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What quality of title are you getting in that real estate contract?

Author By Christopher P. FinneyPosted on

The essence of a real estate contract is an exchange of (i) cash from the buyer for (ii) some conveyance of title, and some quality of title from the seller.  Certainly, there are many other provisions of a contract that are important and we review each of these, but the exchange of money for title to real estate is the core transaction taking place.

When I review a purchase contract, the first place my eyes go, is asking “what is the standard of title, the quality of title that the seller has to convey to the buyer.”  The standards in the “industry” are markedly divergent on this issue (there is no legal requirement of the minimum quality of title to be conveyed; it is a matter of contact).  The most common standards are:

o   Good, clear and marketable title, subject to “no” exceptions.  This quality of title basically does not exist for most properties located in an urban area because of subdivision covenants, utility easements, and other standard encumbrances.

o   Good, clear and marketable title subject to such exceptions as will not interfere with the use and enjoyment of the property for its intended use (e.g., residential  retail, manufacturing, etc.).  This is the most common form of residential title provision and this is the provision presently in the standard Cincinnati Area Board of Realtors contract.  As a practical matter this provides the buyer the right to object to title matters through the closing.

o   The Buyer checks the quality of title and within a number of days approves the quality or rejects the quality, terminating the contract.  If he does not reject title exceptions within “x” number of days, he is bound to accept them.  This is the type of title exception most common in commercial real estate contracts.

These provisions are fundamentally different standards that, depending on the circumstances, could materially affect the buyer’s rights under the contact.  (There are other standards as well; each contract may be different.)

I once appeared before a Judge who posited to me that Ohio’s Marketable Title Act,  R.C. §5301.47, et seq., dictates as between a buyer and a seller the quality of title that must be conveyed at the closing.  This is unquestionably a misapplication of the statute.  Ohio’s Marketable Title Act defines marketable title as an objective standard.  This may be helpful for interpreting contract provisions relative to the quality of title to be conveyed (i.e., if the parties promise one another that marketable title is what will be delivered, or perhaps the standard in the absence of a contractual provision), but the contract itself will define what the parties have promised one another and are therefore obligated, respectively, to deliver and accept.

Each buyer and seller should carefully consider the consequences of the title covenants in a contract, because those covenants will dictate how they must proceed thereafter and their relative rights and responsibilities under the contract.  This typically is the centerpiece of the relationship under a real estate contract.

You have been notified to show up for Jury Duty. Do you have to show?

Author By Christopher P. FinneyPosted on

Occasionally, we get calls from clients who have received a notice from the Courts to show up for Jury Duty.  Usually, they relate that they have busy lives and responsibilities and don’t want to take time to serve.  Do they have to appear?

First, from a legal perspective, yes, you do have to show.  The summons form the Court is a legal notice that is ignored at your peril.  You could be arrested and serve time for contempt of Court if you fail to comply.

Second, if the dates you have been summoned to Jury Duty are temporarily inconvenient, it can be fairly easy to schedule your service to another time.  This is because the Jury Commissioner is glad to have cooperation from responsible citizens.  It is, of course, responsible citizens who have jobs, civic responsibilities, and family obligationss and it is that type of citizen that the officials are delighted to see serve on jurys.

Further, if your life circumstances — work travel schedule, health issues, family duties —  simply makes it impossible to serve, it is possible to be formally excused from jury service.  This can be handled informally, or by formal motion to the Court.

However, we advise clients to make every attempt to cooperate in serving on jury duty.  It is always interesting.  And, even though you typically are summoned to serve for two weeks, most jurors really serve just a few days.  And finally, consider if we take from jury duty the responsible citizens who hold jobs, raise families and have active civic involvement, then to whom are we relegating jury duty?  Judges, prosecutors, and defense attorneys want intelligent, engaged, active, jurors who have diverse life experiences to whom to present and argue the tough cases.  If those with your unique background refuse to serve, aren’t the participants deprived of your life experience and knowledge?

Consider serving if you possibly can fit it in..

Attorney Curt Hartman to present Ohio Open Meetings and Public Records

Author By Christopher P. FinneyPosted on

Finney Law Firm attorney Curt C. Hartman Thursday night presents to Empower U Ohio on Ohio Open Meetings and Public Records.  It is at 7 PM at the Deer Park Community Center, 7640 Plainfield Road.

The Finney Law Firm, led by Mr. Hartman encyclopedic knowledge of Ohio’s Open Meetings and Public Records laws, has a robust practice in the area of Ohio Open Meetings and Public Records, leading to greater accountability on public records.

The details on the class are here.

Dos and Don’t of Small Business: Legal Representation of LLCs, Corporations and Partnerships

Author By Finney Law FirmPosted on

While Ohio law allows individuals to represent themselves in court (pro se), non-lawyers may not represent others. This prohibition extends to non-lawyers who are the sole member of a limited liability company or sole shareholder of a corporation.

While for many small businesses there may seem to be no distinction between the sole shareholder/member and the entity itself, the law recognizes the distinction – indeed such recognition is the foundation of corporate existence – and it is important to recognize and respect that same distinction.

We recently handled a case involving two defendants, both of which were limited liability companies. The statutory agents for both defendant entities were non-lawyer members of the respective companies (perfectly legal and acceptable); and the statutory agents for both companies attempted to make “pro se” filings in the case. These filings were stricken by the Court, and treated as if neither defendant had appeared or answered the complaint in the case. Ultimately, the judge entered default judgment in our client’s favor and against the defendants.

Further, the Ohio Supreme Court has held that such attempted “pro se” representation warrants civil fines and sanctions for “unauthorized practice of law.” See Disciplinary Counsel v. Kafele, 843 N.E.2d 169, 174, 108 Ohio St.3d 283, 288, 2006 -Ohio- 904, ¶ 20 (Ohio,2006), finding a $1,000.00 fine appropriate where a non-lawyer member of an LLC made filings and attempted to represent the LLC in a lawsuit, and  Cleveland Metro. Bar Assn. v. McGinnis, 137 Ohio St.3d 166 (Ohio,2013) assessing a $6,000.00 fine for such unauthorized practice of law.

If your small business has a legal issue, hire an attorney to make sure you and your business are protected.

Another outlet for Public Records complaints

Author By Christopher P. FinneyPosted on

As our readers know, Ohio’s Public Records laws have been rendered somewhat less effective than previously by recent Ohio Supreme Court rulings, making the pursuit of such cases more difficult.  As a result, public agencies are even more reluctant to produce public records.

Thus, comes today’s announcement from State Auditor David Yost that his office has implemented a process as a part of State audits of public entities.  Now they will accept and investigate complaints about non-compliance with public records requests, and make a negative notation in their audit reports for failure to comply.

You may read that story in today’s Columbus Dispatch here.

Are cruiser cam videos public records in Ohio?

Author By Christopher P. FinneyPosted on

We are used to seeing cruiser camera videos of DUI arrests, and other police activities on the evening news.  This is so, at least in part, because Ohio public records law provides that these videos are public records.

But as we reported here, at least Ohio’s 12th District Court of Appeals ruled in May of last year that these videos are not public records under Ohio law, meaning citizens and news organizations have no right to obtain them.  This conflicts with rulings of the Ohio Supreme Court and other Ohio appellate districts.

With the protection of the 12th District opinion, the Ohio State Highway Patrol is apparently now broadly taking the position that cruiser camera videos are not public records.  Today’s Enquirer reports here that the newspaper has filed a direct mandamus action before the Ohio Supreme Court to force a ruling on the issue.

The Enquirer is seeking the cruiser cam video, the 911 tape, and the police report of an incident in January of this year involving a police chase from Warren County into Hamilton County.  The Ohio Highway Patrol apparently did not cite a legal basis for the denial of the records, as the law requires, but rather simply said it was acting at the request of the Prosecutor, which is not an exception to production under the law.

We anxiously await a clear pronouncement from the Ohio Supreme Court on the topic.  The last public records decision we received from the Ohio Supreme Court took 11 ½ months after full briefing for them to make a decision, so it may be a while.

 

Redistricting battle before SCOTUS

Author By Christopher P. FinneyPosted on

Can the voters of a State take from the legislature the prerogative to draw lines of legislative districts and place it in the hands of an independent redistricting commission?

That is the issue squarely  before the United States Supreme Court in Arizona State Legislature v. Arizona Redistricting Commission, heard at oral argument on March 2.

The United States Constitution at Article 1 Section 4 seems to place the responsibility for setting the “Times., Places and Manner” of elections in the hands of the several legislatures, but the question is whether the electors of a State can modify that right by ballot initiative.

It’s a simple but important question.  The answer should be in hand no later than the end of May.

Another Finney Law Firm case accepted at SCOTUS? Not quite.

Author By Christopher P. FinneyPosted on

It is a Herculean accomplishment for an appellate attorney to have a case accepted at the United States Supreme Court.  After all, they take only about 75 cases per cycle out of more than 10,000 petitions requesting that they take a case.  That’s a 99.3% rejection rate.  Most attorneys go through their entire career never asking to have a case accepted at the Supreme Court.  A tiny fraction of those applying ever have one accepted.

Thus, lightening struck two times in the first year of the Finney Law Firm when the Supreme Court accepted and reversed two cases from the 6th Circuit Court of Appeals for our clients.

As we addressed here, this year the Finney Law Firm had another petition before the U.S. Supreme Court, a First Amendment case addressing yard sign regulation in the City of Garfield Heights, Ohio.  That case has virtually identical legal issues to another case before the Supreme Court, Reed v. Town of Gilbert that was heard on oral argument on January 12th of this year.  A decision in the Reed case is expected before the end of April.  Thus, we wrote in our certiorari petition to the Supreme Court that the Court should dispose of the Garfield Heights case in the same manner as the Reed case.

Friday, that petition was considered in conference by the US  Supreme Court.  And … all we can say with certainty is they did not deny the petition, as the Court does with 99% of the petitions before it.  Rather, it appears to us at present that they agree with our argument that the case mirrors the Reed case, and is holding our petition pending disposition of that case.

If so, it’s not quite like having another oral argument at the Supreme Court as we did just after Easter of last year, but it is still an utterly remarkable accomplishment.

Congratulations to attorney Curt Hartman and our Public Interest law team on this great achievement, three times in two years!

 

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.

Finney Law Firm becomes corporate sponsor of Empower U

Author By Christopher P. FinneyPosted on

As part of our commitment to “Make a Difference” for our community, Finney Law Firm has become a corporate sponsor of the Empower U adult education series.

Empower U has existed for six years, and puts out some of the very best information to citizens who want to be informed in their civic and personal affairs.  The classes are free to attendees.

Visit their web site and course offerings here.

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