Ohio and Kentucky statutes require residential builders to provide certain notice to home buyers.  While there is no new law on this, the construction attorneys of Ulmer & Berne LLP have seen this issue come to light many times this past year; thus, prompting this refresher alert on Ohio and Kentucky notice statutes.

Both Ohio and Kentucky have notice statutes, which require that builders, upon entering into a contract for the construction of a residence (whether single-family or multi-family), provide notice of the builder’s right to offer to cure construction defects before a homeowner may commence litigation against the builder for any alleged construction defects within the residence.  Per Kentucky Revised Statute 411.260, such notice shall be substantially similar to the following form:

Sections 411.250 to 411.260 of the Kentucky Revised Statutes contain important requirements you must follow before you may file a lawsuit for defective construction against the builder of your home.  You must deliver to the builder a written notice of any construction conditions you allege are defective and provide your builder the opportunity to make an offer to repair or pay for the defects.  You are not obligated to accept any offer made by the builder.  These are strict deadlines and procedures under state law, and failure to follow them may affect your abililty to file a lawsuit.

Per Ohio Revised Statute 1312.03, such notice must be conspicuous and in substantially the following form:

Ohio law contains important requirements you must follow before you may file a lawsuit or commence arbitration proceedings for defective construction against the residential contractor who constructed your home.  At least sixty days before you file a lawsuit or commence arbitration proceedings, you must provide the contractor with a written notice of the conditions you allege are defective under Chapter 1312. [sic] of the Ohio Revised Code, [sic] the contractor has the opportunity to offer to repair or pay for the defects.  You are not obligated to accept any offer the contractor makes.  There are strict deadlines and procedures under state law, and failure to follow them may affect your ability to file a lawsuit or commence arbitration proceedings.

Although the aforementioned statutes do not contain any apparent language regarding repercussions to builders for not following these requirements, providing such notice is a good way to educate the buyer and provide the builder the opportunity to address the buyer’s complaints before a suit is filed and attorney’s fees start to mount.

 

 

 

New rules promulgated under Ohio’s Public Construction Reform (the “Reform”) have been released by the Joint Committee on Agency Rule Review.  The new rules include:   (1) Rules for Prequalification of Prospective Bidders on Subcontracts; (2) Rules for Best Value Selection of Construction Manager and Design-Build firms; and (3) Rules for the Form of Subcontracts.  The Rules for Prequalification and Best Value become effective 2/02/12, and the Rules for the Form of Subcontracts became effective 12/26/11.  The Joint Committee also released a new form of subcontract for public jobs in Ohio.  

 

Among other requirements, the new Prequalification Rules: (1) place significant emphasis on a bidding subcontractors’ goals and history related to diversity and economic inclusion; and (2) permit a public authority to require a construction manager or design-build firm to employ additional criteria, in order to suit the unique needs of a project, including "knowledge of the local area and working relationships with local suppliers."  As such, local subcontractors with strong supplier relationships, firm diversity goals and proven track records for economic inclusion should have an advantage when bidding public works in Ohio. 

     

The new Prequalification Rules and other important information concerning the Reform may be found at http://ocr.ohio.gov/

Architect Ross Chapin, who has spent his career championing the "pocket neighborhood" concept has proven that "walkability" and "new urbanism" concepts which are successful in the Northwestcan be successful in the Midwest. TheInglenook community development in Carmel, Indiana is proof that "pocket neighborhoods" can be successful anywhere. We particularly like the concept for in-fill parcels and in first and second ring suburbs.  To learn more about the concept see the links above and the video below.

 

http://www.youtube.com/watch?v=UwJgEzMzJ4I

As 2011 winds down and 2012 ramps up, I wanted to share with our readers the following thoughts from Seth Godin which he wrote on his blog recently:

Unexpected turbulence

Is there really any other kind?

If we see turbulence coming, we tend to avoid it. The art is in knowing that turbulence might come and looking forward to it, bracing for it and embracing it at the same time.

If your plan will only succeed if there is no turbulence at any time, it’s probably not a very good plan (either that or you’re not going anywhere interesting.)

See you soon !

It is the time of the year to reflect on what happened this past year. What is trending? What did we do right? What did we do wrong? What can we expect next year?

Tweeting is in. Now the challenge is to figure out a way to monetize it as opposed to just joking with my kids. In fact, the whole social media thing is trendy. But to what end? Notwithstanding this Blog,  until someone way smarter than I can figure out some new way to utilize it, I am writing it out of my business plan. (It may stay in my social plan for a while because there is funny interesting stuff out there. You can follow me on Twitter and decide for yourself though whether anything I say is interesting or funny.  My kids would probably say NOT.)

 

Apple – computers, tablets, phones – is in. All the way in.  Even law firms who as an industry are ultra-concerned about security have made the switch. I resisted as long as I could in fear of my fingers being too fat to work the touch screen. People told me I’d get used to it – they were right. Not sure how I ever lived without my Apple phone, I-Pod, I-Pad and PC.

 

Urban life is in. In Cincinnati, it’s Over The Rhine. Washington Park being completely upgraded, several new restaurants, bars, shops and apartments, really cool old world architectural features, and Findlay Market. Gives local business owners a real chance. New Urbanism and Walkability are in.

 

3-D is in. New movies, remakes of old movies – all 3-D. I like the 3-D effect, but do I really need to see Beauty and the Beast all over again just to see a candle stick hover over my head?

Electric cars? Why isn’t that a done deal yet. I mean a real car you would actually like to own and drive. Why aren’t they everywhere?

 

Is it me or is the list of impressive politicians shrinking? We need to fix the system so that we are attracting the best and brightest to help govern.

 

Another thing broken is college sports. Division 1 football needs a playoff. The whole conference alignment makes no sense (San Diego State is in the Big East?). Title 9 does not work anymore. It has led to the elimination of whole sports programs at some schools, the reduction of baseball scholarships at all schools and other inequitable consequences. We need to support gender equity – I just don’t think Title 9 is the way to do that anymore. And the NCAA has lost its way. The purpose of the NCAA should be to protect the student athlete. It seems instead that it exists solely to protect the income streams of the largest universities.

   

Real estate lending has changed. Lenders are much more involved in the entire deal structure – not just the terms of the loan but the terms of the underlying deal. Much less willing to take risks. Leases, acquisitions, redevelopment – all tougher to do. Lenders may be right to take this approach. But it places increased level of importance on the experience, intellect and service attitude of the lender and its attorneys.  

 

I am concerned about business prospects for 2012. But I was concerned going into 2011, and 2011 ended up pretty good. Wishing everyone a happy, healthy, prosperous 2012. 

Take an old technology which has not seen any real updates in decades, make it internet connected and add a few semiconductors (to make it smart) and radically change the way offices and homes consume energy !  That is what the Nest Learning Thermostat promises to do. See the video below.

 

http://www.youtube.com/watch?v=QCJ1PnVlzIE

Commencing January 1, 2012, legal, real estate and insurance professionals will be required to advise clients of KRS 381.280 which creates a forfeiture of property rights for the taking of the life of a party in interest to the same prior to such parties executing deeds and other documents in question. It works like this: take the life (and actually be convicted of a felony) of your spouse, heirs, beneficiaries under wills, trusts or insurance policies or a joint tenant with right of survivorship and you will loose your interest in the property which you shared with the dearly departed. There are several exceptions to the general rule; see the text of the statute at the link provided above.  To all of our friends who are lawyers, real estate and insurance professionals, please take note and prepare for the education of your clients.                       

 

The ICSC Law Conference is being held this week in Phoenix. It alternates from the West  to the East each year – this year it’s out West. It is a great conference for any attorney practicing in the retail real estate industry.  Here are the top 10 reasons for attending:

10.    There is a seminar on negotiating skills, which is really a seminar on how to listen – a skill we all need to improve.

 

9.    It is always at a beautiful resort.

 

8.    Arnold Golden Gregory has a party.  So Abe Schear is buying you drinks.

 

7.    There are seminars on insurance coverage in retail leases. I firmly believe that if you really understand how insurance and indemnity work together in a lease, you can win every issue.

 

6.    Easy way to socialize with clients.

 

5.   There is always a great featured speaker. Might be a nationally known celebrity, or an insightful national commentator.

 

4.    Most opposing attorneys will be there and so you can negotiate face to face on pending leases (while not being pressured to turn around a draft immediately since everyone understands you are at ICSC and thus unable to do so).

 

3.    You get CLE – lots of it.

 

2.    There are small interactive seminars where you will learn useful information.

 

1.    And the number one reason to attend is that you can meet in person opposing attorneys with whom you are doing leases.  It is then much harder for that attorney to be obnoxious and difficult after you have met them face to face. 

 

It really is the chance to meet people you are working with in person in a relaxed setting that is the biggest benefit.

 

Hope to see you there ! 

Southern Title Insurance Corp. is suspending issuing new policies as of September 15, 2011.  In a press release, it cited a higher than usual number of claims arising from policies issued from 2005 to 2008.  The agents which issued those policies are no longer associated with Southern Title.  The company also cited "a substantial recent agent defalcation". 
 
Southern Title is an underwriter of title insurance policies.  The press release stresses that Southern Title remains solvent and that there are sufficient funds to pay claims of current policyholders.  However, if you have a transaction where Southern Title is acting as the title company or has been included in the purchase agreement as the escrow agent and/or title company, the parties should agree to use an alternative agent and underwriter. 

The Ohio Legislature passed House Bill 153 on May 5, 2011. H.B. 153—a budget bill—which includes significant changes for Ohio’s public construction projects. Some changes will become effective on September 28, 2011, but others are forecast to become effective in early 2012. As such, we will have to wait a while longer to experience the full effect of the public construction reform.

 

The following is a sampling of impending changes to public construction works in Ohio:

 

(1)        Prevailing Wage Law (effective September 28, 2011):

These adjustments to Ohio’s prevailing wage law will take effect on September 28, 2011:

 

Threshold for prevailing wage application to new construction rises from $78,258 to $125,000.00;

Threshold for prevailing wage application to renovation, reconstruction, remodeling, enlargement, repair, or painting work rises from $23,447.00 to $38,000; and

Implementation of a “safe harbor” from liability for a contractor found to have underpaid prevailing wage, if the contractor makes full restitution and each violation is no more than $1,000.00 per employee.           

(2)        New Options for Construction Delivery (forecast to become effective in early 2012):

One aspect of the reform will allow Public Authorities in Ohio to utilize one of several construction delivery systems for Public Improvements. In addition to Ohio’s classic “multiple prime” public contracting, under which the public authority awards several contracts directly to heavy trade contractors, Public Authorities will now have the option to construct a Public Improvement under any of the following construction delivery systems: (1) Construction Manager at Risk; (2) Design-Build Firm; (3) Design-Assist Firm; or (4) General Contractor. 

 

(3)        Pre-qualification Criteria (forecast to become effective in early 2012):

The Ohio Department of Administrative Services, State Architect’s Office, is currently drafting “prequalification criteria” that will be required of subcontractors before they may work on a Public Improvement. Once the criteria are established and approved by the State Attorney General’s office, we should begin to experience Public Authorities’ implementation of the new construction delivery options. 

 

(4)        Bonding Requirements (forecast to become effective in early 2012):

H.B. 153 will also impact bonding requirements for Ohio’s public construction projects. The first draft of the new bonding regulations was circulated the week of September 12, 2011. The proposed regulations called for the Construction Manager at Risk, Design-Build Firm, Design-Assist Firm, General Contractor, or Multiple Prime Contractors to procure performance and payment bonds for projects under $20 Million. For projects over $20 Million, however, bonding could be passed down to subcontractors.