rather than the amount of the fee. I have known so many great people in my career who have given of themselves again and again to fulfill the needs of others. Being a lawyer can be so very rewarding.  For some it is measured only in the paycheck.  For many it is measured in the satisfaction felt when the clients’ needs are met….

Lastly, the practice of law has opened me to so many great people and opportunities.  I look back now and see your faces flashing before me.  Meetings, closings, council meetings, lunches, strategy sessions, board meetings.  Sharing more than just work; sharing our lives.  And for that I say – thanks for sharing.  It was truly my pleasure.

I thank him for his years of service and professionalism.  I enjoyed my brief interactions with him, and appreciated his wisdom as he moved on to other ventures in life.

I wish him the best.

Ivy Pointe Title, LLC, our title company serving residential and commercial Realtors, lenders, investors and buyers, has a great series on the fundamentals of title insurance.  Read them here.

For more information on title insurance or for your real estate legal needs, contact Rick Turner ([513] 943-5661) or Isaac Heintz ([513) 943-6654).

Please follow us on Facebook, LinkedIn and Twitter, and read our blog at finneylawfirm.com for developments in the law relevant to your business, your real estate practice or and your personal affairs.

We endeavor to have fresh, current, informative content each week to advance your professional and personal life.

If there’s a topic that would interest you for these forums, let us know that as well.

We recently completed a litigation project for a commercial client to extinguish a Land Installment Contract where the buyer was in default and the owner wanted to lease or sell the property to another party by judicially extinguishing the buyer’s rights under the Land Installment Contract.

As a starting point, this article explains, in seller financing situations involving real property, there are several options available to structure and document the transaction.  As we explain, a Land Installment Contract is more difficult to extinguish than a lease with option to purchase, but less involved than a foreclosure action under a note secured by a mortgage against the property to be sold.

Thus, in the specified assignment, we proceeded with an action for “forfeiture” in Common Pleas Court before Hamilton County Judge Beth Myers.

Ohio’s Land Installment Contract statute requires that a foreclosure action be pursued in situations where the buyer has made payments under contract for more than five years or paid more than 20% of the principal portion of the purchase price.  O.R.C. Section 5313.07.  (In such case, the buyer is then entitled to any excess of the sale price from foreclosure sale over the remaining balance of the purchase price under the Land Installment Contract.)  However, Ohio Courts have found that this protection extends only to residential purchasers, and does not protect buyers in commercial real estate transactions.  See, e.g., P.M.D. Land Co. v. Warner Realty, 2009-Ohio-6704 (11th Dist., 2009).

Therefore, simple judicial action for “forfeiture” of the rights of the buyer is called for in a commercial setting.  It is not a truncated, expedited proceeding such as an eviction, but it is far less involved than a foreclosure action would be, and vests fewer rights in the buyer.

As it turns out, in our case the buyer defaulted and we then were able to quiet title in the name of our client, the property owner, the Land Installment Contract was judicially extinguished, and the title was thus quieted in favor of our client, freeing him to lease or sell the property to another tenant or buyer.

 

 

 

Consider — really consider — how bold the drafters of the First Amendment must have been, to thrust a new nation into the hitherto entirely uncharted waters of unrestrained free speech.  Certainly, among the Founding Fathers there must have been someone concerned with the havoc wrought upon government and society by these radical notion of freedom of speech, freedom of association, freedom of religion and freedom on conscience.  Yet there were no “if”s or “but”s in the First Amendment; it was written in absolutist terms.

Thus, it is interesting to see in today’s New York Times that some are complaining that “its the wild west” in terms of enforcement of campaign finance laws by the Federal Elections Commission.  Read it here.  That is entirely consistent with the First Amendment, isn’t it?

Now, don’t get me wrong.  I have had a case pending before the FEC for now 43 months (not a typo) awaiting a decision.  The agency should be embarrassed that it can’t reach a decision in even that ridiculous timeframe on an essentially agreed set of facts.

But the big picture that the FEC has stopped interfering in elections seems to us possibly consistent with the “Spirit of ’76.”

I was recently at a social forum with attorneys and Judges and three separate participants made some reference to our firm tag line of “Making a Difference.”  I am thrilled that the marketing thrust  seems to have penetrated with the legal community, and indeed with our client base as well.

This is so because to me “Making a Difference” is more than just a tag line, but rather embodies the objective each of our professionals has as we approach legal opportunities and challenges — “how can we provide value to the client in this assignment?”

The practice of law is a challenging discipline, and can devolve into the rote provision of services in exchange for an hourly rate.  It can be difficult, given the inefficiencies and vicissitudes of the legal system, to provide a positive net outcome for the client in litigation, or even in transactional services.

Thus, we have attuned our professionals to strategize and to discuss with the client — from the intake of the case forward — how we can structure the relationship, proceed with the case, and bring it to conclusion, in a manner that limits the client’s risk and maximizes his return.

Our tag line, which is becoming familiar to the Cincinnati and northern Kentucky community, is at the heart of our aspiration in each case we undertake.  Please let us “Make a Difference” for you.