Real Estate Attorneys

Yes. In Ohio (and most other jurisdictions), the “Statute of Frauds” controls, which basically is an ordinance (originating from a 1619 British Act of Parliament) establishing that certain contracts must be memorialized in a signed writing, to be enforceable.

Specifically, Ohio’s Statute of Frauds (ORC Sec. 1335.05) provides that “no action shall be brought upon a contract or sale of lands or interest in or concerning them, unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith”.

Yes. If you define “Boilerplate” as tough, or unfair, one-sided contract language, as a general rule, courts will uphold such language in commercial agreements, unless it is contrary to statutory law or public policy. Courts traditionally presume that commercial parties are on more of an equal playing field and are more sophisticated concerning commercial real estate transactions, since both parties to a commercial transaction will usually have attorneys to review their documents. The old adage that if you represent yourself, you often will have a fool for a client is just as true in real estate as it is in the courtroom. A careful review by an attorney, before you sign on the dotted line can save thousands, even millions in unbudgeted expenses and liability.

No. Inspections and other due diligence should always be done by the buyer of any property, regardless of any statements of the seller (whether on a Disclosure Form, in the form of representations and warranties in the contract, or otherwise). As President Ronald Reagan told Mikhail Gorbachev a number of years ago regarding reducing nuclear arms, “Doveryai, no Proveryai” (“Trust, but verify”). As a general rule, “Caveat Emptor” is still alive and well in Ohio. The Disclosure Form is helpful, but provides only limited information/protection.

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

• Individually – You could hold title in your individual name
• 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
• 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”
• Via a legal entity – 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. For commercial property, we most often advise that title be held in a new LLC or other entity

Technically, no.

A deed need not be recorded (in the office of the county recorder in the county in which the property is located) to be valid as between grantor (“Seller”) and grantee (“Buyer”).   However, the filing and recording of same is good evidence that the deed was delivered to the Buyer; one of the requirements for a deed to legally transfer title.

• Individually – You could hold title in your individual name
• 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
• 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”
• Via a legal entity– 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. For commercial property, we most often advise that title be held in a new LLC or other entity

Without a recording of the deed, the grantee has little protection from its grantor, or anyone else from recording liens or other encumbrances against the title which would have priority over the unrecorded deed. Moreover, if the grantor transfers the same property by deed to another grantee (and the second grantee has no notice of the first transfer), prior to the first grantee taking possession; the second grantee owns the property and the first grantee owns nothing but a lawsuit.

An owner transferring property by way of a general warranty deed is providing a warranty to the buyer (the grantee) for any and all prior problems with title, not just title issues that occurred during the owner’s period of ownership.  On the other hand, when transferring property to a grantee/buyer by way of a limited (or special) warranty deed, the owner is limiting the warranty to the period during which the owner owned the property.

If you are financing a residence or commercial property, your lender will require you to obtain a Loan Policy of Title Insurance as protection for the lien of the lender’s mortgage.  You may also obtain an Owner’s Policy of Title Insurance to protect your ownership of the property from such potential title threats as boundary disputes, errors in your deed, claims by an ex-spouse, and liens from contractors or previous lenders.  We certainly recommend that an owner of real property obtain the protection of title insurance.

It depends on the type of easement you need. Exclusive means that you are the only party that can use the easement for its stated purpose.  Non-exclusive means that additional parties can be granted the right to use the same easement as you.  For example, if you need a driveway easement for access, you would want that to be an exclusive grant to you so that others cannot be granted the right to also use your driveway easement.

There is no clear answer.  Many believe that arbitration, because it is a private and confidential proceeding (no public records), with limited discovery,  will cost less than litigation. But, that is not always true. One concern about litigation is that judges and juries do not understand complicated construction disputes, which can lead to unpredictable and unsatisfactory results; properly selected arbitrators can eliminate this concern.  No single answer will fit every case, so you should call an attorney to discuss your choices.

You need to understand how those types differ before making a decision.  In a lump sum or stipulated sum contract, the contractor agrees to provide specified services for a fixed price, which is based upon estimated labor and material costs plus the contractor’s overhead and profit. If the actual costs are higher than the estimate, the contractor’s profit will be reduced.  If the costs are lower, the contractor gets more profit.  Under a GMAX the contractor is compensated for actual costs incurred plus a fixed fee, subject to a maximum total contract price.  Cost overruns are the responsibility of the contractor; any cost savings benefit the owner.  Sometimes savings are shared between the owner and contractor as an incentive to keep costs down.

A legal non-conforming use is the use of land or a structure which was legally established according to applicable building and zoning codes that were in effect when the use was established,  but does not meet current building and zoning regulations.  Generally, the non-conforming use can be maintained until the use is discontinued or abandoned for a prescribed time period.

When developing a residential subdivision, a homeowners’ association, set up in accordance with Ohio law, can be a major benefit (and sometimes required). A homeowners’ association is like a “mini-government” that can enforce rules and regulations so that the entire subdivision is aesthetically pleasing and maintained. There are two (2) main reasons to set up a homeowners’ association: (1) if the developer or homeowners worry about uniformity within the subdivision; or (2) if there are any “common areas” (which are areas of the subdivision that are for the benefit of all homeowners within the subdivision). But setting up a homeowners’ association is a complex endeavor and should be done very carefully with detailed (and often lengthy) documents that are recorded with the Ohio Secretary of State and the local County Recorder.