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Learning a few things about real estate while developing our new offices downtown

Author By Christopher P. FinneyPosted on

Recently, the Cincinnati Business Courier was nice enough to run a photo spread of our new law firm offices and we have had hundreds of clients drive by or visit our new City-home of Finney Law Firm.  The project was more than $2 million invested in our offices and two apartments in the core of downtown Cincinnati, taking about three years to complete.

We undertook this project to invest in the City that has given so much to us, but also to deeply learn things our investor clients already know about real estate investing, financing and development, so we can share those lessons with other clients.  Here are a few things we learned:

  1. Patience is a virtue.  Things (plans, regulatory approvals, material orders and contractor work) are not going to happen overnight.
  2. Further, every project is a trade-off of three things: a) time, b) money and c) quality.  You can get two out of three, but it’s hard to get all three.
  3. You have to trust and respect your designers, architect, construction manager, contractors, materialmen, and laborers.  They know more about this business than you do.  And although I help clients address failed contractor relationships, I found the vast majority of the people I dealt with to be honest, qualified and quality-minded and very hard-working.  Indeed, they had to repeatedly push back on me (on time or money) to insist on high quality in the project execution.
  4. A lender pulled me aside as I was planning the financing of the project, and told me to avoid construction financing if at all possible.  Do it with cash.  Otherwise, the bank will be looking over your shoulder and slowing you down every step of the way.  He was right.  Avoiding that headache was key in the project’s success.  Obviously, this is not always possible, but great and unsolicited advice.
  5. The City was great to work with.  The Building Department (especially), the Historic Conservation Department, the Water Works, the Police.  At every juncture, I was awed at the cooperation and enthusiasm I received from City officials.
  6. Key incentives.  For this project, we employed key incentive packages which were incredibly valuable.
    • Cost segregation.  Again, an accountant friend told me to explore cost segregation on the project.  This is where an engineer’s study allows you to significantly accelerate deprecation on project components.  Over the years, I had heard of cost segregation studies, but I literally had no idea how incredibly valuable this approach can be, resulting in hundreds of thousands of additional early depreciation deductions.
    • Federal and State Historic tax credits.  Again, after I had purchased the building, a friend told me of state and federal historic tax credits (not deductions!).  These can pay for up to 45% of an historic project.  20% federal is more or less automatic, but the additional state credits (essentially a grant) are a competition and Cincinnati gets more than it’s fair share, so it is competitive.  We won both!
    •  City tax abatements, residential and commercial.  I had to jump thru a few hoops (cutting the building into condos and applying separately), but the City has generous (although slightly complicated) residential and commercial property tax abatement programs that every developer should get to know about.  They are readily attainable.
    • Port/Sales tax avoidance.  Our project was too small for the strategy to be effective, but another turn-key, money-saving program for County projects is to partner with the Port Authority to avoid sales taxes on all of your building components and materials.  For larger projects, it is a “must do.”

If you are embarking on a development project of your own, I am glad to share my contractor and materialmen list, the short-cuts and procedures I learned for each of project components.

 

Another win, this one in Colorado, on Free Speech (and a write up in the Volohk Conspiracy!)

Author By Christopher P. FinneyPosted on

Always topical, always timely, the Volokh Conspiracy today writes of Finney Law Firm and attorney Curt Hart’s win at a jury trial (pretty amazing thing for a First Amendment case) in Colorado Springs, Colorado.  Volokh covers it thoroughly here:  Jury Concludes Policy Banning Written Signs at School Board Meetings Was Unreasonable, Implemented in a Viewpoint-Based Way

Sincere congratulations to Curt Hartman on the big win, and for including us as co-counsel in the case.

Matthew Okiishi

Another day, another 6th Circuit Employment Law win!

Author By Matthew S. OkiishiPosted on

On Friday, July 18, 2025, the Sixth Circuit issued a ruling reversing a trial court’s dismissal of our client Matthew Warman’s Fourth Amendment unlawful seizure claim against Mount St. Joseph University and its individual police officers. Attorney Matthew S. Okiishi has served as local and co-counsel to Ron Berutti of Murray-Nolan Berutti LLC (licensed in New York, New Jersey, and Kentucky) in this matter.

Mr. Warman ‘s lawsuit alleges that, while a student at MSJU, he was invited the campus police station to discuss his refusal to take the Covid-19 vaccine on religious and medical grounds. This “meeting” quickly turned sour. Over the course of an hour, Mr. Warman was taken to a back room and told, among other things, that he was not free to leave, that he was an “[expletive] idiot,”  “should get a new religion,” that his “beliefs were wrong,” and should “grow the [expletive] up and get the shot.”

Based on these facts, the Court of Appeals held that this conduct plausibly established a violation of his Fourth Amendment rights. The Court further held that MSJU and the individual officers involved could be subject to liability as “state actors” under 29 U.S.C. §1983, and that the university and officers were not entitled to qualified immunity at this stage of the proceedings. The Court further cast doubt on whether privately employed campus police officers can avail themselves of qualified immunity. The matter has been remanded to the trial court for continued litigation.

A copy of the decision in the case styled Warman v. Mount St. Joseph Univ., et al., is linked here. The opinion has been recommended for full publication, signifying its importance and significance.

J. Andrew Gray

Small win on brokerage commission claim equals #MakingADifference

Author By J. Andrew GrayPosted on

On June 12, Judge Donald E. Oda II of the Warren County Court of Common Pleas ruled in favor of the sellers of a home, represented by attorneys Andrew Gray and Christopher Finney, dismissing claims for breach of contract and fraud made by their realtor. The sellers, a couple moving from their home in Warren County, had terminated their contract with the original realtor and eventually successfully sold their home with a new realtor. The original realtor was not paid a commission by the brokers in the transaction, and filed suit against his employer and the sellers.

Under Ohio Revised Code 4735.21, only a licensed real estate broker may file a lawsuit to collect commission or other compensation in connection with a real estate transaction, and a real estate sales person can only collect money in the name of their broker. In the lawsuit, however, the realtor, who was only a licensed real estate salesperson, only alleged his status as a realtor in the complaint.

After the Finney Law Firm and the attorneys for the broker both filed motions to dismiss the plaintiff realtor’s claims, the Court – only three days after the motion was fully briefed – dismissed the complaint in its entirety. First, all claims for breach of contract against the sellers were dismissed because seller’s contracts were with the broker alone, who brought no claims against the seller; additionally, the plaintiff realtor had no claims against sellers under R.C. 4735.21. Finally, all claims for fraud were dismissed because they were duplicates of the contractual claims.

This brings up several important points:

  • Being a “realtor” is not a status of licensure under Ohio law – it is only membership in the National Association of Realtors, or one of its local branches.
  • Licensure as a “real estate salesperson” or “real estate broker” is entirely separate from status as a realtor.
  • Any contracts that a consumer may have with a realtor or real estate salesperson are actually with the real estate broker; the real estate salesperson or realtor is only the “agent” of the broker.

The result may seem unfair at first but, upon reflection, the policy reasons for R.C. 4735.21 are relatively simple. Real estate brokers have a variety of salespersons in the field, showing, selling, leasing real estate. However, all of those funds are ultimately the responsibility of the broker themselves. In a real estate transaction, all funds are transmitted through the brokers; so, when a real estate salesperson is entitled to a commission, the payment of that commission is truly a matter between the broker and the salesperson, not between the salesperson and the parties to the transaction. R.C. 4735.21 is intended to prevent the employment compensation disputes between the brokers and salespersons from involving the parties to the transactions, which can range from large companies to individuals buying, selling, or renting a home.

Regardless of the reasoning, the case represents another victory and successful result for our clients.

 

Finney Law Firm Secures Major Victory for Ohio Taxpayers and Small Businesses

Author By Rebecca L. SimpsonPosted on

This week, Governor Mike DeWine signed Ohio’s state operating budget into law—marking a major win for Ohio taxpayers and small businesses, thanks to the dedicated efforts of Finney Law Firm and our client, the Ohio Deputy Registrar’s Association (ODRA).

Many Ohioans may not realize that local Bureau of Motor Vehicles (BMV) offices are not run by the state, but by privately owned small businesses known as Deputy Registrars. This innovative, privatized model saves Ohio taxpayers more than $215 million annually, while keeping service costs low and customer satisfaction high. For example, registering a 2024 Chevy Blazer in Ohio costs just $36 to $66—compared to $300 in Kentucky and over $400 in Indiana.

But this successful model has been under strain. The fees Deputy Registrars earn per transaction are set by state statute and have not kept pace with rising labor and operating costs. As a result, some local BMV offices have been forced to close, leading to longer drives and wait times for Ohio residents.

On behalf of ODRA, Finney Law Firm led a months-long, statewide advocacy campaign to secure a $3 fee adjustment for Deputy Registrars. Our approach combined direct legislative advocacy with strategic grassroots and grasstops mobilization, training Deputy Registrars across Ohio to engage their communities and legislators.

The result: a bipartisan policy solution that stabilizes the Deputy Registrar system, preserves a cost-effective service model, protects access for Ohioans, and continues to save the state millions.

I had the privilege of serving as Finney Law Firm’s lead on this initiative, working closely with ODRA and dozens of small business owners across the state. This victory reaffirms what we believe is the most effective model for state and local policy change: a combination of expert legal and policy strategy, direct advocacy, and strategic grassroots and grasstops advocacy.

Rebecca Simpson is an attorney and seasoned government and public affairs strategist at Finney Law Firm. If you need support with community engagement, coalition building, or advocacy at the state or local level, you can reach her at Rebecca@finneylawfirm.isoc.net.

 

Judge Patrick Dinkelacker rules Finney Law Firm client has prescriptive easement over portions of proposed Hyde Park Square development

Author By Christopher P. FinneyPosted on

Judge Patrick Dinkelacker this week issued a ruling in a case that has been simmering since December of 2024 in favor of our client, Lee Robinson, recognizing our client’s right to what Ohio law references as a “prescriptive easement” over portions of property on which a developer had planned to place retail shops, a boutique hotel, apartments and an underground parking garage.

The decision establishes our client’s right — acquired by usage and by operation of law (see below) — to have vehicular ingress and egress over portions of the developer’s property, meaning his accessway must be maintained as it is, and the grade of the entrance to our client’s parking lot must stay the same.  Since the developer’s plan were to engage in construction activity blocking the easement area, and it planned to place buildings in the easement area and change the grade of the easement relative to our client’s parking lot, the developer is effectively prevented from moving forward with currently-planned development.

It is generally a surprise to lay persons (and some attorneys), but one can gain ownership of another’s property in most states (if not all), including Ohio and Kentucky, by continued occupancy and use of the property for a protracted period of time — in Ohio 21 years and in Kentucky 15 years.  In law school we learn the five required elements to achieve this end as O.C.E.A.N.: Open, Continuous, Exclusive, Adverse and Notorious use and occupancy of the property.  If proved, in Ohio by “clear and convincing evidence,” then the adverse possessor has full legal ownership of and title to the property.

A stranger to title can also acquire the lesser right of “easement” over another’s property by eliminating the “exclusive” part of the adverse possession requirements, so O.C.A.N, for the same 21-year period in Ohio, to establish what is known as a prescriptive easement.  This easement is every bit as good or better than an easement given by express grant, and (for example) passes with title  to the property benefitted by the easement.

It was precisely this type of “prescriptive easement” benefiting Finney Law Firm’s client’s property on Hyde Park Square that Judge Dinkelacker recognized by his decision this week.

The team that prepared and tried this case (the preliminary injunction hearing) were Christopher Finney, Julie Gugino, J. Andrew Gray, Mickey McClannahan, and Emma Friedhoff, among others, greatly aided by Steve Griffith of Taft Law.  Our expert witness at trial was noted Clermont County attorney and title insurance agent Doug Thomson.

You may read the whole decision here: Robinson Decision

Matthew Okiishi

Supreme Court Lowers Burden for “Reverse Discrimination” Cases

Author By Matthew S. OkiishiPosted on

Prior to June 5, 2025, an employee suing for discrimination in this Circuit was required present a prima facie case showing  that: 1) they belong to a protected class; 2) they were qualified for the job; 3) they experienced an adverse employment action; and 4) the employer treated similarly situated employees outside their protected class more favorably. But members of a “majority-group” (think: White, male, heteronormative, and/or Christian) suing in the Sixth Circuit was required to show an additional element, namely that there were “background circumstances” that his was the “unusual” employer that discriminated against the majority. 

Now, however, the Supreme Court of the United States has reversed this longstanding requirement. Writing for a unanimous court in in Ames v. Ohio Dept. of Youth Services, No. 23-1039, Justice Ketanji Brown Jackson found that this rule “cannot be squared with the text of Title VII or prior precedent.” The Court reasoned that because Title VII bars discrimination against any individual on the basis of protected characteristics and does not distinguish between minority or majority groups, there is no room under the statute for a special pleading or proof standard to be imposed on majority-group plaintiffs. 

Without the heightened “background circumstances” requirement, majority-group employees who believe that they were discriminated against on the basis of their race, gender, national origin, or religion only have to prove the same prima facie case as minority employees.

Whether juries will need to be “sold” on the idea that “reverse discrimination” is possible remains to be seen. But for now, the path for majority-group employees to reach a jury trial has been made easier.

Ohio Property Tax Valuation: Increase in interest rates alone does not void application of recent sale

Author By Christopher P. FinneyPosted on

As attorney Casey Jones of this firm wrote last year, a recent arms length sale of real property generally is — under Ohio law — the best evidence of the value of property for tax purposes.  If that’s what you paid, that generally is the value for property tax purposes.  And rebutting that sale price as the taxable valuation can be very difficult.

Further, as I wrote in 2022, that reality hit a purchaser of an apartment complex in Clermont County when he got a whopping valuation increase of $26 million increase in valuation and a retroactive tax increase — post closing — of $682,000.  Ouch.

Well, that apartment-purchasing property owner appealed its property valuation for 2023 (only 18 months after the closing) seeking after-the-fact tax relief, arguing that the sudden rise in interest rates increased the rate of return investors expect from apartment properties, and therefore the value of the property fell from the 2021 sale price.

The Ohio Board of Tax Appeals disagreed and just issued its decision for that 2023 tax year — it retained that value at $32.600,000.  Ouch, again.

You may read that decision here.

Benefits of Attorney Representation in the North Bend, Ohio Hillside Development Case

Author By Christopher P. FinneyPosted on

We are pleased to present this blog entry from guest author, Eric Russo, executive director of The Hillside Trust, a non-profit organization dedicated to the preservation and thoughtful use of our region’s hillsides. Eric has served this organization for over 35 years. His opinion is not a paid endorsement of the Finney Law Firm. Rather, he has worked with multiple other highly qualified land use attorneys that have helped deny or overturn various hillside developments that have posed threats to their communities.

 ______________________

On February 3, 2025, the North Bend Planning Commission voted 4-0 against a hillside development proposed above St. Annes Dr in the Aston Oaks Community.  The residents of St. Annes hired the Finney Law Firm and worked in opposition with The Hillside Trust.

I have been involved in scores of hillside development reviews throughout the Greater Cincinnati and Northern Kentucky region.  The Hillside Trust often testifies in these cases when it determines that a project presents a host of issues that are detrimental to the geological integrity of a hillside and/or to the safety of the surrounding community. It provides this testimony free of charge as a public service.

There are instances where an impacted community has reached out to The Hillside Trust seeking its expertise, particularly when a development is posing an environmental threat.  One of my first recommendations in these situations is to encourage the community to engage the services of a qualified land use attorney. My reasoning is simple. When you have expert legal representation, two things will happen.  First, your side is allotted the requisite time to present all arguments against the development.  Often this will include legal matters related to land use and zoning that are less familiar to the lay person.  Having additional time on your side will be an added benefit, considering that both proponents and opponents alike are usually allotted a set amount of time to testify, typically ranging from 2 minutes to 5 minutes per person.  Second, your attorney is afforded the opportunity to cross-examine the testimony of the development team’s professionals, just as his or her attorney can cross-examine the witnesses of its opponents. Based on my experience, when a developer has legal representation, and opponents do not, the decision invariably will side with the developer.

I commend the neighbors of St. Annes Dr for investing in attorney representation to protect the financial and environmental interests of their street. The North Bend Planning Commission hearing lasted well over 4 hours, including a three-hour Power Point presentation of expert witness testimony coordinated by Rebecca Simpson, an attorney with the Finney Law Firm. I have no doubt this expert legal representation aided in the ultimate denial of this environmentally consequential hillside development.

As the real estate market continues to escalate in value, there are substantial profits that will be made from development.  Consequently, developers are building attorney fees into the costs of doing business. Short of owning the piece of development property in question, a community’s best tactic is to have legal representation by an experienced land use attorney.  It does not guarantee they will win the case. However, their concerns will be represented far more equitably in their quest to level the playing field of administrative review.

Eminent Domain and Transportation/Utility Easements

Author By Casey A. JonesPosted on

Scenario:

You own a home or commercial property, and you receive a letter from the Department of Transportation, Duke Energy, or another utility provider seeking a temporary or permanent easement over your property for purposes of constructing a utility pole, water lines, traffic signals, etc.

Do you have to agree? What are your options?

The reality is that if a governmental or public utility company wants an easement over your property, they will – in almost every circumstance – get it, through litigation if all else fails. However, that does not mean that you have to agree to everything they are asking of or offering to you.

The easement sought may be a “taking” (on a temporary or permanent basis) of the right to use your property as you wish, the right to access certain areas of your property, or of parking spots for your customers. It could mean lengthy construction that may deter customers or make it difficult to see or access your business. Each of these situations have a value, tangible or otherwise, to you as the property owner.

Given the likelihood of the requesting entity eventually obtaining the easement (i.e., the right to use the property) that it seeks, via eminent domain proceedings or otherwise, attempting to fight the “taking” through litigation may or may not be the best option or strategy for you. If you have received one of these letters or “offers,” we would be happy to discuss your options and whether there are certain terms that we should focus on for purposes of negotiation. We have had great success with negotiating compensation (netting the client substantially more, even accounting for any legal fees) and/or addressing concerns over potential damage to the property, ensuring that the client is afforded adequate protections so that they will be made whole in such event, among other concerns.

Temporary or permanent easements can have a lasting impact on you, your property, and your business, and it is important to make sure you are covering your bases in negotiating reasonable and favorable terms, ensuring as much protection as possible, and yes – receiving adequate compensation. We understand this, as do the companies seeking the easement. They are generally receptive to negotiating the terms so that the parties can have an amicable agreement in place to allow the necessary improvements, while minimizing any adverse effects to the owners’ ability to use and prosper from their property. However, it helps to have an experienced attorney on your side to help advise you and present your negotiated terms in a manner most likely to be effective.

For assistance in assessing your options or negotiating easements, please contact Casey A. Jones, Esq. at casey@finneylawfirm.isoc.net or (513) 943-5673.

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