ALI-ABA Live Webcast:Green Building Essentials for Lawyers

Tuition: $199

Date: Friday, September 26, 2008
Experts will explore common challenges and recommend best practices to help your clients take advantage of Green Building opportunities.

If you have questions such as: What Green Law issues affect your clients? What is Green Building? What statutes, regs, and cases apply? What mandates and incentives apply to your clients? This is the Webcast for you.

This unique program focuses on the legal issues that attorneys must remain cognizant of when advising clients on green real estate projects. This program offers a distinctive view on the green building endeavor by emphasizing the basics of green building and its background, current programs and laws throughout the country and legal perspectives of sustainable design.

Topics include:
1) Green building overview: green building, its advantages, and common misconceptions;
2) Mandates and incentives for green building
3) Program basics of LEED, Green Globes, Model Green Homebuilding
4) Is green building for everyone: Standard 189.1P
5) Overview of the LEED process

More information...

Chartwell Group Cleveland Auction To Be Held On October 28, 2008

One of the biggest commercial real estate auctions held in Cleveland in years will be put on by Chartwell Group LLC on October 28, 2008 at The Crown Plaza Cleveland Airport Hotel.

Property to be auctioned includes income producing (industrial, commercial, retail and multi-family), office redevelopment, hotels, and land ready for commercial development.

For more information, including details about each parcel to be auctioned, click here.

Upcoming NBI real estate seminars

The National Business Institute has a few real estate seminars scheduled for November and December that will provide continuing eduction credit for CLE, and other licenses as well. They are as follows:

* Real Estate Law: Advanced Issues and Answers -- Cleveland, Ohio on November 18, 2008 and Akron, Ohio on November 19, 2008

* Drafting Commercial Real Estate Leases: The Ins and Outs of Protecting Your Interests - Cleveland, Ohio on December 2, 2008

* Resolving Real Estate Title Defects -- Cleveland, Ohio on December 16, 2008

For more information call 1-80-930-6182 or go to on the Internet.

Know How You'll "Hold" Title to Real Estate...Before the "Deal'n 's Done

(Say What You Mean, Precisely, or a Judge Will Decide What You Meant-#3)

Once you have negotiated a satisfactory purchase agreement (See “Watch Your Language With Off The Rack Purchase and Sale Agreements” in the “Watch Your Language” section of our Blog Site) and you have “done the right deed” (See “Watch Your Language and Do The Right Deed” in the “Watch Your Language” section of our Blog Site), your next, but often overlooked step is to decide how you wish to take title to the real estate. How does thee take title? Let us count the ways.

If you are an individual, there are several ways you can hold title:

1. Individually- You, (or your spouse, if applicable) could hold title in your individual name;
2. Tenants-in-Common - This form of taking title exists when two or more persons wish to buy property and own it together. If any of the tenants in common die, their interest passes to their heirs, not to the remaining tenants;

3. Joint Tenants with Right of Survivorship - This form of taking title is similar to the Tenants-in-Common ownership, where two or more persons may acquire title to real estate in varying “undivided percentages of interest”. Upon the death of one of the Joint Tenants, however, that particular interest automatically passes to the surviving Joint Tenant(s), without the need to go through probate. Often, husbands and wives will take title to real property as “Joint Tenants with the Right of Survivorship”.

Individual(s) can also form an entity (e.g., corporation, limited liability company [LLC]); or create a trust, for example, and have the Trustee hold property for the Trust. In fact, that is the only legal way for trust property to be held (see below).

With regard to individual or joint ownership of property, the most common, and fatal error we see is individuals intending to hold property jointly, with rights of survivorship, who forget to ensure that the required “magic legal words” are used to create such title. The “magic legal words” for a husband and wife wishing to hold title jointly, with survivorship, are as follows: “To __________ and ________, husband and wife, for their joint lives, remainder to the survivor of them”. Using variations of the foregoing, but not the specific wording has caused many courts to find what may have been intended as a joint tenancy with right of survivorship, as a tenancy-in-common instead. Bottom line: that deadbeat relative you meant to disinhereit will get your share, when you die, instead of your fellow property owner(s). Yet one more example of the recurring "moral of our 'Watch Your Language' stories": say what you mean, precisely, or a judge will decide what you meant.

If your trust or corporation is taking title, or selling its property, there are required “magic legal words” and serious repercussions for not using same for these entities as well.

In the corporate setting, we have seen single member LLC’s making the mistake of taking title in their individual names, rather than their recently created LLC name. This mistake can be “just what the doctor ordered” for a party looking to “pierce the corporate veil” and sue the principals of the LLC (rather than the LLC itself) on the basis that the LLC disregarded corporate formalities. The main reason one incorporates or forms an LLC is to limit liability to the individual’s interest in the company, rather than put their personal assets at risk. The moral for this story? Say what you mean, precisely, and make sure you use the required “magic legal words”.

Parties wanting to transfer property to a trust or from a trust must also use “magic legal words” or run the very real risk of having a court nullify their intent, and action. The best example of this unintended result is the recent 12th District Ohio Court of Appeals case: Thompson v. McVey, 2006 Ohio Ap. Lexis 7042 (12th Dist.). In the McVey case, it was intended that the trust receive certain farm property and years later transfer that property to a family member. In both deeds (to the trust and from the trust) the language designated the grantee and grantor respectively, as the “George E. Rhodes and May Rhodes Trust”. The fatal error of the Rhodes’s is that in Ohio, a trust is not an entity capable of taking title; it is the Trustee, not the trust itself, who holds title to trust property. While the probate court (the lower court in the McVey case) was convinced with good, equitable arguments and initially ruled that the parties meant for the property to come in and then out of the trust, the 12th District Ohio Court of Appeals in McVey, reversed that decision and held that since the attempted transfer was void (since it was not in the name of the Trustee), the property would remain that of the original grantor (not the trust). The moral of this story? Sometimes it is not enough to say what you mean precisely, if what you have said is not the correct statutory or case based “magic legal words” to effect your intent.

There are different estate, tax, liability, business and management issues that arise from holding different types of title to real estate. The overriding moral in all of these stories is that advice from business and legal advisors should always be sought before the deed is prepared and the "deal' in's done".

Mortgage Rates Fall On News of Lehman's Failure and Merrill Lynch Sale

The New York Daily News published an article by Kimberly Palmer on Monday regarding the effect on mortgage rates due to the failure of Lehman Brothers and the sale of Merrill Lynch to Bank of America. The bottom line effect is a temporary lowering of mortgage rates. Click here to read a copy of Ms. Palmer's article.

The Old West is New in Ohio- "Ohio's Castle Doctrine" (Ohio Senate Bill 184) is Now in Effect

A person’s home is now their castle in Ohio; and their vehicle is now their covered wagon. On September 9, 2008, Ohio Senate Bill 184 (aka “the “Castle Doctrine”) went into effect.

Under the new “Castle Doctrine”, if someone breaks into your home, you will now have the benefit of the doubt if you take action against the intruder, even deadly action. The new law provides an automatic presumption that you acted in self-defense and shifts the burden to police/prosecutor to prove otherwise.
Not only do homeowners not have to prove intent, they do not have to retreat before taking defensive action, and can use force greater than what they face. Under the old law, homeowners had to retreat, if there was an opportunity to so, could only use deadly force if they were faced with deadly force, and no matter what force was used, the homeowners had to justify their actions and prove they acted in self-defense.

The Castle Doctrine also applies to occupied vehicles and clears up confusion (but not without controversy) re: concealed carry permits. Now, such permit holders can transport loaded guns, or unloaded guns and ammunition, in an unlocked glove department or center console. Under the old law, unloaded guns and ammo had to be kept separate and in a locked trunk or glove compartment.

Also included in SB 184 is: immunity to self-defending homeowners from civil lawsuits by intruders; ability for non-permit holders to legally transport firearms by automobile; ability for handgun permit holders to pick-up/drop off a child in a school safety zone; and legal fees to gun owners to retrieve their wrongfully held weapons.

While the Buckeye Firearms Association wants you to call Governor Strickland and thank him for supporting the Castle Doctrine, many other individuals and organizations are upset with the new law, particularly, the new “concealed carry” provisions. Stephen Loomis, president of the Cleveland Police Patrolman’s Association recently echoed the criticism (in a Plain Dealer posting by Columbus Bureau reporter Reginald Fields) by stating: “You just made it easier … to not only carry the gun, but to use it”.

In this author’s opinion, welcoming comments are in order. So, welcome back to the Old West, in new Ohio.

Hidden Risks in the Current Construction Environment

The July 2008 issue of Buildings Magazine published an article titled "Hidden Risks in the Current Construction Environment" by Paul E. Himes. In the article, Mr. Himes addresses many of the new and increased risks that exist in today's construction environment and how to mitigate such risks.

Some of the risks covered include contractor and subcontractor defaults, scheduling delays and security of construction materials. For anyone working in or with the construction industry, this article is worth reading. Click here to access the complete article.

Ohio Lawmakers call Fannie/Freddie Takeover 'Necessary'

Jonathan Riskind of the McClatchy Tribune Business News published an article this week on the reaction of Ohio lawmakers to the federal takeover of Fannie Mae and Freddie Mac. Between the two, they own or guarantee trillions of dollars worth of mortgages across the United States.

The overall reaction and consensus of our lawmakers appears to be that while such a move is unfortunate and undesirable, it was necessary. Click here to read a copy of Mr. Riskind's article.

Forest City Reports Financial Results

Forest City Enterprises, a Cleveland-based real estate company, recently announced its second-quarter and year-to-date financial results on the PR Newswire.

EBDT (Earnings Before Depreciation, Amortization and Deferred Taxes) for the second quarter was $88.3 million, or $0.82 per share, a 24.2% increase on a per share basis compared with last year's second-quarter results. EBDT for the 6 months ended July 31, 2008 was $104.3 million, or $0.97 per share, compared with last year's $105.7 million, or $0.98 per share.

Clice here for the full earnings release.

Staubach Company Merger with Jones Lang LaSalle

Many in the real estate industry are already aware of the merger of The Staubach Company with Jones Lang LaSalle, which was completed this summer. Below are links to some of the articles regarding that planned merger.

* Article from JonesLang web site

* Article on web site

* Staubach/Jones Lang LaSalle joint press release