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Real estate seller financing: So many options; what do they mean?

Author By Christopher P. FinneyPosted on

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.

 

 

House Bill 343 aims to eliminate teacher salary schedule

Author By Bradley M. GibsonPosted on

House Bill 343, which addresses a number of education issues, is currently  pending in the House Education Committee. On November 13, 2014, a provision was addedto the Bill to eliminate the minimum teacher salary schedule from state law. Under the current law, the minimum salary schedule provides a framework for paying teachers commensurate with their experience. Critics of the minimum salary schedule have long pushed for a merit-based salary system under which teachers would receive salary increases based on performance rather than experience. Proponents of the salary schedule argue that it aids low-income districts in attracting teachers, and helps prevent discrimination. Teacher pay remains a divisive issue and there is sure to be opposition from democrats and teacher unions as the Bill moves through the General Assembly. The Bill must pass through the House and Senate before it can become law, and will likely be amended a number of times before it reaches the Governor’s desk. We will be following House Bill 343 as it makes its way through the legislature.

A guide to simple estate plan

Author By Isaac T. HeintzPosted on

Preparing the appropriate estate plan for an individual requires the legal skills of an attorney to put together the right documents in the right combination.  At a minimum, the following estate planning documents are recommended by most attorneys:

Last Will and Testament.  A Last Will and Testament is a legal declaration that directs the distribution of probate assets upon the death of an individual (“testator”).  Probate assets are assets held in an individual’s name at the time of his or her death that do not otherwise transfer by contract (e.g., transfer on death designations, joint and survivorship, etc.).

Probate assets are subject to the oversight of Probate Court and administered in the County in which the decedent resided at the time of death.

The Last Will and Testament includes a provision for the designation of the personal representative (Executor) of the testator’s choosing, to be appointed by Probate Court.

Without a Last Will and Testament, the property passes in accordance with the Ohio Statutes of Descent and Distribution.

Durable Power of Attorney.  A durable Power of Attorney is an instrument by which one person (the principal) appoints another person (the attorney-in-fact) as an agent authorized to perform specific or general acts for the principal.  This financial power of attorney can be a very simple document, but one that gives significant powers to the attorney-in-fact.  This estate planning tool is capable of facilitating the management of an individual’s affairs during incompetence.

 Durable Power of Attorney for Health Care.  Ohio law permits an individual to execute a Durable Power of Attorney for Health Care.  With this document, an individual can designate a person to make health care decisions if the individual is unable to make such decisions on his or her own behalf.

The individual signing the Durable Power of Attorney for Health Care must be of sound mind.  The decision maker may not be the attending physician or the administrator of any health institution involved in the patient’s care.

Generally, the person appointed in the Durable Power of Attorney for Health Care will have the authority to give informed consent, refuse to give informed consent, and to withdraw consent for any medical treatment.  However, the person holding the Power of Attorney will not be able to refuse or withdraw consent to health care needed to maintain life, except in very limited circumstances.

Living Will.  A Living Will is a document that provides a means for an individual to declare his or her intentions regarding the withholding or withdrawal of life-sustaining treatment, including CPR, when he or she is no longer competent to make an informed medical decision and is in a terminal condition or a permanently unconscious state.

Ohio’s Living Will law distinguishes between patients who are terminally ill and those who are permanently unconscious.  Although both conditions must be verified by two (2) doctors, in Ohio there are additional protective measures for the permanently unconscious.  Food and water may not be withheld from a permanently unconscious individual unless the patient has signed a Living Will with a special section in capital letters, which special section must be signed or initialed.

Under no circumstances may an individual be denied comfort care.  Comfort care is defined as the minimum amount of care administered to alleviate pain and suffering, but not to prolong life.

Ohio Bar pass rate lowest in years

Author By Christopher P. FinneyPosted on

This article from our friends at Kegler, Brown, Hill + Ritter addresses the record low pass rate for Ohio’s Bar exam.  Is it a policy to make it tougher to be admitted in Ohio or a less-prepared crop of students?  The fact that the trend from 2009 to 2013 was consistent would militate against the former and in favor of the latter.  It may also be an outlier.

In any event, we need attorneys well prepared for the rigors of the profession.

Smitherman ethics Complaint tossed

Author By Christopher P. FinneyPosted on

The Finney Law Firm was retained to represent Councilmember Christopher Smitherman in the matter of an ethics complaint that was filed against him by a Cincinnati attorney arising from the Mahogany’s loan default.  This week, that ethics complaint was dismissed as being entirely without merit.

The background to the matter is that in early 2012 the City made significant loans and grants to Mahogany’s Restaurant in order to bring an African-American-owned and -themed restaurant to the Banks.  Smitherman realized from the initiation of the project that the operator (Liz Rogers) was not qualified for an extension of City credit.  Unbeknownst to Smitherman, before his vote on Council, Rogers had approached his brother (Albert Smitherman) for some advice about how to complete the construction project, which Albert provided without charge.

After Rogers’ default on the loans, her attorney pointed the finger at Smitherman, claiming (falsely) that Smitherman’s votes and public pronouncements against the project were because Rogers has been approached by and later spurned Albert Smitherman’s company.  The allegations were completely and demonstrably false.

This year, after Rogers’ loan default, Rogers’ attorney filed a Complaint with the Ohio Ethics Commission containing the false allegations, presumably to achieve some benefit in getting City Council to forgive her loans.

The Ohio Ethics Commission has a multi-step process to consider Complaints brought before it: staff review, initial Commission review, investigation and final disposition.  The Smitherman Complaint was so completely lacking in merit, it was dismissed at the very first stage — staff review.

The Finney Law Firm was proud to represent both Christopher Smitherman in the ethics matter, and Albert Smitherman in the allegations made against his company.

Moving the debate over campaign honesty to where it should be: Court of Public Opinion

Author By Christopher P. FinneyPosted on

For decades, campaigns in Ohio have battled over the supposed truth or falsity in campaign advertisements before a 7-member panel of political appointees of the Governor, the Ohio Elections Commission.

Because of important wins of the Finney Law Firm and other able counsel, the jurisdiction of the Elections Commission to weigh in on such disputes has been substantially narrowed in recent months, moving that debate to where it should be — in articles in the media, in conversations at the neighborhood bar, and between campaigns to duke it out in their earned and paid communications .

However, finally the jackboot of the Elections Commission has been lifted from our throats.

Read here a story in this vein from the Columbus Dispatch.  This is as it should be.

Finney Law Firm notches another First Amendment win

Author By Christopher P. FinneyPosted on

The second in a series of cases arising from the twin wins of the Finney Law Firm at the United States Supreme Court came back before Judge Michael Barrett two weeks ago on cross motions for summary judgment (the Supreme Court proceeding having resolved only the standing issue).

This second case, COAST v. Ohio Elections Commission, addressed whether the Ohio Elections Commission — a politically appointed body — can sit in judgment of statements made during the course of a ballot issue campaign.

Yesterday, Judge Barrett decided they cannot — at least preliminarily, finding that the Plaintiffs have a high likelihood of success on the merits of the case.  Judge Barrett’s short decision on Plaintiffs Motion for Preliminary Injunction, is here.   Judge Barrett has promised a longer decision on the motion for permanent injunction at a later date.

This decision follows closely on the heels of the decision by Judge Timothy Black in Susan B. Anthony List v. Ohio Elections Commission striking  down a companion statute in Ohio allowing judgment and punishment by the Ohio Elections Commission of statements made during campaigns for candidates for public office.  His decision permanently enjoining that statute is here.  The Ohio Elections Commission has appealed that decision to the 6th Circuit, and it is possible that one or both of these cases will end up before the U.S. Supreme Court again.

We will keep you informed of developments in these two cases as they occur.

 

 

Collecting rent during an eviction action: the distinction between past due and future rent payments

Author By Bradley M. GibsonPosted on

Most lease agreements require the tenant to pay rent on the first of the month to secure her right to occupy the property for the remainder of that month. This is referred to as a future rent payment. Nonpayment of rent is the most common cause for a landlord’s decision to file an eviction proceeding. By the time a landlord decides to pursue an eviction, it is quite often the case that the tenant is three or more months behind on payments. During the course of the litigation, the tenant typically falls further behind on payments. The tenant then owes past due rent, for liability already incurred, in addition to the normal future rent payments. Sometimes the tenant offers to bring his past due delinquency current, and resume making future rent payments to the landlord. The question that then confronts landlords is whether they may accept payments from the tenant and lawfully continue forward with the eviction proceeding at the same time.

Recently, in Urban Partnership Bank v. Mosezit Academy, Inc., the Eighth District Court of Appeals of Ohio highlighted the important distinction between a landlord’s acceptance of past due rent and future rent payments during an eviction proceeding. In this case, there was no dispute that the tenant breached the lease by failing to make the monthly payments. The trial court terminated the lease and ordered the tenant to vacate the property.

The tenant appealed the trial court’s decision, and argued that the landlord waived its right to eviction by accepting rental payments during the eviction process. On review, the Eighth District Court of Appeals noted that an eviction cannot proceed if the landlord has waived the notice to vacate. It further stated that it is a generally accepted rule in Ohio that a notice to vacate is deemed waived as a matter of law if the landlord accepts future rent payments after serving a notice to vacate. In contrast, if the landlord accepts payment for past due rent, the landlord does not waive the notice to vacate. In this case, there was no evidence that the tenant’s payments to the landlord during the eviction proceeding were for future rent. Accordingly, the appellate court upheld the trial court’s decision that the landlord did not waive its right to eviction by accepting the past due rental payments during the case.

This case should remind landlords that if they accepts future rent payments while pursuing an eviction, the notice to vacate will be deemed waived and the eviction should be dismissed. On the other hand, landlords are permitted to collect past due rent during an eviction case. Landlords must be prepared to argue this point to the judge in the event that the tenant moves for a dismissal of the eviction based on the payment of past due rent.

The Finney Law Firm has extensive experience in both residential and commercial leasing disputes. Please contact our office if you have any questions about current or prospective leasing arrangements.

Two Tea Party v. IRS suits dismissed, one on appeal. Only ours is proceeding to discovery.

Author By Christopher P. FinneyPosted on

There were four major cases originally filed relative to the harassment and delays sustained by Tea Party and liberty-oriented groups in seeking 501(c)(3)and 501(c)(4) status.  Three were filed in the Federal District Court for the District of Columbia, and one was filed in the United States District Court for the Southern District of Ohio.  It is this last case in which the Finney Law Firm is co-counsel.

Today, Federal District Court Judge Reggie Walton dealt a blow to the Plaintiffs in two of those cases after the IRS finally granted tax exempt status to the remaining Plaintiffs, ruling the matter moot, and thus dismissing both Complaints.  Those decisions are here (True the Vote, Inc. v. Internal Revenue Service) and here (Linchpins of Liberty v. United States).

In the third case, Z Street v. John Koskinen (the Plaintiff is a pro-Israel group harassed by the IRS in a manner similar to the IRS harassment of Tea Party groups), the District Court did allow the claims in that case to survive a Motion to Dismiss, but discovery has been stayed pending the outcome of an interlocutory appeal of that decision, which could take another 18 months or more.

However, our firm’s case, NorCal Tea Party Patriots v. Internal Revenue Service, in front of Federal District Court Judge Susan Dlott, has survived a withering Motion to Dismiss from the IRS’s phalanx of attorneys and shortly will be proceeding with discovery.

Thus, while we fervently hope the three cases noted above survive their appeals and proceed to discovery and judgment, at present the Cincinnati case is the sole surviving litigation to get to the bottom of the conspiracy to deprive liberty-minded citizens of fair treatment by the IRS, to achieve justice for these targeted groups, and to enjoin the IRS from ever again singling out individuals and groups for discriminatory treatment based solely on their viewpoints.

We are proud to be a part of this landmark litigation and excited for the next steps.

 

 

 

 

 

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