We are pleased to announce that Midwest Real Estate News magazine named the Firm eighth on its list of 2009 Top 25 Midwest Real Estate Law Firms – Best of the Best. Ulmer & Berne was once again ranked first in the state of Ohio.

Midwest Real Estate News is one of the region’s leaders in commercial real estate coverage. According to the publication, each year hundreds of surveys are submitted by law firms from across the Midwest (a 14-state region) to the magazine for consideration. Only those law firms that completed a high enough number of transactions and provided top-notch client service while doing so earned one of the coveted rankings.

In the 14-state region alone, Ulmer & Berne completed over 670 transactions with 90 of those transactions valued at above $5 million in 2008. Areas of transaction included commercial, industrial, shopping centers, land, office buildings and multifamily housing.
 

 

 

US EPA has amended the Standards and Practices for All Appropriate Inquiries (“AAI”) to acknowledge another ASTM standard can be used to satisfy the AAI requirement for the landowner defenses to liability under Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) – innocent landowners, bona fide prospective purchasers, and continuous property owners. In addition to ASTM International Standard E1527-05, you can now use, when applicable, ASTM International Standard E2247-08 entitled Standard Practice for Environmental Site Assessments:  Phase I Environmental Site Assessment Process for Forestland or Rural Property (“ASTM E2247-08”).

 

Continue Reading Another ASTM Standard Satisfies All Appropriate Inquiries under CERCLA

In the past, we have spoken about grants and loans available through the Ohio Department of Development for advanced energy residential projects, such as solar and wind energy installation.  Federal funding is also available for residential energy-reduction projects through The American Recovery and Reinvestment Act of 2009 (ARRA).  A total of $250 Million from ARRA was allocated to HUD for its Assisted Housing Green Retrofit Program (GRP).  Under GRP, HUD is offering up to $15,000 per residential unit for projects that reduce energy costs, reduce water use, and improve indoor environmental quality.  HUD expects to fund about 25,000 units (approximately 300-350 properties), with an average $10,000 provided to each unit.

Beginning June 15, 2009, HUD is accepting applications for GRP funding on a first come, first served basis, and subject to allocations for project categories, geographic location and owner/affiliate concentration.  HUD may offer either a Green Retrofit Grant or a Green Retrofit Loan repayable from a share of surplus cash and from sale and refinancing proceeds.  The performance period for completing all Green Retrofits will generally be twelve (12) months, but in no event may it exceed twenty-four (24) months.  The program requirements differ depending on the type of project-based assistance contract and depending on the owner entity (nonprofit or for profit).

The properties eligible to receive GRP funding are the following: Section 202 funded properties that have at least 32 units; Section 811 funded properties that have at least 8 units; properties receiving assistance pursuant to Section 8 with USDA Section 515 loans and which have at least 20 units; and all other Section 8 funded properties having at least 72 units.

 

Continue Reading HUD Green Retrofit

The rights of owners and tenants in post-foreclosure property have been dramatically altered by new legislation signed by President Obama. On May 20, 2009, President Obama signed the “Helping Families Save Their Home Act,” which contained provisions to aid renters whose landlords go through foreclosure. Title VII of the Helping Families Act (the “Act”) is entitled “Protecting Tenants at Foreclosure” and generally requires the immediate successor-in-interest on foreclosed property to recognize the lease rights of existing tenants on the property. 

The Act applies to any property where there has been a foreclosure on a “federally-related mortgage loan or on any dwelling or residential real property” after May 20. “Federally-related mortgage loan” is defined in RESPA as being limited to mortgages on property “designed principally for the occupancy of from one to four families.” Therefore, the Act’s requirements apply only to residential, and not commercial, property. 

If there are “bona-fide-tenants” on the property that signed leases prior to the foreclosure, the Act appears to require landlords to recognize the remaining term of the lease, although there is some ambiguity in the text of the Act regarding whether a landlord may choose instead to require existing tenants to vacate on ninety-days notice. “Bona-fide tenant” is a defined term essentially meaning that the tenant’s lease was the product of an arms-length transaction. 

There are two situations under the Act where it is clear a post-foreclosure owner may require a tenant to vacate upon ninety-days notice. First, if the new owner sells a tenant’s unit to a purchaser who will occupy it as a primary residence, the owner may require the tenant to vacate after expiration of the notice.  Second, a tenant who does not have a lease or whose lease is terminable at will must also receive a ninety-day notice before being required to vacate. The Act does not displace any federal or state requirements for terminating subsidized tenancies, or any state laws that offer greater protections to tenants. If not renewed, the Act will expire on December 31, 2012. 

It is especially important for lenders to be aware of this new law, as many are becoming owners of real property through foreclosure proceedings. Anyone acquiring property post-foreclosure must carefully examine existing tenancies to ensure it recognizes leases or gives appropriate notice as required by the Act. Hopefully, better guidance will be offered in the near future concerning when a landlord may terminate an existing tenancy after giving proper notice.

Ohio’s Transfer on Death Statute became effective at the beginning of 2002. Prior to the law being passed, there was much buzz in the real estate and trusts and estates legal community about why Ohio did not have a vehicle permitting owners of real estate to transfer real property on death to a named beneficiary, thereby avoiding probate of the property. After all, bank accounts could be transferred by naming a transfer on death beneficiary. Why could the same not be done for real estate? Ohio’s transfer on death statute had several problems, most notably the ambiguity with respect to whether or not joint tenants could be transfer on death grantors and, if so, what was the effect of the death of one, but not all, joint tenants? The debate and discussion became so heated that a multiple choice question was circulated on the Ohio State Bar Association’s Real Property Listserv suggesting five different vesting possibilities with the sixth multiple choice answer being “I don’t give a rat’s @$$. I have heard entirely too much on this topic and I want to be left alone.” Choice 6 knocked all others out of the ballpark.      

 A new Senate bill was introduced on April 30 which throws out the old transfer on death statute, getting rid of transfer on death deeds entirely, and replacing them with a transfer on death affidavit. In fact, the bill actually answers many of the questions that those of us in the real estate business have been debating since the law’s inception. For example, it makes very clear that joint tenants may name a transfer on death beneficiary. It also clarifies that upon the death of one joint tenant, the property is owned by the remaining joint tenants. In the event that there is a transfer on death affidavit in effect upon the death of the last joint tenant, the property transfers to the beneficiary. The bill cleans up the confusion of transferring on death to the trustee of a trust when the trustee of the trust may change. It also addresses ambiguities left open in the original statute with respect to a spouse’s dower interest.

 

In fact, the new bill is so well drafted that I thought it was the perfect fix. That is, until I described the changes to my trusts and estates colleagues. They expressed the concern that they will now have to do a full title search on every individually owned piece of real property in every estate to confirm that there is no transfer on death affidavit of record. Previously, they only obtained the last deed of record which would contain the transfer on death beneficiary, if any. As a real estate attorney who regularly orders title commitments, I believe that this is a small price to pay for the clarity that the statute brings to the dreaded transfer on death deeds. Hopefully it will put a stop to multiple choice questions on the Real Property Listserv.       

A mechanics’ lien claim can give the contractor, subcontractor or material supplier making the claim a significant amount of leverage over a property owner in a payment dispute. This makes sense, of course, because the concept behind mechanics’ lien law is to provide some assurance that people will receive payment for work and materials they provide to improve real property. But what can the owner do where the claim for payment is disputed and the mechanics’ lien threatens to put the owner in default of its mortgage covenants or disrupt a sale or refinancing of the property?

When there is no external pressure from a lender or pending sale of the property, the owner does not necessarily need to do anything to address a lien. Ohio mechanics’ liens are valid only for a period of six years from the date of recording. If the owner believes the lien is invalid and therefore unlikely to be foreclosed upon, the owner can simply wait six years until the lien expires. 

 

If, however, the lien needs to be removed prior to the expiration of the six-year period, the owner has several options. Ohio’s mechanics’ lien law is complex and contains many traps for the unwary that may render a mechanics’ lien invalid.  For instance, on commercial projects, a mechanics’ lien claimant only has 75 after the last date of work in which to file the lien affidavit with the recorder’s office. The lien must then be served upon the owner or owner’s designee within 30 days. Failure to meet either of these deadlines will render the lien invalid. 

 

Another stumbling block for potential lien claimants occurs when the owner has recorded a notice of commencement (which the owner typically should). The recording of the notice of commencement triggers an obligation on behalf of subcontractors or material suppliers to serve a notice of furnishing upon the owner in order to preserve their right to claim a lien. Check to see that a notice of furnishing was properly served by the lien claimant. If not, the claimant may have lost the right to file a lien. Note that the requirement to serve a notice of furnishing does not apply to someone who has a contract directly with the owner. 

 

 

Continue Reading Lien on Me: Strategies for Resolving Mechanics’ Lien Claims

Imagine purchasing a brand new home, only to discover it has a persistent rotten egg smell. On top of that, your new appliances mysteriously stop working and the home’s copper wiring turns black. It sounds like a nightmare, but for those in Florida and other southern states whose homes contain defective Chinese drywall, it is reality.

Although it now seems a distant memory, there was a time not long ago when new homes were being constructed across the country at a record pace. This housing boom, combined with the need to repair damage from severe hurricanes in Florida, created unprecedented demand for building materials such as drywall. When domestic sources of drywall ran low around 2005, some contractors and builders, particularly in Florida, began using drywall imported from China. It has been estimated that enough Chinese drywall for 60,000 homes was imported to the U.S.   

Unfortunately for the owners of the homes containing the Chinese drywall, it emits sulfur gas that corrodes copper and gives off a rotten egg smell. Attorneys for the affected homeowners also allege that the gas causes respiratory and other health problems, though the manufacturers of the drywall contend that it does not.

Class action lawsuits have been filed against builders and drywall manufacturers in a number of southern states. So far, it does not appear that any Chinese drywall made it as far as Ohio, although one Columbus-based builder, M/I Homes, has been named as a defendant in a lawsuit concerning homes it built in Florida.

Though certain builders have stepped up and voluntarily replaced the defective Chinese drywall in some homes, others are unwilling or financially unable to do so, frustrating owners who have already seen their property values plummet due to the mortgage crises. It remains to be seen whether these owners will receive any relief as a result of the lawsuits.

Ohio’s Ninth District Court of Appeals dismissed an appeal from a foreclosure judgment in March after ruling that the disbursement of sheriff sale proceeds rendered the appeal moot. In Bankers Trust Company of California v. Tutin, 2009 Ohio 1333 (9th Dist. Ct. App. 2009), Bankers Trust filed a complaint for foreclosure against Barry Tutin, alleging Tutin defaulted on a mortgage note on property in Peninsula, Ohio. The complaint was amended to add Tutin’s former wife, Laura Lynch, because she held a life estate in the property. The trial court ruled that Bankers Trust’s mortgage had priority over Lynch’s life estate. Lynch appealed the ruling twice, but each was dismissed because the court had not entered a final, appealable order. During these two appeals, Lynch obtained a stay of the trial court’s judgment preventing disbursement of the sale proceeds. After dismissal of the second appeal, however, the stay expired and the sheriff disbursed the proceeds to Bankers Trust. Lynch then appealed the trial court’s final order and its failure to order Bankers Trust to return the sale funds.  

The Court of Appeals followed what it described as a “well-established principle of law” and dismissed Lynch’s appeal as moot. It pointed to Ohio cases holding that satisfaction of a judgment renders an appeal from that judgment moot. Here, satisfaction of the judgment took the form of the sheriff releasing the foreclosure sale receipts. The court did not address the difference between this type of “bureaucratic” judgment satisfaction and judgment satisfaction voluntarily given by a private party. 

 

As the court noted, but found unpersuasive, several recent Ohio appellate decisions preserved a remedy for appellants after foreclosure sale proceeds were distributed. See e.g. LaSalle Bank v. Murray. The contrary cases focused on Ohio Revised Code 2329.45, which states: “If a [foreclosure judgment] is reversed, such reversal shall not…affect the title of the purchaser. In such case restitution must be made by the judgment creditor of the money for which such lands…were sold.” [emphasis added] The Bankers Trust court found that these decisions improperly extended 2329.45 to post-disbursement situations, and held that the statute only addresses situations where a stay has prevented disbursement of sale funds. This argument seems to belie the explicit language of 2329.45, however, which refers to restitution by a judgment creditor, who could only hold proceeds following distribution from the sheriff. 

 

Whether or not the Bankers Trust decision is upheld on appeal (questionable given the case law and 2329.45) should be of great interest to mortgage lenders. If the decision endures, lenders may point to a clear end-goal of disbursement, rather than concerning themselves with the outcome of subsequent appeals. 

A tenant always prefers an SNDA so that if the landlord’s lender forecloses, the lender will have to respect the tenant’s lease. But if the landlord files bankruptcy, or if the lender causes the landlord to file bankruptcy, the landlord can reject the tenant’s lease anyway thereby subjecting the tenant to the very risk it was seeking to avoid.

In a currently ongoing bankruptcy case, the bankruptcy trustee went so far as to demand  the tenant to move out immediately because the trustee was shutting off utilities to save money for the estate.  In most cases, the lender does not want to avoid the lease because it wants the rental income. For the same reason, the trustee usually does not want to reject the lease. 

The real risk is where the property is to be redeveloped for a completely different use or is being held by a non-operator who wants no responsibility for operations whatsoever. In both cases, an SNDA may not suffice given the remedies available in bankruptcy.  

 

In U.S. Bank National Association  v. Gullotta, 120 Ohio St 3d 399, the Ohio Supreme Court decided that multiple actions under the same note and mortgage are subject to the two-dismissal rule and res judicata preclusion. The decision could have far-reaching implications for lenders seeking to workout loans with troubled borrowers.   

The history of the case is important to understanding its impact. In June 2003, Giuseppe Gullotta entered into a note and mortgage with MILA, Inc., which assigned the note to U.S. Bank. In April 2004, U.S. Bank filed a foreclosure complaint for the total principal due on the note, plus interest from November 1, 2003. It voluntarily dismissed this complaint in June 2004. In September 2004, U.S. Bank filed a second identical complaint, except with interest running from December 1, 2003, which it also voluntarily dismissed in March 2005. In October 2005, U.S. Bank filed a third foreclosure complaint on Gullotta’s note and mortgage. After Gullotta filed a motion to dismiss, U.S. Bank amended its complaint to seek interest only from April 1, 2005 (the first missed payment date after its second dismissal).

Ohio Civil Procedure Rules state that “a notice of dismissal operates as an adjudication on the merits of any claim that the plaintiff has once dismissed in any court.” A second dismissal is with prejudice and res judicata preclusion takes effect. Under a res judicata analysis, any claim “arising out of the transaction or occurrence that was the subject matter of the previous action” is barred. 

The Court held that each missed payment under the same note and mortgage does not give rise to a new claim, and therefore U.S. Bank’s two earlier dismissals precluded a third action. It premised this holding on four critical facts: 1) the underlying note and mortgage never changed, 2) the bank accelerated the payment upon initial default and demanded the same principal payment in every complaint, 3) Gullotta never made another payment after his initial default, and 4) U.S. Bank never reinstated the loan. 

 

Continue Reading Ohio Lenders Precluded from Bringing Third Complaint on Same Note