Affidavits Required by Ohio’s New Line Fence Law

(Published/Edited with Permission from Chicago Title Cleveland)

On September 30, 2008, the State of Ohio enacted a new "line fence law". This new law, also known as the "partition fence law" refers in several places to affidavits (formal, sworn statements of fact) that certain rural landowners must file in order to establish certain legal rights provided by the legislation. These affidavits help determine who is responsible for the costs of building and maintaining a line fence. As with any filing, timing can be an issue. There are several statutory deadlines the rural landowner must meet.

For example, pursuant to O.R.C. 971.05 (re-produced below), a landowner may file an affidavit that establishes that a fence line has existed on a property division line within two years prior to filing the affidavit. In this instance, the landowner must file the affidavit by September 30, 2009. Timely filing the affidavit would ensure that the property owners on each side of the property line would be required to share in the cost of a replacement fence vs. one property owner being saddled with 100% of the cost.

Pursuant to O.R.C. 971.06, a landowner who wishes to establish that a line fence existed on a property line, but has subsequently been removed, must file an affidavit to that effect within one year of removal. Failure of the landowner who wishes to remove a line fence to (i) file the affidavit, and (ii) send a 28 day advance notice to adjoining landowners expressing his/her intent to remove the fence, will result in such landowner being responsible for 100% of the cost of fence replacement.

O.R.C. 971.05 Affidavit Concerning Previous Partition Fence
(A) If there is evidence that a partition fence previously existed between the adjoining properties of two owners, one of the owners, or both, may file an affidavit with the applicable county recorder to be placed in the partition fence record established under section 971.15 of the Revised Code stating that a partition fence existed between the adjoining properties within two years prior to the filing of the affidavit. The affidavit also shall specify the location of the properties and that the fence has been removed and not replaced. The affidavit shall be filed no later than one year after the effective date of this section.

(B) If an affidavit is filed under this section, section 971.06 of the Revised Code applies.

(C) If an affidavit is not filed under this section, section 971.07 of the Revised Code applies.

Effective Date: 2008 HB 323 09-30-2008

For more in depth information on this law, click on the following link:

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The Demographic of Today's Renter

"The Renter Demographic: Who Are They Now?" is the title of an article posted by Howard Bell on the American Apartment Owners Association web site.

The premise of Mr. Bell's article is that the rental demographics are changing and apartment owners should be aware of this and adjust their approach accordingly.

The 2 main drivers of the future rental market are the children of baby boomers, known as the echo-boomers, and empty nesters. Echo-boomers account for approximately 1/3 of the population and grew up on the Internet instead of TV. According to Mr. Bell, they are more wired, multi-cultural and hold more traditional values than many of their parents.

Empty nesters are the over-60 renters who are trading their suburban homes and yards for apartments that have close access to shops and entertainment.

To take advantage of these large and growing segments of the rental market, landlords need to understand what these renters value and incorporate new design elements and amenities that will make the apartment more appealing to them.

Click here to access Mr. Bell's article.

CLE Update: Attorney's Role In LEED Construction

ALI-ABA is sponsoring a live telephone seminar & live audio Webcast on the "Attorney's Role in LEED Construction" on Friday, Mary 29, 2009 from 12:30 pm to 1:30 pm EDT.

Topics include:

  • What is the LEED rating system and what other standards exist?

  • Will one system be the preferred standard?

  • What are the risks to Green Building and how do I manage these risks for my clients?

  • What are the benefits to LEED certification?

  • What does the future hold for Green Building?

  • What legal issues are unique to Green Building and LEED certification?

For more information, click here or call 215-243-1601.

Ohio House Approves Six (6) Months "Time Out" On Foreclosures

The Ohio House approved House Bill 3 yesterday (by a 54-43 vote) which calls for a six (6)month moratorium on foreclosures of occupied homes in Ohio.

Ohio House Bill 3 (H.B. 3), which was introduced in February, also provides the following:

1. Allows defendants to continue occupying their properties after their foreclosure, by paying rent;

2. Increases the filing fee for foreclosure cases by $750.00, to fund assistance to homeowners in distress; and

3. Authorizes Ohio judges to "rewrite" existing mortgage agreements; and authorizes the Ohio Department of Commerce to implement a loan modification program. Specifically, Section 2308.04 of the Bill permits Common Pleas judges to reduce the principal amount and/or interest rate of home mortgage loans. Section 1223.34(B) empowers the Department of Commerce to (1) reduce the interest rate on a home loan; (2) extend the period of time for a homeowner to repay his/her home loan; (3) defer and/or reduce the amount of principal due on a home loan; and (4) consider "other factors that the Director determines are appropriate."

It is this third provision summarized above, that is the most controversial, and potentially unconstitutional. According to several attorneys around the State, and Maurice Thompson, Director of the Buckeye Institute for Public Policy's 1851 Center for Constitutional Law (See Blog of March 11, 2009- "although the sponsors of this bill have expressed the intent to rescue homeowners who are currently in foreclosure or risk thereof, it is clearly unconstitutional to interfere with existing mortgage agreements in Ohio".

The claims of unconstitutionality center around the Ohio Constitution's prohibition on "retroactivity" (in this case, enforcing a law that changes the terms of existing contracts) and the "Contracts Clause" (Article I, Section 10, clause 1) of the United States Constitution ("No State shall enter into any Treaty, ... or pass any...Law impairing the obligation of contracts").

Supporters claim the Bill passes "constitutional muster" because it is reasonably related to a significant and legitimate public purpose (i.e. rescuing homeowners and thwarting a major recession).

According to Aaron Marshall's article (House Approves Bill Halting Foreclosures) in today's Cleveland Plain Dealer, however, we may not get a chance to further debate constitutional issues. "The Bill now heads to the Republican-controlled Senate, where it has an uncertain future", as legislators are currently focusing their attention to the State budget for 2010-11.

Fair housing Complaints on the Rise in Northeast Ohio

As Demand for rental housing goes up, apparently, so do fair housing complaints - in Northeast Ohio.

In the May 15, 2009 edition of the Cleveland Plain Dealer, Robert Smith reports that more than twice the number of complaints (and the most recorded in 19 years) in 2007, were filed in 2008 (254 in total). According to Mr. Smith (citing a study by the Housing Research & Advocacy Center of Cleveland), people with physical, mental and emotional disabilities were behind much of the increase. According to the Housing Research & Advocacy Center of Cleveland, complaints by people with disabilities now account for one-third of all fair-housing complaints under state and federal laws that also protect renters and home-seekers from discrimination based on race, sex, religion, and family status. According to the law, “reasonable accommodations” (such as allowing “seeing - eye dogs”, even if no pets are allowed, must be made). Complaints based on race doubled between 2007 and 2008.

Most complaints are mediated through the Ohio Civil Rights Commission, but violators of the Fair Housing Act can face civil action fines of up to $11,500 for the first offense and up to $50,000 for repeated offenses.

In addition, the following, additional penalties may result:

* Unlimited punitive damages if the case proceeds to federal court

* Loss of real estate agent's professional license

* Compensation for actual damages, including humiliation, mental
distress, and loss of housing opportunities

* Equitable relief; for example, access to the housing in question or
providing comparable housing

* Structural changes to make housing facilities accessible.

Further, in order to vindicate the public interest, the following remedies may be sought:

* Prevention of future housing discrimination

* Remedial affirmative activities to overcome housing discrimination

* Reporting requirements

* Monitoring and enforcing activities

Hopefully, the above penalties will give extra incentive (i) for those unaware of the law to consult a legal professional to become aware, and act accordingly; and (ii) for those already aware to stop any discriminatory practices.

For the full Cleveland Plain Dealer story, see:

CLE Update: May/June OSBA Seminars- Eminent Domain, 1031 Exchanges, Commercial Leases

Eminent Domain

Practice Area: Real Property
3.0 CLE Credit Hours
Wed 20-May-2009 - OSBA, Columbus
Wed 20-May-2009 - WEBCAST
Wed 27-May-2009 - Forum Conference Center, Cleveland

* Issues of compensation
* Regulatory takings
* Takings for economic development

Registration: Program begins at 1 p.m., concludes at 4:15 p.m.
Pre-registration Tuition: $165.00 OSBA member / $206.00 non-member
Walk-in Tuition: $190.00 OSBA member / $231.00 non-member
Course #09-026
1031 Real Estate Exchanges

Practice Area: Real Property
3.0 CLE Credit Hours
Wed 20-May-2009 - WEBCAST
Wed 20-May-2009 - OSBA, Columbus
Wed 27-May-2009 - Forum Conference Center, Cleveland

* Pros and cons of 1031 exchanges
* Recent changes in the law
* Capital gains issues
* Types of 1031 exchanges available and how to execute them

Registration: Program begins at 8:30 a.m., concludes at 11:45 a.m.
Pre-registration Tuition: $165.00 OSBA member / $206.00 non-member
Walk-in Tuition: $190.00 OSBA member / $231.00 non-member
Course #09-027

Commercial Leases

Practice Area: Real Property
6.0 CLE Credit Hours
6.0 Specialization - Business, Commercial and Industrial Real Property
6.0 Real Estate CE Pending
Thu 4-Jun-2009 - OSBA, Columbus
Thu 4-Jun-2009 - WEBCAST
Thu 11-Jun-2009 - Forum Conference Center, Cleveland

* Lease terms
* Damage to property
* Mitigation of losses
* Operating expense and tax provisions
* Leasehold improvements

Registration: Program begins at 8:30 a.m., concludes at 4:15 p.m.
Pre-registration Tuition: $200.00 OSBA member / $250.00 non-member
Walk-in Tuition: $225.00 OSBA member / $275.00 non-member
Course #09-193

For more information and/or to register, contact:

There Is Some Life in Retail

Given our current economic climate in the Midwest, particularly when it comes to real estate, I love it when there is any good news to report.

One of the headlines yesterday on was "Best Buy becomes first tenant in Kansas City retail center." While that is good news for KC, not any city in Ohio, it is a step in the right direction and a tiny ray of light hinting that the end of the tunnel is nearing. Retail has been one of the hardest hit areas in commercial real estate as the recession and economic worries in general has caused consumers to clamp down on spending.

The news that a retail center is finding big box tenants to anchor a new location is heartening. Walmart has also committed to this retail center. Providing two strong anchors for the site. Again, any new activity on the commercial real estate front is a positive sign and I will take whatever good news I can find.

CLE Update: Real Estate Closings A-Z

The National Business Institute ("NBI") is sponsoring a continuing education seminar titled "Real Estate Closings A-Z: Navigate your closings with confidence" to be held on August 3rd in Akron, Ohio (Sheraton Suites - Cuyahoga Falls) and on August 4th in Cleveland, Ohio (Holiday Inn - Independence).

Registration is from 8:30 am - 9:00 am, with the seminar running from 9:00 am through 4:30 pm.

For more information or to register, contact NBI at 1-800-930-6182 or


Earlier in the year (February 2, 2009), we posted on our Site a blog dealing with the issue of whether or not extraordinary delays in issuing permits constituted a “taking,” requiring just compensation be paid pursuant to the Ohio and United States Constitutions. The Supreme Court in State ex rel. v. Middlefield, 120 Ohio St.3d 313 (2008), answered in the affirmative, but only if governmental bad faith is proven, and there is no property owner delay.

Another “out of the ordinary takings case” was recently decided by the Ohio Supreme Court on March 5, 2009: State ex rel. Blank v. Beasley, 121 Ohio St. 301, 2009-Ohio-835. In Blank v. Beasley, the Court was faced with the question of whether or not private property that is damaged by public use constitutes a taking for public use. If a taking is proven, Ohio law requires that public authorities initiate appropriation proceedings so that “just compensation” is paid to the property owner. State ex rel. Blank v. Beasley was actually a combination of two actions resulting from similar claims in connection with the Ohio Department of Transportation’s widening of State Route 5 through Cortland, Ohio, including upgrading curves, sidewalks and drainage. To complete the project, the Department required easements over the properties in question, perpetually (to construct and maintain storm sewers) and temporarily (to construct drives and grade the properties). Since ODOT and the property owners could not reach an agreement amicably, ODOT filed appropriation proceedings to “take” the easement rights and establish just compensation for such rights as required by law.

There was no dispute regarding the easements being “takings” requiring just compensation. The dispute arose because both property owners complained that other “parts” of their properties were appropriated (and they should be adequately compensated for same), as a result of ODOT trucks using existing parking lots to park and stage equipment (also damaging the lots), and various damage claims. The damage claims including breaking of sewer lines; hitting support posts; moving water lines (causing water backup) and breaking of gas lines.

The Director of ODOT argued that the damage claims did not rise to the level of a constitutional taking of private property, because they were claims for damage caused by negligent or other tortuous conduct of the State’s contractors, and consequently, the damage was “unrelated” to the public use of the project. The property owners replied that the further damage and intrusions resulted directly from the work being performed on the appropriated property and the State should have anticipated this. Neither party argued about the extent of the damages. The sole issue was whether or not the damage and other intrusions were “takings” requiring just compensation from the State of Ohio.

The Court answered the issue affirmatively, and negatively. Yes, the State’s operations and/or parking of heavy construction equipment on the property owners’ parking lots (and the ensuing damage of same) constituted a taking; and no, the other damages did not constitute a taking.

In justifying its holding, the Court first acknowledged that Ohio only guarantees just compensation when private property is taken for public use, in contrast to constitutions of other states that guaranty compensation for private property that is taken for or damaged by public use. Notwithstanding that acknowledgment, however, the Court reasoned that there were situations where damage by public use would constitute a taking by public use. The Court cited decisions where the property owner established that the damage was intentionally directed at their property. In those cases, the damage would constitute a taking according to the Ohio Supreme Court. On the other hand, the Court (quoting decisions from Ohio, Wyoming, Connecticut; and treatise authority) explained that “if damage for which recovery is sought is a result of negligent construction, recovery may not be had in a condemnation proceeding; the owner is relegated in such cases to a common law action for damages”. It was these “negligence related decisions” that led the Court to conclude that the pipe breakings, and other related damages in Blank v. Beasley were the cause of the contractor’s negligence, not foreseeable by ODOT, and not, therefore, compensable as a taking of property.

The Court in Blank v. Beasley, however, determined that ODOT’s parking and operation of the construction equipment in the parking lots (and the damage they caused) was not mere negligence. While the State may not have intended the parking lot damage, given the weight of the equipment and the extent of the encroachment, the Court held that the State acted with “knowledge amounting to a substantial certainty” that its conduct would cause such damage, and that was good enough to constitute a taking.

If it seems that the Majority’s justification for its conclusion “comes out of the blue,” you would be in good company as the two dissenting Judges in this decision said exactly that. From the property owners’ vantage point, however, this case seems to widen the “spectrum definition of takings,” to include “public damages” that were not necessarily intentionally caused, but resulted from foreseeable circumstances beyond mere negligence. Governmental agencies can argue, however, that the Court in Blank v. Beasley clarified its holding, reiterating that the foreseeability of the damage is a “factor of great weight,” but “not wholly determinative” of the issue.