It is a violation of Ohio license law, and likely will void Ohio Realtor agency agreements, to fail to include in such instruments a firm expiration date.  There is no limitation as to how long the term of such agreements must be, but simply that they must expire on a date certain.

O.R.C. Section 4535.18(A)(28) provides that it is a violation of Ohio license law for:

Having failed to put definite expiration dates in all written agency agreements to which the broker is a party.

For purposes of this section, an “agency agreement” should be considered any listing agreement (whether for sale or lease and whether exclusive agency agreement or exclusive right to sell/lease), any property management agreement, and any contract for buyer representation.

Our attorneys once handled a case for a client under which he had entered into a settlement agreement with a client upon the early termination by the owner of a listing agreement. As a compromise, the Realtor agreed with the owner that whenever the owner decided to again place the house not he market, it would be with the subject Realtor.  The problem was that the Realtor did not list a definite expiration of the right to list, and thus, arguably, the agreement violated the referenced code section.

So, on standard listing agreements and non-customary agreements to list property for sale or lease, all must have definite expiration dates in them.

 

In NDHMD, Inc. v. Cuyahoga County Board of Revision, et al., 2015-Ohio-174, the Eighth District Court of Appeals reviewed the finding by the Cuyahoga County Common Pleas Court that the surplus land auction conducted by the Cuyahoga County Auditor constituted an arm’s length transaction.

In 2009, the County Treasurer foreclosed on a property for delinquent taxes. Two attempts at auction failed, resulting in the property being turned over to the state. In March, 2010, the County Auditor placed the property for sale as part of a surplus land auction. The auction was conducted on March 24. One week later (but prior to the filing of the executed deed) the winning bidder (at $1,500) filed a challenge to the property valuation with the Board of Revision.

At the Board of Revision, the value was reduced from $963,300 to $444,720. The owner appealed that decision to the Cuyahoga County Court of Common Pleas, which upheld the BOR decision. The owner then appealed to the Court of Appeals, which ruled that because the challenge to the BOR was filed prior to the recording of the deed, the owner did not have standing to bring the challenge and dismissed the complaint (returning the value back to $963,300).

During the same triennial, the owner filed a new challenge for tax year 2011. Having satisfied the jurisdictional requirement of recorded ownership, the owner now faced the statutory prohibition against bringing two challenges in the same triennial absent an exception (one of which is an intervening arm’s length sale).

The Auditor argued that the surplus auction sale is not an arm’s length transaction.

Relying on the Ohio Supreme Court ruling in Olentangy Local Schools Bd. of Edn. v. Delaware Cty. Bd. of Revision, Slip Opinion No.2014–Ohio–4723, the Cuyahoga Court of Appeals found that, while an auction sales price is presumably not a voluntary, arm’s length transaction, this presumption can be rebutted.

Supporting the finding that the transaction was arm’s length was the fact that the county auditor had not been compelled to auction the property; that two prior auctions had failed, resulting in the property being transferred to the state; that the auction had been advertised; and that there were multiple bidders.

The finding that the auction constituted an arm’s length transaction was crucial for two reasons in this case. First, because NDHMD had filed a prior challenge to the value of the property (that had been dismissed on jurisdictional grounds), the sale provided an opportunity to bring the challenge at all. Second, as an arm’s length transaction, under the applicable law (since amended) the County Auditor was required to use the sale price as the true value of the property.

The final result is that a property that the County Auditor had valued at $963,300.00 was given a new value of $1,500.00, at least for the remainder of that triennial (in the most recent triennial, 2012, the value was adjusted to $170,100).

Notwithstanding the results in this case, the Court was clear that the general presumption remains that an auction price is not the true value for tax purposes.

Have a question about the County Auditor and Board of Revision Valuation Process? Contact Anna Ausman at (513) 943-6651.

 

Since our firm assists property owners in reducing the taxes on their real property by challenging the valuation placed by the County Auditor on that property, we are frequently asked “is my property valuation too high?”  Indeed, we provide a free initial assessment of property valuation to ascertain if savings might be available through the Board of Revision process.

As a starting point, “tax valuation” should follow the simple formula of “what a willing buyer would pay a willing seller for the property.”  The Boards of Revision of Ohio largely follow the same rules marketplace participants follow: Valuation should reflect the actual value.

Two fallacies about valuation:

1)  Many owners think their property must be over-valued if they experienced a significant increase in valuation from the prior triennial.  This simply is not true.  It is entirely possible the property was — and still is — significantly under-valued.  Just because a property experienced a significant — or above market average — increase in valuation means nothing.  The new valuation is compared to current parker, not prior valuation.

2)  Many property owners want to compare their Auditor’s valuation to that of their neighbors’ property.  But this is a false comparison.  What the Auditor thinks your neighbor’s property is worth is simply not evidence of value before the Board of Revision.  Comparable sales in your neighborhood, or new construction data is appropriate evidence.

 

Property owners in Hamilton, Butler and Clermont Counties, as well as major metropolitan areas in Ohio Montgomery County (Dayton), Franklin County (Columbus) and Cuyahoga County (Cleveland) all have new Auditor’s valuations on their January 2015 tax bills.  (New values will be out in Warren County next January.)  In those counties, the County Auditor has just completed its triennial (every three years) valuation for each parcel in their jurisdiction.

The new valuations, effective as of January 1, 2014, may all be challenged in a proceeding before the County Board of Revision this year, even if you previously challenged that valuation.  One of the benefits of winning a tax reduction is that the savings is guaranteed to last for at least three years, and it may well endure much longer than that.

The attorneys of the Finney Law Firm have handled thousands of tax valuation appeals, some involving tens of millions of dollars of savings, over the past decade before more than half of the Boards of Revision throughout Ohio.

Please call Anna Ausman ([513] 943-6653) for a free initial evaluation of your property to ascertain if savings may be available to you.

The U.S. Supreme Court on Tuesday ruled that homeowners had a right to rescind their mortgage loan for up to three years after the loan origination date if the lender failed to provide the requisite “Truth-in-Lending” disclosures.

The decision, Jesinoski v. Countrywide, is here.  A Reuters article on the decision is here.

The Finney Law Firm has been retained to help a community association improve the development of a massive apartment complex in its community, and to force the City of Cincinnati and the developer to comply with local zoning laws.

We were unsuccessful in having City Council reject the plan, so we filed suit in December 30th before Hamilton County Common Pleas Court Judge Steven Martin seeking an injunction against the project proceeding.  A copy of that Complaint is here.  The motion for Temporary Restraining Order is here.

The hearing on the Motion for Temporary Restraining Order is this Wednesday, January 7, 2015 at 8:30 AM.

 

How long will it be until I can buy a house again? This is one of the first questions many people ask when filing for bankruptcy and/or after losing a house to foreclosure. The common misconception, often perpetuated by creditors, is that you will never be able to buy another house or that you will not be able to for ten years. This is just not true. New programs allow debtors to purchase a home much faster than they usually think is possible.

The mandatory waiting periods to apply for mortgages backed by Fannie Mae, United States Department of Agriculture (“USDA”), or the Federal Housing Administration (“FHA”) is between one and four years depending on your situation and the type of loan you apply for.

Conventional loans backed by Fannie Mae backed loans have a longer waiting period than those backed by the FHA. Individuals who receive a discharge in a Chapter 7 bankruptcy have to wait four years from their discharge date. Those who filed Chapter 13 bankruptcy have a two year waiting period from the date of discharge. If your Chapter 13 bankruptcy was dismissed you must wait four years from the date of dismissal.

USDA loans carry a three year waiting period for a Chapter 7 discharge. During a Chapter 13, you can receive a USDA loan as quickly as 12 months after filing. You must have both court approval and evidence 12 consecutive Chapter 13 Plan payments. You are also eligible for a USDA loan one year after your Chapter 13 discharge.

The FHA’s new programs may offer the best possible solution for those who have filed for bankruptcy or lost their home to foreclosure. The FHA’s Back to Work – Extenuating Circumstances program allows borrowers to qualify for a new FHA loan just one year after a foreclosure, short sale, deed in lieu of foreclosure, or bankruptcy. This program began on August 15, 2013 and is set to expire September 30, 2016. Not everybody will qualify for this new program but it may be very beneficial for many borrowers.
Individuals can also receive an FHA loan during a Chapter 13 bankruptcy as long as that individual has made 12 months of satisfactory Chapter 13 plan payments and has the Court’s approval.

Your credit score will affect the rates you receive on post-bankruptcy mortgage loans. Your credit score will be low immediately after you file but should consistently rise as you maintain your monthly payments and do not have any further delinquent payments.

As always, please discuss any and all programs with your bankruptcy attorney before deciding on a certain course of action.

With today’s low interest rates and relatively available money from traditional commercial and residential mortgage lenders, seller financing of real estate is not the most popular alternative, but it remains an option.  This article explores the positives and negatives of the three major means of seller financing of real estate transactions.

The three major options are: (i) Lease (with option or obligation to purchase), (ii) Land Contract and (iii) deed with a note and mortgage back to the seller.  Each of the three has its advantages and drawbacks, depending on whether you are the buyer or the seller.

As a general proposition, the “risk” a seller holds is that the buyer defaults, the physical condition of the property when returned is impaired, and getting clear title back in the seller is expensive and time consuming.  From the buyer’s perspective, he does not want to improve real property and pay significant sums toward the purchase  price only to learn at later date that he has to fight to get clear title into his name.  The three instruments offer essentially a spectrum of rights from least to most in the buyer: a lease (with either option or obligation to purchase) gives the least protection to the buyer, a land contract (depending upon its terms) moderate protection, and a deed with a note and mortgage back to the seller the most protection.

Lease.  

A lease essentially gives possessory rights to a tenant in exchange for payment of rent.  Under a lease with an obligation to purchase or option to purchase, some portion of that periodic payment can be applied to the ultimate purchase price.  From a buyer’s perspective, a lease is a precarious instrument, as a default extinguishes the rights of the tenant — potentially both to occupy and buy.  Notice of default and written right to cure provisions can make the instrument more palatable for a tenant, but it is as a general rule the least favorable instrument for the tenant of the three options.

Land Contract.

 A typical land contract is simply a contract to to purchase real estate with (i) a delayed closing and (ii) possessory rights vested in the buyer until closing.  Under O.R.C. Section 5313.07, which applies only to residential property, if the buyer has paid either for five years or more than 20% of the purchase price, in the event of a default a the seller must pursue a foreclosure action, with the proceeds beyond the contract price payable to the buyer.  For commercial contracts, a simpler “forfeiture action” is available, but it still remains more involved than a simple eviction action called for with a lease.  If the instrument is placed of record, a buyer achieve some protection — perhaps greater than that under a lease — from a land installment contact.

Deed, note and mortgage.

The final method of seller financing is the delivery of a deed from seller to buyer, and taking back by the seller of a note for the payment of the remaining purchase price and a mortgage securing that payment.  This method necessarily entails vesting in the buyer the equity in the property net of the balance due the seller.  All that’s left in the seller is the right to collect payment of the mortgage balance, and whatever protective covenants are there for seller’s protection.

All three methods of seller financing involve risk on the seller that the buyer impairs title to the property through unpaid taxes, utility bills and the like, or, more likely, failure to maintain the property in the fashion that the seller anticipates.  These issues can be addressed to some extent through good contract terms and tight management of the asset, but in the end the seller will retain some risk as to these issues.

But fundamental structure of the transaction, choosing one of the three options set forth above, will dictate the relative position of the seller and buyer in that deal.

 

 

We are pleased to announce the launch today of Ivy Pointe Title, LLC and the addition to our staff of President Richard P. Turner, Patricia A. Gillespie and Evan A. Meredith.

With Ivy Pointe Title, we offer a broadened range of real estate and closing services for residential and commercial transactions in Ohio and Kentucky, allowing us to better serve our clients.

Watch for our official announcement coming soon.

Real EstateA recent Enquirer article highlighted Specific Performance as a remedy in real estate contracts. Specific Performance, as opposed to money damages, means that the judge will order the parties to a
contract to complete the contract. This is a rarely used remedy. In the case covered by the Enquirer, the seller is seeking an order from the Judge to force the buyers to go through with the sale and purchase his property.

Finney Law Firm recently represented buyers in seeking specific performance after the woman they contracted to purchase a home from informed the buyers that the she would not go through with the sale.

Our clients were beside themselves. They had hunted throughout the area for the perfect home and finally found it, negotiated and executed a contract for the home, and sold their home in reliance on that contract. Their dreams of settling into their new home were dashed in an instant.

The seller had gotten cold feet and found an attorney who suggested that there never was a valid contract because she hadn’t returned the accepted contract until a few hours after the time for acceptance set forth in the contract.

After reviewing the case law we determined that the contract was a valid notwithstanding the seller’s argument.

Explaining the costs and risks of litigation, we worked with our clients to weigh their options. They could walk away from the purchase and begin the house-hunt anew; they could offer more money in the hopes of warming the seller’s cold feet; or they could bring suit for specific performance on the contract. As with almost every case, litigation was offered as a last resort.

Ultimately, believing that the seller would not negotiate and they could not find a comparable home, our clients decided to sue to enforce the contract.

It took thirteen months to get to summary judgment, but eventually we prevailed and Judge Nadel ordered specific performance of the contract (for the first time in his judicial career).

After Judge Nadel ordered specific performance we were able to negotiate a settlement payment for damages and attorney fees and finally close on the sale. We’ve never seen two people happier to sign mortgage documents.

Let us know how we can make a difference for you and your real estate needs.