CLE Update: Upcoming Real Estate Seminars in Ohio

Falling behind this season with CLE credits? Want to become a more seasoned real estate professional this fall/winter? Below are links/information to selected seminars/webinars and teleconferences being offered between now and year end.

Sterling Educational Services

When: 10-24-2014 - 8:30 AM
Where: Crowne Plaza Downtown
33 E 5th St-Dayton, OH
What: Landlord-Tenant Law: Leases, Evictions, Litigation and Settlements
per person
per person for 2 or more (applied automatically)

When: 12-08-2014 - 8:30 AM- 6hrs CLE
Where: Holiday Inn Independence
6001 Rockside Road-Independence, OH
What: Land Use Law: Current Issues in Subdivision, Annexation and Zoning
per person
per person for 2 or more (applied automatically)
When: 12-10-2014 - 8:30 AM (Canton); 12-11-2014 - 8:30 AM (Cleveland) - 6hrs CLE
Where: Canton: Hilton Garden Inn Akron-Canton Airport
5251 Landmark Boulevard-Canton, OH
 Cleveland: Doubletree Hotel
6200 Quarry Lane-Independence, OH
What: Title Workshop: From Examination to Commitment
per person
per person for each additional registrant

When: 11-05-2014 - 8:00 AM- 6hrs CLE
Where: (LIVE) Columbus-OSBA-1700 Lake Shore Dr.
 (SIMULCAST)-Cleveland-The Ritz-Carlton -1515 W. 3rd St.
Fairfield-Reception Conference Center North-5975 Boymel Dr.
Perrysburg-Hilton Garden Inn-6165 Levis Commons Blvd.
What: Residential Real Estate Transactions
From $187 (govt. attorneys
-members) to $300 (walk-in, non-member) per person

When: November 13 and 14, 2014 -8:15/8:30 AM- Up to 12.75 CLE
Where: Cleveland Metropolitan Bar Association, 1375 East Ninth Street, One Cleveland Center, Cleveland, OH  44114
What: 36th Annual Real Estate Law Institute
Sponsored by the Real Estate Law Section of the Cleveland Metropolitan Bar Association

Title Policy Corner: An Overview of the ALTA 9 Series Endorsements

The article below was contributed by the National Commercial Services Team at Fidelity National Title:
In 2012, the ALTA Forms Committee adopted significant changes to the series of ALTA 9 Restrictions, Easements and Agreements (REA) endorsements, not only to clarify the specific extra title coverage provided, but also to address the result of litigation about a Schedule B exception for an REA.  The old “plain Jane” ALTA 9 endorsement provided coverage to an owner or a lender against three major title issues:  violations of recorded REAs that could affect the validity of title or the lien status of a mortgage, encroachments, and mineral rights.  Now, the Committee has separated coverages for these issues into ALTA 9 (REA), ALTA 28 (encroachments), and ALTA 35 (mineral rights). Below is an explanation of the latest ALTA 9 series endorsements.
ALTA Form 9-06    Loan policy:  This endorsement contains all the coverages provided under the old ALTA 9 except that it removes coverage over any encroachment from adjoining property (or onto adjoining property) that is identified in the Schedule B exceptions.  The change is handled primarily through a clarification of what constitutes a “violation".  Disclosure of a known violation in the Schedule B exceptions removes that violation from coverage under the ALTA 9-06 endorsement.
ALTA Form 9.1-06   Unimproved land — Owners Policy: This form endorsement only addresses covenants and restrictions.  The ALTA 28.1 and ALTA 35 endorsements must be added to address encroachments or mineral rights.
ALTA 9.2-06   Improved land — Owners Policy: Revisions to this form endorsement also only addresses covenants and restrictions.  Coverage for encroachments (ALTA 28.1) and mineral rights (ALTA 35) must be addressed separately as additional endorsements.
ALTA 9.3-06   Loan Policy: Like the ALTA 9.2-06 for Owners Policies above, this endorsement only addresses covenants and restrictions and any coverage for encroachments or mineral rights would be dealt with by separately under the ALTA 28 or ALTA 35 series of endorsements.
ALTA 9.6-06   Private Rights — Loan policy: This endorsement provides coverage to the lender against loss that results from the invalidity, unenforceability or lack of priority of the insured mortgage arising from “private rights” such as a private charge or REA assessment, option to purchase, right of first refusal, or right of prior approval of a future purchaser or occupant.
ALTA 9.7-06   Land under Development — Loan policy: This endorsement is substantially similar to the ALTA 9-06 discussed above, providing the broadest form of coverage to the lender, but is only used for issuance on a future development site.  In order to provide this endorsement, the title office needs a specifically identified set of building plans and specifications that it can compare against any recorded restrictions.
ALTA 9.8-06     Land under Development  — Owners policy: This endorsement is substantially similar to the ALTA 9.2-06, except that it applies to future development. It does not contain any coverage against encroachments or mineral rights. In order to provide this endorsement, the title office needs a specifically identified set of building plans and specifications that it can compare against any recorded restrictions.

ALTA 9.9-06    Private Rights — Owners policy: This endorsement provides coverage to the owner against loss that results from the invalidity of the insured title arising from “private rights” such as options to purchase, right of first refusal or right of prior approval of a future purchaser or occupant.

Overall, the revised ALTA 9 series is designed to provide owners and lenders with flexibility in being able to choose their desired coverage based on the specifics of the real estate transaction.

*   *   *
In a future blog post, Fidelity National Title will review the new ALTA 28 and ALTA 35 endorsements.
If anyone has questions about any of the endorsements discussed in this blog article, they can contact Jeremy Freed, Commercial Underwriter on the National Commercial Services Team at Fidelity National Title ( or 800.626.9881 or 614.818.4822.

Unruly Horse Renders Stable Owner Immune from Liability for its Unruly Dog

Prior to the twentieth century, the old adage- “every dog gets one free bite” was in effect in most jurisdictions. In other words, a dog owner was only held liable for his dog's biting someone if the owner had reason to know the dog would bite.

In Ohio, as of the date of this article, Ohio’s law governing unruly dog behavior is the opposite of the old “one free bite rule.” Pursuant to Ohio Revised Code Section. 955.28, to prove a statutory cause of action for injuries caused by another person’s dog, the plaintiff need only prove: (1) ownership or keepership [or harborship] of the dog; (2) that the dog’s actions were the proximate cause of the injury; and (3) damages. This is what is known as a “strict liability statute.

What if the unruly dog’s behavior does not directly result in harm, but causes a horse to be unruly, which then results in injury to a person? In a strange but true “premises liability”action, that very question was before the Court of Appeals for the Ninth Judicial District (Lorain County) in the case of Graham v. Shamrock Stables, 2014-Ohio-3977.

The facts of this case are simple enough; it is the law that is a bit unusual.  In October, 2011, Lethea Graham went to Shamrock Stables to look at a miniature horse for possible adoption. As she was walking  the horse back to its stall (according to Graham), a large dog  began barking and jumping at the horse’s back legs which “spooked” the horse and knocked Graham to the ground, causing serious injuries to two of  Graham’s fingers. Afterwards, Graham and her husband sued Shamrock Stables for the injuries Graham sustained as a proximate result of the dog Shamrock Stables harbored on its property.

Graham claimed Shamrock Stables was liable based upon the “unruly dog statute”, Ohio Revised Code Section. 955.28. Shamrock Stables asserted that the “unruly dog statute” did not apply, because Graham’s injury was the result of equine (horse) activity, and therefore, the “equine immunity statute” applied.

Ohio’s equine immunity statute, R.C. 2305.321, provides immunity from liability for harm sustained by an equine-activity participant allegedly resulting from the inherent risk of equine activities. As explained by a recent Ohio Supreme Court decision: 1) “the phrase ‘equine activity participant’ is broad enough that it encompasses a person controlling in any manner an equine, whether the equine is mounted or unmounted;” and 2) “almost every activity associated with a horse is an equine activity.”  The reason for such a statute, according to the Ohio Supreme Court is that horses are unpredictable, and there are inherent risks that arise when horses are near people.

The trial court agreed with Shamrock Stables, that the equine immunity statute applied, and Graham appealed. The Ninth District Court of Appeals affirmed the trial court’s decision.

To reach its conclusion, the court of appeals in Graham first acknowledged that the issue at hand was deciding, which statute applied-the unruly dog statute, or the equine immunity statute. The court then found its answer in the plain language of the horse immunity statute. The court explained that “one of the inherent risks of an equine activity specifically listed in the statute was the unpredictability of an equine’s reaction to other animals”, and “since the General Assembly did not exempt dogs from the foregoing provision”, the horse’s reaction to the defendant’s dog would qualify as an inherent risk of equine activity, thus triggering the immunity.

The one dissenting judge in Graham asked a very good question in its dissent. “Why should the owner of both the horse and the dog (Shamrock Stables) escape strict liability arising out of the act of the dog, merely because the dog caused injuries via the horse?” The dissenting judge theorized that at issue was a general immunity statute (“horse immunity statute”) and a special provision specifically imposing strict liability on dog owners (the “unruly dog statute”), and that according to precedent, when two statutes, one general, one special cover the same subject matter, the special provision should be construed as an exception to the general statute which might otherwise apply. In spite of a well-reasoned dissent, however, two (judges) against one (judge), always wins.

So what is the moral of this story?  Simply, (in the words of my 10 year old nephew) “Horses rule, dogs drool.” In other words, even if a dog (or other animal) causes a horse to injure its rider (or other participant in an equine activity) the dog’s owner, and horse’s owner are immune from liability, at least when the owner of the dog and the horse are the same person. The dissenting judge’s theory that there would be no issue if a neighbor’s dog had run onto the property and startled the defendant’s horse, injuring Mrs. Graham seems to make a lot of - horse sense.

Vacant Property Registration Ordinances: Understanding the Issues

Since the foreclosure crisis in 2008 – 2009, many communities in the U.S. have enacted “vacant property registration” ordinances (VPR ordinances) as a tool to help them deal with problem properties that are vacant. There are over 80 such ordinance issued or proposed in the state of Ohio alone.

VPR ordinances can take different approaches—some are triggered upon a property becoming ‘vacant’, others upon a foreclosure action being initiated, or use a combination of the preceding two approaches. The problem occurs with the implementation of these ordinances due to vague language and muddled objectives; i.e., the devil is in the details.

Many communities have a serious problem with vacant homes and buildings with owners that do not care (or do not have the resources) to properly maintain the property. Understandably, local communities want to address this problem, and VPR ordinances are often the result.  Because VPR ordinances don’t just apply to the bad actors, but pull in everyone else as well, it is important to look at the language in a draft VPR ordinance to evaluate how it might be unevenly enforced and what might be the unintentional results. Too many of these ordinances inadvertently punish the many for the crimes of a few.

Below are some of the potential issues in VPR ordinances:

How is “owner” defined? — Many VPR ordinances broadly define the “owner” of a property to include mortgagees and loan servicers, and agents of the foregoing, as well as anyone else who directly or indirectly controls the property.  There is often no clear guidance as to what constitutes “directly or indirectly in control of a property”.  With such vague language, any property manager or realtor or other vendor providing similar services could be pulled into the ordinance’s reach if an enterprising public employee chose to interpret it that way. Also, the vast majority of mortgages are owned by the federal government (e.g., FHA, HUD, VA, USDA-RD) or through one of its quasi-governmental entities (e.g., Fannie Mae or Freddie Mac). How does a local community expect to enforce its ordinance against the federal government? The likely result will be uneven enforcement that impacts the local lenders the hardest.

How does the ordinance define “vacant”? — Again, VPR ordinances can define how a structure is determined to be “vacant” in rather broad terms.  An over broad definition of “vacant” can pull in structures that are not in disrepair and therefore not a problem for the community. Definitions of “vacant” in many VPR ordinances include exclusionary terms such as “lawfully occupied” without ever defining what that means. Its use may be intended to appropriately exclude well-tended vacation homes and similar homes. However, vague and over broad language puts significant discretion into the hands of the local government to interpret it however is convenient, and results in arbitrary and unequal applications of the ordinance.

Inspections — Many VPR ordinances require property inspections as part of the registry process. Tightly drafted ordinances will make it clear as to what is being inspected and the precise standards against which the property will be measured. Unfortunately, many ordinances fall short, so property owners and other “owners” are left in the dark as to what will be expected of them. Also, many VPR ordinances fail to clarify what type of inspection will be conducted. Is the inspection only of the exterior grounds or can a municipal employee demand to inspect inside the structure? This latter demand triggers constitutional concerns as the 4th amendment to the Constitution which protects citizens from unreasonable searches.

Cash Bonds — VPR ordinances often include requirements for a cash bond to be paid by the mortgagee prior to pursuing a foreclosure. Smaller local mortgage lenders cannot afford this and are more likely to simply stop making mortgage loans in that community. This reduces options for the residents living there.  Larger lenders might comply with the demand but will simply pass the higher risks and costs of VPR ordinances on to the borrower in the form of higher interest rates and closing costs. This again reduces affordable options for the residents of that community and increases the attractiveness of homes in other communities who have no such requirement. Further, if no problems arise on a particular property, how does the mortgagee obtain a return of the cash bond it provided?  Does the VPR ordinance provide a mechanism for segregating the cash bonds from its operating funds and a return of unused funds to the mortgagee when the property is no longer vacant?

Penalties — VPR ordinances typically charge fines for violations and some even include criminal charges. The issue with many such ordinances is the lack of any provision for waivers or reduced fees when the community has suffered no harm. Based on the language in many VPR ordinances, it is possible for an owner to be subject to criminal charges for a mere paperwork violation. VPR ordinances that provide for both civil penalties and misdemeanor charges often do not provide clear direction as to when a violation can escalate to the more serious criminal penalties.

Enforcement — Given the vague and over broad drafting of many VPR ordinances, owners will likely need to appeal decisions and time frames for filing appeals are often short. Further, the forum to hearing the appeal may or may not appropriate. As communities typically envision vacant dilapidated structures owned by slum lords as the target of the legislation, the appeal board will often be one that deals with that type of structure. With the over broad reach of many VPR ordinances, the appeal forum may be ill suited for its purpose.   Also, VPR ordinances frequently include language to limit the process for further appealing the decisions. While it is good to have clear language as to when administrative orders become final, that should not prevent a final administrative order from then being appealed through the court system. Vague or unduly limiting language on the appeal process can create due process concerns.

Whether these VPR ordinances actually work is open to question. Most communities do not have clear metrics in place to determine this, and they may unintentionally harm their residents in the process.   

“Reasonable Surface Rights” Can Include Strip-Mining

(So WATCH YOUR LANGUAGE with deeds, contracts and leases; and
“Say what you mean, precisely, or a judge will decide what you meant #6”)

Typically, courts follow a well-known principle of interpreting contract (or deed) language so as to carry out the intent of the parties, when that intent is evidenced by the contract language. 

The problem, of course is that it is the “trier of fact” (judge or jury) that determines the intent of the parties within the four corners of a contract. Courts typically refuse to consider extrinsic evidence of a party’s intent (offered by such party) if the court determines the contract language is clear and unambiguous. Because of this deference to (how a judge or jury interprets) contract language, sellers, buyers, tenants and landlords are strongly advised to “say what they mean, precisely, or a judge will decide what they meant”. Unintended results are often the norm for parties to a contract, lease or deed who could have been a lot clearer with their language.

Failure of a deed to clearly specify what constitutes (or what does not constitute) “reasonable surface right privileges” in a reservation of mineral rights, for example, resulted in a dispute recently decided by the Ohio Supreme Court (in Snyder v. Ohio Dept. of Natural Resources, Slip Opinion No. 2014-Ohio-3942) that could easily have been avoided by language to the effect “excluding strip-mining.”

The basic facts of the case are as follows:  The state of Ohio and the Ohio Department of Natural
Resources (collectively, “ODNR”), bought a certain tract of land comprising approximately 651
acres, located in Brush Creek Township, Jefferson County, Ohio from a seller who reserved all mineral rights to the property, “including rights of ingress and egress and reasonable surface right privileges.” Ronald Snyder later acquired the mineral rights from that seller and then met with ODNR to inform them of his desire to strip-mine the coal from about 10% of the acreage. When ODNR refused to allow strip-mining on the property, Snyder filed a complaint against ODNR seeking a declaratory judgment to the effect that the “reasonable surface right privileges” language in the deed allowed them to strip-mine a reasonable portion (10%) of the property.

ODNR argued, based on prior case law that there must be a clear expression of the intent to reserve the right to strip-mine in a mineral rights reservation. It reasoned that a reasonable person could not construe the deed to allow total destruction of a considerable portion of the surface through strip-mining merely because it permits reasonable surface right privileges incident to mining. In other words, strip-mining could never be a reasonable use of the surface because by its very nature it destroys the surface.

Snyder argued that the deed’s language is ambiguous as to what activity constitutes the exercise of “reasonable” surface right, and accordingly, it should be allowed to present its own evidence beyond the contract to prove that strip-mining the coal from 60 of 650 acres is reasonable.

The trial court ruled in favor of the ODNR, Snyder appealed that decision and the Jefferson County (7th District) Court of Appeals affirmed the trial court’s ruling. The case was then appealed to the Ohio Supreme Court.

In a 6-1 decision, the Ohio Supreme Court concluded that the contract (deed) between the ODNR and the mineral rights holders did not exclude strip-mining as a method to extract coal from 10 percent of the Jefferson County property by use of the language “including…reasonable surface rights”. The case will now be sent back to the trial court to determine the extent of strip-mining that is reasonable, as required by the contract.

In support of its decision, the court explained that it did not rule in prior cases that strip-mining, as a matter of law was not a “reasonable surface right” (in spite of strong language in such prior cases concluding that strip-mining “necessarily and unavoidably causes a total destruction of the surface estate.” Rather, the court reasoned it was merely interpreting the contracts at issue in those cases that contained language “peculiarly applicable to deep-mining techniques.” Citing language from one of such cases, the court stated: “the intent of the parties is controlling, and * * * when deep-mining language is used exclusively, courts must assume that strip-mining was not intended.” While the court did admit that strip-mining is injurious to the surface of a property, it reasoned that “all mining, whether deep-mining or strip-mining, damages the surface, and strip-mining is not inherently more detrimental to the owner of the surface interest, though some of [their] cases might suggest otherwise.”

The court distinguished the contract in Snyder as containing no language that is peculiar to deep mining; therefore, the court concluded that the parties did not intend to preclude strip mining by the use of the term “reasonable surface right privileges.” Facts also important to the court were that strip-mining was well known in Jefferson County when the contract was signed, and in fact, some areas of the property at issue were strip-mined before the ODNR acquired it. Thus, according to the court “there is reason to believe that the signatories to the original contract understood that ‘reasonable surface right privileges’ included the right to strip-mine, and there is no reason to believe that the signatories intended to exclude strip-mining."

In interpreting the ODNR contract (deed), the court refused to acknowledge that the term “reasonable surface right” was ambiguous “merely because different parties interpret the clause differently.” Though the court concluded that strip-mining, in general was a reasonable surface right in this case (based on its interpretation of the contract), it did, however admit that a determination as to the extent, duration and remediation of strip-mining that was reasonable, was non-defined, and therefore the Ohio Supreme Court remanded the case to the trial court for a determination of what is reasonable strip-mining.

What is the moral to this story? Say what you mean, precisely, or a judge will decide what you meant.  The Supreme Court of Ohio even agrees with our moral/philosophy. As stated by the court in Snyder: “We are not persuaded that [the parties] intended the phrase to mean nothing other than customary ingress, egress, and concomitant surface rights. If they had, they would have used contract language that was normal and customary for that purpose” In other words, if you don’t want a party you have given mineral rights to, to strip-mine, clearly state that they cannot extract any such minerals by strip-mining.

CLE Update: Upcoming real estate seminars in Ohio

With the real estate market heating up, continuing education seminars on real estate topics are increasing. Below are links to Sterling Education, NBI and the OSBA for their seminars, webinars, teleconferences, etc. that are being offered between now and year end.


Sterling Educational Services – Sterling Education as 2 seminars scheduled.

*Tenant-Landlord Law in Cleveland on September 26, 2014
*Landlord-Tenant Law: Leases, Evictions, Litigation and Settlements in Dayton on October 2, 2014

National Business Institute – NBI has 43 seminars, webinars and teleconferenced scheduled through December 31st that cover real estate law and land use.  Here is the link to their list of real estate related seminar topics, dates and locations.

Ohio State Bar Association – The OSBA’s online calendar for CLE wasn’t working when I was drafting this article. Here is the link to their page to access both a listing of live seminars and self-study CLE (includes online CLE and webcasts). Hopefully it will be functioning properly by the time this publishes.

Pay your Taxes before your Lender Redeems your Property

A mortgage holder has the right to redeem (take back) real property that is the subject of a real estate tax foreclosure when the owner does not pay taxes on the land, according to the recent decision of the Ohio Supreme Court in In re Foreclosure of Liens for Delinquent Land Taxes v. Parcels of Land Encumbered with Delinquent Tax Liens, Slip Opinion No. 2014-Ohio-3656).

The facts of this case are relatively straight forward. In June, 2003, Brandi and Troy Wagner executed a promissory note and mortgage in favor of Vanderbilt Mortgage and Finance to finance their purchase of a mobile home and land in Coshocton County. The Wagners failed to pay taxes on their property, so the county treasurer initiated a tax foreclosure proceeding for delinquent taxes (in the amount of $825.84). Because the Wagners did not respond to the foreclosure complaint, the trial court granted the treasurer’s motion for default judgment and ordered the sheriff to sell the property.

Although not explained in the record, the sheriff held two sales of the property; one at which Vanderbilt purchased the mobile home. At the other sale, James Matchett purchased the property with a winning bid of $15,100 and then deeded the property to Alan and Janette Donaker. Before either sale of the land was confirmed, however, Vanderbilt filed a notice to redeem the property and a motion to vacate the prior sales and foreclosure.

The trial court granted Vanderbilt’s motion, thereby vacating and setting aside the sale and entry of foreclosure. The trial court determined that Vanderbilt (a mortgage holder with a recorded interest in the property) was a “person entitled to redeem” under Ohio Revised Code Section (“R.C.”) 5721.25.

The Donakers and the Coshocton County Treasurer then appealed the trial court’s decision to the Fifth District Court of Appeals. The court of appeals held that Vanderbilt was not entitled to redeem the property, and reversed the judgment of the trial court.

Vanderbilt then appealed to the Ohio Supreme Court which characterized the issue
before the court as whether or not Vanderbilt, as a mortgage holder, qualifies as “any person entitled to redeem the land” under R.C. 5721.25.

Pursuant to the second paragraph of R.C. 5721.25: “any person entitled to redeem the land (emphasis added) may do so by tendering to the county treasurer an amount sufficient, as determined by the court, to pay the taxes, assessments, penalties, interest, and charges then due and unpaid, and the costs incurred in any proceeding instituted against such land under Chapter 323 or this chapter of the Revised Code, and by demonstrating that the property is in compliance with all applicable zoning regulations, land use restrictions, and building, health, and safety codes.”

Appellee Alan Donaker contended that the only reasonable interpretation of the statute is one that precluded anyone but the property owner from being a “person entitled to redeem” under R.C. 5721.25 and that broadly interpreting the phrase “any person” would thwart the intent of sheriff’s sales by allowing mortgage holders to sit and do nothing until after the sheriff’s sale.

Vanderbilt contended that when read in conjunction with R.C. 5721.181, which provides the form of notice required for tax foreclosure proceedings—the phrase “any person entitled to redeem the land” under R.C. 5721.25 includes “any owner, or lienholder of, or other person with an interest in the property” because those exact words are utilized in R.C. 5721.181.

The Supreme Court of Ohio agreed with Vanderbilt, reasoning that when statutes are clear and unambiguous, they must apply the statutes as written. The court cited previous cases holding that: (1) the court must “give effect to the words used, refraining from inserting or deleting words,” and (2) that the meaning of “any” [in a statute] is “every” or “all.”

The court also backed up its decision by contrasting R.C. Chapter 2329 (which governs judicial foreclosure proceedings such as mortgage foreclosure) with the language governing tax foreclosures in R.C. 5721.25. In R.C. 2329.33, the Ohio General Assembly specifically limited the right of redemption to “the debtor.” But in R.C. 5721.25, the legislature instead utilized broader language by granting the right of redemption in a tax foreclosure proceeding to “any person entitled to redeem.”

Acknowledging that their decision might be interpreted as unfair to property owners,
the court justified its holding by concluding that “any perceived inequity caused by our holding to purchasers or property owners like the Wagners must be balanced against the rights of others with competing interests, including those of a mortgagee, or lienholder, to protect its interest in the property where a mortgagor, or property owner, has fallen
delinquent in tax payments.”

What’s the moral of this story? Pay your taxes…at least before your county files a foreclosure action and your lender redeems your property.