Category Archives: Residential Real Estate

A 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.

It’s old news, as the law was enacted in 2000, but we are asked this from time to time: Are electronic signatures just as enforceable as physical or “inked” signatures?

Yes.  The Electronic Signatures in Global and National Commerce Act (ESIGN) passed in 2000 specifically proves that a contract or signature “may not be denied legal effect, validity, or enforceability solely because it is in electronic form.”

Many of those engaging in commerce of all sorts are commonly using electronic signatures today, including on real estate contracts and other documents.  Documents that require an “acknowledgement” or “notary seal” still must be signed in-person, but otherwise, the act makes the e-signature just as effective.

Because of proof of signature, there may still be instances in which we want personal signatures, but for many of not most commercial arrangements, e-signatures suffice.

 

In 2008 two firefighters perished while answering an emergency call to a house fire in Colerain Township.

Investigators determined the source of the fire was a fan used in a basement orchid cultivation room. In another part of the basement was a marijuana cultivation room. The family of one of the firefighters brought a wrongful death suit against the homeowner alleging that the orchids were being used as a subterfuge to camouflage the illegal marijuana operation. The suit also included claims against the manufacturers of the radio and other equipment used by the firefighters.

In Ohio, property owners are generally immune from liability for such suits. The “Firefighter’s Rule” is a judicial rule that provides a general immunity to property owners from liability to injuries or death to firefighters incurred in the call of duty.

Imagine if a property owner was afraid to call 911 to report a fire for fear of being sued if the firefighters were injured. As a society, we want to encourage people to report fires and utilize our emergency services to combat fire. Indeed, we spend a great deal of money to provide those services and make sure that firefighters are prepared to fight fires. We teach our children to dial 911.

Firefighting is a dangerous job; that danger is accounted for via financial compensation and benefits, as well as life insurance for the firefighter’s family.

The Firefighter’s Rule provides four exceptions to the broad immunity for property owners: (1) where the injury resulted from the owner’s willful or wanton misconduct or affirmative negligent act; (2) where the injury is a result of a hidden trap on the premises; (3) where the injury resulted from the owner’s violation of a duty imposed by law enacted for the benefit of firefighters; or (4) where the owner knew of the firefighter’s presence on the premises but failed to warn the firefighter of a known, hidden danger on the premises. Hack v. Gillespie, 74 Ohio St.3d 362, 365, 658 N.E.2d 1046, 1049 (Ohio, 1996) quoting Scheurer v. Trustees of Open Bible Church (1963), 175 Ohio St. 163, 23 O.O.2d 453, 192 N.E.2d 38.

In this case, the firefighter’s family alleged that the marijuana growing constituted willful or wanton misconduct, but failed to establish (a) that cultivating marijuana is per se willful or wanton conduct or (b) that the marijuana cultivation caused the firefighter’s death.

In reviewing the facts of the case and the above exceptions to the Firefighter’s Rule, the trial court found that none of the exceptions applied and granted summary judgment to the homeowners.

While the trial court’s decision may seem like harsh justice, the Firefighter’s Rule represents a public policy choice that recognizes that Firefighters have dangerous jobs, and as such, the cost of that risk is spread across the entire community and in effect “prepaid” in the form of salaries and benefits, rather than assessed against individual property owners via lawsuits after the fact.

The case is currently before the Hamilton County Court of Appeals, Case No. C 1400274.