CLE Update: Upcoming CLE Seminars in Ohio


It is that time of the year again. November and December are good months for real estate related continuing education offerings worth looking into. Below are some of the real estate related CLEs scheduled for Nov.- Dec, 2016.

Cleveland Metropolitan Bar Association

The Real Estate Law Section of the Cleveland Metropolitan Bar Association is presenting its 38th Annual Real Estate Institute on Thursday-Friday November 10-11, 2016. This heralded (12.75 CLE hours) two- day  seminar runs from approximately 8:15 AM until 4:45 PM, both days and is being held at CMBA's offices, 1375 East Ninth Street, Cleveland, Ohio. Topics to be covered include Commercial Lending 101; 1031 Exchanges; Bioremediation and  Construction Claims and Coverage Issues. For more information you can contact the CMBA at (216) 696-2404, or at their web site,

To see a brochure of the 38TH Annual Real Estate Law Institute 2016, click below.

The Ohio State Bar Association is presenting its 24th Annual Bradley J. Schaeffer Real Property Institute on December 15, 2016.The Institute runs from 8:00 AM until 4:00 PM.  Click here for the course brochure 4/14-15 in Columbus;13.50 CLE hours

       Oil and Gas Update –11/18 in Columbus, Cleveland, Akron and Wooster- 6.00 CLE hours

      Title Law in Ohio— 11/3 in Cleveland; 11/7 in Youngstown; 12/8 in Worthington- 6.00 CLE hours

      Environmental Liabilities in Real Estate Transactions — 12/1 in Cincinnati; 12/7 in Mansfield- 6.00 CLE hours

      Handling Real Estate Transactions from Start to Finish--- 12/1 in Cleveland- 6.00 CLE hours

P  Prefer to obtain some of your CLE hours online? Try…

Finally, below are links to the continuing education pages for some of the bar associations in Ohio:

New Way for Ohio Homeowners to Spell Relief: “D.O.L.L.A.R.”

(as in Ohio Sub. H.B. 303’s  D.O.L.L.A.R. Deed Program)

By: Stephen D. Richman, Esq.-Senior Counsel, Kohrman, Jackson & Krantz PLL

On September 28, 2016, Ohio Sub.H.B. 303 became effective. Governor John R. Kasich signed the bill into law in June of this year, after unanimous passage in the Ohio House and Ohio Senate.  The most frequently asked questions and answers to the same are as follows:

What does Ohio Sub. H.B. 303 do?

The bill enacts new sections 5315.01, 5315.02, 5315.03, 5315.04, and 5315.05 of the Ohio Revised Code, creating the D.O.L.L.A.R. Deed Program.


Who introduced the bill and why?

Republican Reps. Jonathan Dever of Cincinnati and Robert McColley of Napoleon jointly introduced the bill last August. According to Rep. Dever, “This legislation is a small step in helping to keep the American dream of homeownership alive for thousands of Ohioans…As our communities struggle to preserve continuity, this legislation will be a tool to keep our neighborhoods together, kids in school, and bolster our economy.”


What is the basic premise of the D.O.L.L.A.R. Deed Program?

The program basically provides homeowners and lenders the option of allowing homeowners to remain in their homes as tenants instead of foreclosing on their property. During the tenancy (up to two years) the former homeowner will have the right to repurchase/refinance its property.


What do the letters in the D.O.L.L.A.R. acronym stand for?

The program’s acronym means Deed Over, Lender Leaseback, Agreed Refinance.

Who is eligible to apply?
Any mortgagor who is a resident of his/her home, whose debt to income ratios are below the then current ratios set for the program.

How does the program work?
Once an applicant applies, the lender is not required to participate, but must respond to the homeowner within thirty (30) days. If the lender approves the application, the homeowner and lender enter into a deed in lieu of foreclosure whereby the homeowner deeds title back to the lender, and in return, the lender terminates the foreclosure proceeding and enters into a lease for the property with the homeowner, which lease includes a right of the homeowner to repurchase the property with the lender refinancing the original loan. The homeowner must sign an estoppel affidavit acknowledging, among other things that the original mortgage is not extinguished during the lease term and that the homeowner relinquishes its statutory right to redeem the property outside of the program.

What are the terms of the lease?
Responsibilities of the tenant that are established by Ohio’s Landlord Tenant Act apply. However, statutory repair/maintenance obligations of the landlord do not apply to a lender-landlord under this program. The duration of the lease is the shorter of the period of time necessary for the homeowner to be approved for the new financing (or other FHA mortgage assistance) and two years. Rent cannot be less than monthly taxes, insurance and association or condominium dues.

Where can the full text of the “D.O.L.L.A.R. Deed statute “be found?
See Ohio General Assembly website for the full text of the Statutes:

Watch your Language with Board of Elections (Referendum) Petitions

By: Stephen D. Richman, Esq.- Senior Counsel at Kohrman, Jackson & Krantz,

As established in other “Watch Your Language” articles for this Blog, as a general rule, courts will uphold language in commercial agreements, unless it is contrary to statutory law or public policy. Because of this judicial deference to “commercial language”, you must say what you mean, precisely, or a judge will decide what you meant. Compounding the problem is the fact that courts typically refuse to consider extrinsic evidence of a party’s intent (offered by such party) if they determine the contract language is clear and unambiguous. What is said within the “four corners of an agreement” is simply deemed the best evidence of intent. 

Saying what you mean, precisely, is as important in drafting statutes and ordinances as it is in commercial agreements. As a general rule, courts will also uphold clear and unambiguous statutory language. Statutes clear in their terms need no interpretation; they simply need application. If the …language of a statute reveals … a meaning which is clear, unequivocal and definite… the statute must be applied accordingly." Provident Bank v. Wood (1973), 36 Ohio St. 2d 101, 105-106. Even the failure to follow a seemingly trivial grammar rule (the omission of a comma) can result in unintended consequences. In W. Jefferson v. Cammelleri, 2015-Ohio-2463 (a 12th Appellate District case), the court held that a municipal parking ban ordinance that intended to ban parking of motor vehicles and campers from street parking during certain hours did not apply to an individual who parked his truck overnight because a strict reading of the statutory language serves to prohibit a “motor vehicle camper” from being parked on the street for an extended period of time, and a truck is not a motor vehicle camper.

Based upon the recent case of State ex rel. Jacquemin v. Union Cty. Bd. of Elections, Slip Opinion No. 2016-Ohio-5880, saying what you mean, precisely is also important with regard to Board of Election petitions, in this case, a “referendum petition”.
Referendum petitions are petitions to put on the ballot a repeal of an existing law or section of law, and are governed by Ohio Revised Code Chapter 3519. Basically, to lawfully place a referendum on the ballot, petitioners must draft changes to (or repeal of) an existing law, prepare a summary of the same, and garner at least 1,000 signatures.

In Jacquemin, the law the petitioners wanted repealed was a Jerome Township resolution, adopting (and modifying) the Township Zoning Commission’s approval of an application for a Mixed Use Planned Development (PUD #15-120) for property owned by the Jacquemins and others. The PUD would include senior housing and care and multi-unit housing where such uses were not permitted prior to the resolution. The referendum petition summary described the location of the PUD as “Between the West side of Hyland Croy Road and the East side of US 33.”

The Jacquemins filed a protest of the petition with the Union County Board of Elections. On April 12, 2016, the board held a hearing and voted to deny the protests and to place the referendum issue on the November 8, 2016 ballot. The Jacquemins then appealed the board’s decision to the Ohio Supreme Court to prevent the board from placing the referendum on the ballot. The Jacquemins contended that the referendum summary was invalid because it contained six omissions and three errors. The Ohio Supreme Court focused on just one of the errors in the petition summary. The summary states that the nearest intersection to the properties is “Hyland-Croy Road and SR 161 – Post Road.” But the closest intersection is actually Hyland-Croy Road and Park Mill Drive; the difference being a quarter of a mile. At first glance, as stated by the court, “Without more, the error seems minor enough.”

Is there more? The Supreme Court of Ohio thought so. To reach that conclusion, the court first looked at precedent (prior court decisions on point) regarding petition summary mistakes. According to precedent, “If the mistake makes the summary “misleading, inaccurate or contains material omissions which would confuse the average person, the petition is invalid and may not form the basis for submission to a vote.”

The court then applied the law to the facts and held that the mistake in the petition summary was indeed misleading. How is listing one cross street vs. another ¼ mile away on a 60 acre parcel misleading? According to the court, “the context of the mistake informs its import.” The context in Jacquemin is that the misidentified intersection is near the location of land now zoned for big-box retail use, as a result of a contentious zoning change already approved for a development to the southwest of this property.

According to the court, “By misidentifying the nearest intersection as one that is near property that is already being developed for big-box retail use, the petition summary may have poisoned would-be signers against the new development, which is more than a quarter mile away from the intersection identified in the summary. At the very least, it suggests to a would-be signer that the developments would nearly overlap each other. The petition summary is therefore misleading and cannot form the basis to submit this issue to a vote.”

What is the moral of this story? While it is comforting that the Ohio Supreme Court, in this case looked to context, and not simply that a mislabeling mistake was made, the moral of this story is that our high school English teachers were right, we must “watch our language” because mistakes in the “real world” will be much more costly than a lower letter grade.

If the Form Does Not Fit, You Must Alter It- (#5)

As discussed in other articles for this Blog, under the heading, “If the Form Does Not Fit You Must Alter It,” the real estate attorney’s optimal role can be analogized to that of a department store tailor. Sometimes, parties cannot afford custom made “suits” (contracts) from an expensive boutique “store” (law firm). Or, custom dictates that the off the rack “suit at a department store” (standard form) be used. The problem is that the off the rack suit rarely fits all “body types” (transactions). Consequently, if the off the rack suit (form) does not fit, you must alter it.  Inapplicable clauses of a contract can be crossed out and initialed by the parties on the form. Small insertions can be written in and initialed, and large insertions can be added by way of addendum. 

In the world of residential real estate, however, where custom dictates that the real estate broker form be used, attorneys are sometimes as welcome to tailor make real estate transactions as a band of desperadoes is to a small western town without a sheriff.

We have had clients come to us reporting verbiage from residential brokers to the effect:

                          “It’s the ‘standard contract’ we use it in all of our sales;”

“You don’t need a lawyer; the contract was drafted by lawyers;”

3                    “We cannot make any changes to the forms;” and

4                   “Our Docu-sign program does not allow you to make any changes; just fill in the blanks and                   sign.”

All of the above statements are essentially true, except the second statement.  While the broker form contracts are indeed drafted by lawyers, those lawyers represent the brokerage companies. That is why you will see several clauses that begin with language to the effect: “broker shall not be responsible for” or “broker has not made any warranties.” Much of the form is actually fairly balanced between buyer and seller        (except for some standard forms that still have somewhat of a seller slant, originating with language that pre-dates the advent of buyer brokers and dual agency). Nevertheless, there are many legitimate reasons a buyer or seller may need an attorney to help weigh the balance in their favor (e.g., a buyer’s need for a contingency on the sale of its existing home, or a seller need for a quick, cash only deal). Additionally, there are some troublesome clauses we have seen (discussed below) that only a lawyer can/should modify. Finally, there are potential survey, title and other matters that are often glossed over in the standard contract.

Regarding the other statements above, it is true that virtually all brokers use the standard contracts, and that brokers cannot make any changes to them, other than fill in the blanks.

The reason that standard forms are used and are not to be changed by brokers is that Ohio
law prohibits individuals not licensed as an attorney from holding themselves out as an attorney or committing any act prohibited by the Ohio Supreme Court as the unauthorized practice of law. The Ohio Supreme Court has defined what constitutes rendering legal services as: (1) giving legal advice; (2) preparing legal documents, including contracts and (3) appearing in court proceedings on behalf of another person.

As a general matter, however, it is acceptable for real estate professionals to “fill in the blanks” on lawyer prepared documents. The Ohio Supreme Court has held that “the supplying of simple, factual material such as the date, the price, the name of the purchaser, the location of the property, the date of giving possession and the duration of the offer requires ordinary intelligence rather than the skill peculiar to one trained and experienced in the law”, and consequently, is not the unauthorized practice of law. A good, plain language summary of the law in this regard can be found on the Ohio Board of Realtor’s website entitled: A Good Broker Toolkit: Unauthorized Practice of Law, at:

Just because a broker cannot make any substantive changes to their standard form, does not mean an attorney or one of the direct parties cannot insist upon modifications. While the vast majority of realtors we have dealt with understand this, the few that advise changes cannot or should not be made at all to the forms are in fact engaged in the unauthorized practice of law. Stating that legal advice is not needed, or that particular changes should not or cannot be made is in effect, legal advice.

Among the provisions we think should be altered, especially when “outfitting” a buyer are the following:

          AS IS”-Most sellers of residential real estate want to sell, on an AS IS basis, and most buyers, if they want to buy a home, will have to buy on that basis. However, the buyer should not have to agree to buy, “AS IS” until after their inspections, and final walk thru have occurred and they have waived their rights to terminate the contract. The standard forms, however contain premature language in this regard. For example, consider this language from a major brokerage company’s form: “The Property, which Buyer has examined and accepts in its present AS IS physical condition shall include the following…” An easy fix here is to use the following, alternative language: The property, which seller is selling in its present AS IS physical condition shall include the following…”

             “…then, this Agreement shall be null and void- This language usually follows a certain condition that must occur, or not occur in the contract. The problem is that null and void literally means “all bets are off”, “case closed” and “game over.” We see this language most often, in the financing contingency and inspection sections of the standard contract. The contract language in the financing contingency provision usually provides, to the effect, “if a commitment is not received within __ days, then this Agreement shall be null and void.” The problem with this wording is that delays usually occur, and often, not the fault of the buyer. A short, built in extension period could easily solve this problem. Also, there are times when a Buyer prefers to finance, but may actually be able to pay in cash and not want the contract to expire if it cannot get its commitment. Making the contract voidable, at the option of the buyer vs. automatically void can solve this problem.

The second place the null and void language usually occurs is in the inspection section. The standard contract inspection provision usually gives a Buyer three choices if its inspections indicate problems. The buyer can: 1) terminate the contract; 2) accept the problems and close; or 3) accept the property subject to an agreement with the seller on the amount and timing necessary to fix the problem(s). If a buyer chooses option three, however, the contract only gives the parties a short period of time to agree, and if there is no agreement, the contract is automatically deemed null and void. Again, making the contract voidable, at the option of the buyer vs. automatically void will allow the buyer to stay in the deal if it wants, if it cannot agree with seller. While seemingly important at first, trying to avoid a $500 drywall repair could cost the buyer its dream house.

       Material Defects -Most of the standard forms only allow the buyer to terminate the contract if its inspections reveal “material defects not previously disclosed. “Maybe a U.S. Supreme Court justice or two knows a material defect when he/she sees it, but for the rest of us, this language is almost meaningless. It would be so much easier, prior to contract signing for buyer and seller to choose a number both parties can live with as the definition of material. In other words, language such as “Material Defect” shall mean a defect that costs $_____ or more to repair” could easily transform a potential contract dispute into an easy contract resolution.

      “…then Buyer and Seller shall mutually agree, or sign a mutual release, and thereafter the escrow agent shall refund the Earnest Money.” Language like this is usually found in connection with termination provisions of the standard contract. The problem with this language is that if the buyer is attempting to exercise a termination right, seller and buyer will be hard pressed to mutually agree upon anything. Without such a release, buyer and seller will find themselves in “legal limbo” and the buyer will not likely see its earnest money until after a successful court battle.

The best example of this issue can be found in a major brokerage company’s walk-thru addendum form. This form allows a buyer to walk thru the property it is buying a couple of days before closing, and if the walk-thru evidences a “material adverse change in the Property”, buyer is to notify seller and then buyer and seller are to mutually agree upon an amount to be withheld from seller’s proceeds (and held in escrow until repairs are made), or an amount to be credited to Buyer. The problem occurs when buyer and seller cannot agree. If there is disagreement as to whether there is a material change, you can bet there will be no inclination on seller’s part to agree on an amount to remedy the change in the property. Quantifying “material adverse change” and adding a cause allowing termination of the contract if the parties cannot agree on the amount to be withheld/credited could easily prevent potential litigation. Sellers should be equally concerned here because “contract purgatory” would seriously hamper their efforts to sell their property to a new buyer.

     Title & Survey- One standard brokerage form we reviewed merely stated that the “Buyer is encouraged to obtain an Owner’s Title Insurance Policy”. It did not provide language giving buyer the option to receive a “Title Commitment”, which is basically the title company’s offer to provide a buyer with title insurance, together with a report of any liens, encumbrances, easements…currently against the title. In virtually all commercial contracts, and many residential contracts, the buyer has a right to terminate the contract if the Title Commitment shows encumbrances that are troublesome to the buyer. Few standard residential contracts even mention the word “survey”. However, we know of numerous disgruntled buyers who found out, after they bought their properties that their neighbors driveway, or retaining wall or flower beds encroached on their property
An “ALTA Survey” would have disclosed the encroachments. Moreover, an ALTA Survey would have been all that was needed in these situations for the title company to delete its exception for survey matters, and cover the legal and survey expenses. The broker in one of these situations told the buyer they did not need an ALTA Survey, or an attorney.

What is the moral of this story? Brokers cannot “tailor-make” their contract forms-it is against the law in Ohio; and while the buyer and seller can represent themselves, the old adage usually rings true-“those that represent themselves have a fool for a client.” That leaves one option- have a lawyer review your real estate contract. You are the customer, you can specify that you don’t want a new, tailor made suit, that the pants don’t need hems and that you just want basic alterations such that the odds of there being a wardrobe malfunction are greatly reduced.

If a broker, seller, buyer or other party is telling you that you don’t need a lawyer, and you can’t make any alterations---  it is time to look for another “suit”. As this author’s father used to say, “Sometimes the best deals are the ones you don’t make.”

Are Oral Modifications of Written Leases Enforceable in Ohio?

As you may know, as a general rule, commercial leases of real property in Ohio must be in writing to be enforceable. Ohio’s “Statute of Frauds” (ORC Section 1335.04) with respect to leases provides in pertinent part that “no lease… of, in, or out of lands, tenements or hereditaments… shall be granted, except…in writing, signed by the party …granting it”. Ohio’s Landlord and Tenant Act (ORC Section 5321, et. seq.) supersedes the foregoing Statute of Frauds rule with regard to residential leases.

Commercial leases of real property in Ohio must also be properly acknowledged (e.g. notarized). ORC Section 5301.01 provides that leases of non-residential real property whose terms exceed three (3) years must be in writing, signed and notarized (or otherwise acknowledged as provided in ORC Section 5301.01) to be enforceable.

What about modifications/amendments to written commercial leases? Must they be in writing to be enforceable? What if there is a clause in the written lease precluding oral modifications of the lease; does that end the inquiry?

The recent Eighth Appellate District Court of Ohio case, 3637 Green Rd. Co., Ltd. v. Specialized Component Sales Co., Inc., 2016-Ohio-5324, presents a good summary of the law in this regard.

The facts of the case are as follows: On April 17, 1981, 3637 Green Road (“landlord”) and Specialized Component Sales (“tenant”), a distributor of industrial electrical components, entered into a lease for warehouse and office space at 3637 Green Road in Beachwood, Ohio. The original lease was for a term of three years (beginning in 1981), with an option to renew the lease for another three year term. The parties executed six written extensions to the original lease. After the expiration of the final, written lease extension, the tenant remained in possession of the premises on a month to month basis for eight years.

The business issue between the parties was, of course, money. The rent during the fifth extension term was $1,824.00/month (the rent for the original term was $1600.00/mo.). The tenant’s principal testified that around late 2003 or early 2004, he had a discussion with the landlord’s representative claiming that business was bad, and accordingly, the tenant would  have to reduce rent or move out. As a result of this discussion (according to the tenant), the monthly rent was reduced to $1,473.75/mo. but no written agreement was executed confirming the rent reduction. Tenant paid this amount for approximately eight years (from 2004-2012) and landlord accepted same without objection. While the exact termination date is in dispute, the tenant vacated the premises in November 2012, after the landlord stated the rent would need to increase by $1800/month (if tenant wanted to stay) because landlord had located a new tenant.  The tenant turned in its keys in the first part of December, 2013, but the landlord claimed it had no notice of the vacation of the premises until March, 2013.

Thereafter, the landlord sued the tenant claiming it was entitled to recover “(1) the difference between the $1,824 monthly rent specified in the fifth lease extension and the $1,473.75 month rent paid by tenant from January, 2011 through October, 2012 and (2) $1,824 in monthly rent for November 2012 through March 2013”, as limited by the court’s $15,000 jurisdictional limit. In response, the tenant asserted that it had paid all the rent due through October 2012 and that the security deposit covered the November 2012 rent.

In August, 2015, the trial court awarded the landlord $1,196.50 in damages, finding that: 1) the parties had orally agreed to reduce the monthly rent due under the lease to $1,473.75, 2) the landlord terminated the month-to-month tenancy as of October 31, 2012, and 3) the tenant vacated the premises on December 3, 2012 when it turned in the keys for the premises. Based on these findings, the court concluded that the tenant owed rent for the months of November and December 2012 (totaling $2,947.50) which, when offset by its $1,751 security deposit, resulted in a net damages award of $1,196.50 to the landlord.

Among the “assignments of error” (claimed mistakes by the trial court) claimed by the landlord at the Cuyahoga County Court of Appeals were: 1)  the trial court erred in upholding a verbal modification of a written lease, barred by the Statute of Frauds; and 2) the trial court erred in failing to enforce a no-oral-modification provision. As to the landlord’s argument that the parties’ oral agreement to reduce the rent was barred by the Statute of Frauds, the court did acknowledge that “a modification or reduction of the rent stated in a written lease cannot generally be proven by evidence of an oral agreement based on the Statute of Frauds.” In fact, the court in 3637 Green Rd. cited several cases subscribing to this general rule.

As with most case law, however, there are exceptions to the “general rule”. The principal exception to the Statute of Frauds is the equitable doctrine of “part performance” (which is not particular solely to leases). This doctrine basically dictates (based upon fairness/equity) that a lease (or other contract) should not be rendered unenforceable due to technical failures or oral modifications when much of the contract has been performed.

The 3637 Green Rd. court cited a number of cases that have established the following “test” to determine whether or not partial performance is sufficient to remove an agreement from the operation of the Statute of Frauds: 1) the performance “must consist of unequivocal acts by the party relying upon the agreement which are exclusively referable to the agreement”; and 2) the party asserting partial performance must have undertaken acts that “changed his position to his detriment which makes it impossible or impractical to place the parties in status quo.”

Applying the law to the facts, the 3637 Green Rd. court easily determined that eight years of lower rent payments without objection from the landlord were clearly “unequivocal acts”. Not only did the landlord not object, but in an October 17, 2012 financial statement attached to the landlord’s complaint, the landlord, in effect “stated” that  no additional amounts were due by virtue of showing a zero balance in tenant’s rent due account.

The landlord also argued that the lease itself  prohibited oral modifications. Section 24 of the lease states, in pertinent part: “No waiver of any … condition or covenant shall be valid unless it be in writing signed by Lessor,” and Section 42 of the lease provides, in pertinent part: “This Lease contains the entire agreement between the parties, and any other agreement hereafter made shall be ineffective to change, modify or discharge it … unless in writing and signed by the party against whom enforcement …. is sought.”

Clearly, the parties specified in the lease that modifications and waivers were not to be enforceable unless set forth in a signed writing. Additionally, there is a “boat load” of case law that provides if the language of a lease (or other contract) is clear and unambiguous, courts must enforce the instrument as written. So, case closed/trial court judgment overruled (in favor of the landlord); correct?

Not so fast. While the appellate court in 3637 Green Rd. did recognize the general law that provides, in effect that the written word, “rules”, it also recognized that there are exceptions to this basic principle of contract law as well. Citing precedent (prior case law on point), the court in 3637 Green Rd  summarized the law in this regard as follows: “If the language of a lease is clear and unambiguous, courts must enforce the instrument as written… However, waiver of a contract term can occur when a party conducts itself in a manner inconsistent with an intention to insist on that term… [and] a no-oral-modification clause can be waived by oral agreement like any other term in a contract.” The court of appeals in 3637 Green Rd. clarified, however, that the waiver must be “clear and unequivocal if it contradicts a written contract provision.” In other words, the same test to determine if partial performance is sufficient to remove an agreement from the operation of the Statute of Frauds can used to determine if a no-oral waiver provision can be waived by unwritten words/actions. According to the court, one could not be much clearer than payment of eight years of a reduced rent, without objection from a landlord, plus a landlord’s accounting entry showing a zero rent balance for the tenant.

While the court in 3637 Green Rd doesn’t present a bright line test as to what is clear and unequivocal, it did cite a couple of examples. One case cited on similar facts as 3637 Green Rd (EAC Properties, LLC v. Brightwell, 2011-Ohio-2373) involved a reduced rent being paid, without objection for thirteen months. Another case cited (200 West Apartments v. Foreman, 8th Dist. 1994 Ohio App. LEXIS 4081) wasn’t as much concerned with the duration of the waiver, but by the detrimental reliance of one party upon the waiver. In the 200 West Apartments case, the written lease was orally modified by the acts of the parties when landlord agreed to accept half the rent in exchange for services provided by tenant.

 3637 Green Rd. is a good example of a court applying principles of equity and fundamental fairness instead of the application of “black letter law” which would otherwise result in an unjust decision, As aptly explained by the 12th District Court of Appeals of Ohio (in Fields Excavating, Inc. v. McWane, Inc., 2009-Ohio-5925)if such [no oral modifications] clauses are rigidly enforced, then a party could simply insert the clause into an agreement and would be magically protected in the future no matter what that party said or did. More simply, by including a no-oral-modification clause in a contract, a party could orally induce the opposing party in any way and then hide behind the clause as a defense.”

As With Many Things in Life, Timing is Everything.

If I had to pick one issue that perpetually appears in term sheets and letters of intent negotiated by clients on real estate purchases, it is the issue of timing. In short, the self-imposed deadlines agreed to by the parties are often disconnected with reality.

Understandably, the seller in a real estate transaction wants to close as soon as possible, and the buyer may also be faced with pressures that dictate a tight deadline. However, there are certain realities that come into play and cannot, or should not, be ignored.

First, a buyer needs to allow adequate time to conduct a thorough diligence review of the property. In some counties, a title examination might be completed in a week, depending on the time of year, but more often than not, plan on at least two weeks. In certain counties it can take even longer, or if the title on a particular parcel or parcels is complicated more time will be required by the title agent. Timing for a survey depends on the type of survey. A mortgage location survey can be completed in the one to two week time frame and typically costs a few hundred dollars. While a location survey may be sufficient to remove the survey exception from the title policy, it doesn’t provide all of the information that an ALTA/NSPS survey covers. Also, most lenders, depending on the size of the mortgage loan, will require the more comprehensive ALTA/NSPS survey. This can take several weeks (more than 30 days) to be completed; particularly if being completed during a harsh winter.

All purchase agreements provide a limited time frame in which a buyer may object to information in the title report. If there is any likelihood that a survey will be completed as part of buyer’s due diligence, then buyer’s objection period should not start until buyer has received both the title report and the survey. It is more efficient to review these two items in tandem.

Environmental diligence is another key item that can slow down a deal. A Phase I environmental review can take 4-5 weeks as well. If the Phase I report identifies any significant issues that warrant testing or further review, then several more weeks will be required. Allow for extensions of the diligence period to complete this review if needed.

Second, if the purchase will involve financing, allow time for the lender to conduct its diligence and underwriting on the loan. In addition to title, survey and environmental, a lender will typically require an appraisal, zoning letters, and other financial and leasing information on the borrower and the property.  Appraisals can take a few weeks and zoning letters may not be quickly obtained depending on the responsiveness of the local government providing the letter. Keep in mind that an older property may be categorized as ‘legal, nonconforming’. This means the zoning has changed but the property is grandfathered and not held to the new zoning requirements. This often happens with older multi-family residential properties or older office buildings where local codes have changed requiring more parking spaces than were required when the building was constructed.

Additional work is needed in these situations to determine what will happen if there is a casualty that damages all or a substantial portion of the property.  In many instances the local municipal code (or the state statute, if the local government defers to Ohio law) allows a property to rebuilt along its same footprint and retain its ‘legal, nonconforming’ status so long as the property is rebuilt within certain time frames. It can be as short as 6 months or as long as 2 years. A lender will want to confirm what is or is not required in these situations (as should any prudent buyer) and may require the buyer to carry additional insurance to cover any changes in the zoning and building codes that would drastically impact the cost of rebuilding after a casualty.

Keeping all of the foregoing in mind, potential buyers should allow sufficient time in their purchase agreements so they do not have to go back to the seller and request (frequently at significant cost) extensions of time to close.  Third party providers and lenders are not bound by the deadlines in a purchase agreement and will take the time they require to properly complete their work. Acknowledging that reality can spares parties to an agreement a lot of heartburn.

There’s a New Form in Town (for Cuyahoga County Real Estate Transfers)

By: Stephen D. Richman, Esq., Senior Counsel at Kohrman, Jackson & Krantz

Actually, effective August 1, 2016, for Cuyahoga County, there is a new Page 2 to the statewide Real Property Conveyance Fee Statement of Value and Receipt (Form DTE 100). Form DTE 100 is the form that must accompany all real estate transfers in Ohio (unless exempt from conveyance fees pursuant to Ohio Revised Code Section 319.54 (G)(3)). Entitled the “Sales Verification Questionnaire”, this form must be signed and completed by either the seller or the buyer.  The Conveyance Fee Statement (the first page of Form DTE 100 is required to be completed/signed by the grantee or a representative of the grantee). By signing this questionnaire, the party completing same must acknowledge “that the information provided to the Cuyahoga County Fiscal Office regarding [the] real estate transfer is truthful and completed to the best of their knowledge.”

The newly revised Form DTE 100 can be obtained at the following site:

Basically, the Sales Verification Questionnaire (aka “new Page 2 of Form DTE 100) asks the following questions, extracted from the form:

1. Were there any special conditions affecting the sale?
O Sale between family members.
O Sale between two affiliated businesses.
O Auction Sale
O Forced Sale or Sheriff's Sale
O Sale involved a government agency or public utility.
O Buyer is a religious or charitable organization.
O Land contract or contract for deed.
O Sale involves only a partial interest.
O Sale includes trade or exchange of properties.
O Sale by judicial order

2. What was the use of the property at time of sale?
O Single Family Residence O Vacant Lot O Multifamily Residence O Retail O Apartment Building                                               O Industrial  O Other

3. Was property rented/leased at time of sale? O Yes O No

4. Did sale price include an existing business? O Yes O No

5. Was any personal property, such as furniture, equipment, machinery, livestock,
business inventory, included in the sale price? O Yes O No

If yes, describe:

Est. Value of Personal Prop. Incl. in Sale: $

6. Have there been any recent changes to the property?
 O No O Demolition
 O Addition(s) O Renovations

When was work completed?
Estimated Cost of Work Done: $

7. Does the buyer hold title to any adjoining property? O Yes O No

8. Was an appraisal done on the property? O Yes O No

9. Were any delinquent taxes assumed by the purchaser?
O No
O Yes – Amount: __________

10. How was the property marketed? (Check all that apply)
O Listed with Real Estate Agent O Displayed "For Sale" sign
O Advertised in Newspaper O Word of Mouth
Why the need for this new form? The form itself answers this question; “All information obtained through this questionnaire will be used to determine whether or not this transaction is an arm’s-length, market based sale.”

What is an arm’s-length sale? In Ohio, relevant case law has established that “three factors are relevant to deciding whether a transaction occurred at arm’s-length: whether the sale was voluntary; i.e., without compulsion or duress, whether the sale [took] place in an open market, and whether the buyer and seller act[ed] in their own self-interest.”

Why does it matter if your transaction is an arm’s-length, market based sale? Basically, it has to do with establishing the value of real property which in turn determines the amount of real estate taxes required to be paid. The general rule with regard to determining value of real property (in order to calculate real estate taxes) is that the purchase price at a recent (within three years) arm’s-length sale of the property between a willing buyer and willing seller is usually dispositive. (Note that “usually” is italicized above because pursuant to Ohio Am. Sub H.B. 487 (H.B. 487) signed into law on June 11, 2012, the revised statutory language of R.C. 5713.03 now provides that an auditor may (vs. shall consider the price of a recent sale as value). Nevertheless, auditors usually consider the price of a recent, arm’s-length sale as value because what better indication of value is there than the price someone is willing to pay and actually pays for the property?

If not arm’s-length, however, auditors will usually not establish value based on the price. Examples of non-arm’s-length sales are: sales between family members, sale between two affiliated businesses, auction sales and other sales of the types described on the new Sale Verification Questionnaire.

Is this new questionnaire good or bad for taxpayers? While most of the information called for on the new form seems likely to result in increased valuations for the taxpayer, answers to questions 4 and 5 might help prove that valuation (and accordingly taxes) should be lowered.  

For example, if the purchase price of a $500,000 commercial property includes personal property valued at $100,000, the valuation of the real property should be $400,000. In such a case, however, consistency is the key. Appraisals are recommended to establish the value of significant personal property purchased along with real property, purchase agreements should specifically allocate the purchase price between real and personal property, and Section 7 (d)-(f) of the Real Property Conveyance Fee Statement (page one of Form DTE 100) should appropriately provide separate values for personal and real property, based upon the appraisal and agreed allocation.

Will the Sales Verification Questionnaire be required in other counties in Ohio? Good question. Counties researched thus far have not followed suit, but are expected to. I have posed this question to the Ohio Department of Taxation, and will supplement this article upon receipt of their answer.