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Category Archives: Miscellaneous

New construction: The problem of “what” is to be built

Author By Christopher P. FinneyPosted on

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

Indemnities and Warranty Deeds: Open-ended access to your checkbook

Author By Christopher P. FinneyPosted on

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.

Wise words from a retiring attorney

Author By Christopher P. FinneyPosted on

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.

Chock full of good legal updates!

Author By Christopher P. FinneyPosted on

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.

Extinguishing a Land Installment Contract where the buyer is in default

Author By Christopher P. FinneyPosted on

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.

 

 

 

FEC Enforcement: “It’s the Wild West out there.”

Author By Christopher P. FinneyPosted on

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.”

What we mean by “Making a Difference”

Author By Christopher P. FinneyPosted on

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.

Chris Finney to speak Tuesday night at Beyond Civility event on Religious Liberties/Women’s Rights

Author By Christopher P. FinneyPosted on

Tuesday night of this week, Finney Law Firm founder Chris Finney and Jennifer Branch of the law firm of Gerhardstein & Branch will discuss recent legal developments in the area of Religious Liberties and Women’s Rights before the ground-breaking community forum Beyond Civility.

The Back-to-Back series hosted by Beyond Civility asks participants to debate a controversial topic from a position different than that which they would normally advocate.  This session addresses the twin Supreme Court decisions from last session in Burwell v. Hobby Lobby and Wheaton College v. Burwell.  

Jennifer Branch, who sits on the Board of Planned Parenthood, Southwest Ohio region will take the “”conservative” position in favor of the Hobby Lobby and Wheaton College decisions, and Chris Finney, co-founder of the Coalition Opposed to Additional Spending and Taxes (COAST), will take the opposing position.

The successful Back-to-Back series hosted by Beyond Civility has featured prior programs such as:

Beyond Civility’s distinguished Board of Directors is here.

To RSVP to attend Tuesday Night’s free event, which offers CLE credits, click here.  Click here to obtain CLE credits.

6th Circuit rules on defamation portion of Susan B. Anthony List case

Author By Christopher P. FinneyPosted on

In yet another important First Amendment decision emanating from the case of Susan B. Anthony List v. Driehaus, the 6th Circuit Court of Appeals today upheld the decision of the trial court granting summary judgment to the Susan B. Anthony List on the defamation claim portion of the litigation.  That decision is here.

As background, the matter commenced with an administrative proceeding before the Ohio Elections Commission, where Congressional Candidate Steve Driehaus claimed that the Susan B. Anthony List made certain false statements in the 2010 Congressional election, namely that Driehaus supported legislation that included the spending of taxpayer monies for abortion.

The Susan B. Anthony List then proceeded into Federal Court, claiming that prosecution under Ohio’s “False Claims” statute violated its First and Fourteenth amendment rights.  That matter eventually ascended to the United States Supreme Court on standing grounds, wherein Plaintiffs prevailed 9-0 and the matter is now proceeding before the 6th Circuit on appeal on the substantive issues.

But Driehaus filed a counterclaim in the Federal action, claiming that the statements of the Susan B. Anthony List defamed him. District Court Judge Timothy Black initially sided with Driehaus in allowing the defamation claim to proceed to trial, but later reversed himself and dismissed the case on Summary Judgment initiated by Susan B. Anthony List.

That ruling on the Summary Judgment was on appeal before the 6th Circuit and is the subject of today’s opinion wherein the 6th Circuit sustained the ruling, but on alternate grounds.

It is an important First Amendment and defamation law pronouncement from the 6th Circuit.

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