In order to advance our mission of “Making a Difference,” we are pleased to announce a further expansion of our Mt. Adams office, nearly our footprint at that location. We now have offices for seven attorneys and additional staff that that location in the Rookwood Pottery Building (1077 Celestial Street, Cincinnati, Ohio 45202).
For our clients, if you are downtown or in the area and need an outpost with a desk, WiFi, a printer and a beautiful view of the City, we have a large lounge area from which you are welcome to work. We also now have two conference rooms at that location for depositions, closings, and meetings.
How do I obtain an Ohio commercial real estate broker lien?
Attorney Casey Taylor
First, let’s be clear: There is no lien right for real estate brokers for property consisting solely of between one and four residential units. (O.R.C §§1311.85 and .86).
However, licensed real estate brokers dohave lien rights in transactions involving commercial properties, i.e., anything other than between one and four residential units. (O.R.C §§1311.86).
The lien rights extend to brokerage contracts for the provision of services for selling, purchasing, and leasing. (O.R.C §§1311..86(A) and (B)). They do not appear to cover the provision of property management services.
What is a lien?
In one sense, a lien does not get you anything more than the contract rights you already have: You have a signed listing agreement, you have earned your commission, you can sue in a court of competent jurisdiction, and you can thus get paid the amount of money you are owed.
But as a practical matter, lien rights are tremendously powerful in “turning the tables” on a property owner, giving quick, inexpensive and powerful leverage to the Realtor to resolve a commission dispute.
Why is a lien important?
Leverage often is the “whole ballgame.” So often, (a) debtors will avoid debts they clearly owe just because they can, for purposes of the time-value of money (by delaying the payment, they can use your money in the interim) and (b) the reality is that most creditors will not go to the trouble and expense of hiring and paying an attorney to collect the sums owed to them.
Litigation can cost as little as $20,000 per case, up to hundreds of thousands of dollars for a vigorously-contested action. So, the question for a Realtor claiming a commission is: Can I “check” or “checkmate” a property owner (seller or landlord) into recognizing, dealing with and paying my claim without the two years and tens of thousands of dollars in legal fees needed to vindicate that right?
A lien is a powerful tool — it encumbers real property
A lien is an encumbrance on real property. In most cases, real property encumbrances have the same priority of the order of filing, i.e., the first-filed is paid first from the sale proceeds, the second, second and so forth. (Ohio mechanics liens are the major exception to this rule, dating back to the date of first work on a project.)
This gives the lien holder two distinct advantages, many times powerful advantages: (a) their claim is secured against the real estate (i.e., the owner cannot further squander the equity in the property by a sale or mortgage) (b) the claimant has placed a cloud on the title with what may still be a disputed claim, effectively preventing the owner from selling or mortgaging the asset until the earlier of (i) the statutory expiration of the lien or (ii) the judicial disposition of the claim and the lien rights.
Thus, as a practical matter if the property owner wants to sell his property or take out a new mortgage or refinance an existing mortgage, he will have to “deal with” the Realtor’s claims before doing so.
A broker’s lien is unilateral — it does not require the owner’s signature or consent
Contrary to what many clients ask of us in a simple contract or tort claim (“please lien their property”), in most circumstances a lien cannot be placed against real property until either (a) the owner signs a voluntary instrument such as a mortgage or (b) the conclusion of litigation, which usually takes years. In the meantime, a defendant can sell and mortgage the property, or otherwise encumber it, and then squander the asset without concern for the plaintiff’s claims. (This is constrained by concerns about fraudulent conveyance issues that will be discussed in another blog entry later.)
The right to place a unilateral lien against real estate is very narrow, being limited to government liens (such as tax liens, assessments, environmental liens, etc.) and mechanics liens (for work done on real property and materials delivered to real property for incorporation therein).
Commercial brokerage lien rights
O.R.C. §1311.86 provides such unilateral lien rights for the collection of a commission in commercial transactions in specific circumstances set forth in the statute. Being a unilateral filing, means that the Realtor claiming the lien simply signs and files a piece of paper in the Hamilton County Recorder’s office. It does not require a signature (on the lien filing) of the property owner.
Statutory requirements
Because the lien arises from the statute, strict compliance with the statutory mandates will be required. F. W. Winstel Co. v. Johnston, 103 Ohio App. 525, Paragraph 1 of the Syllabus (1st Dist. 1957). These are set forth in O.R.C. §1311.86:
It is for written brokerage contracts only (O.R.C. §1311.86(A) and (B)).
It is for “for services related to selling, leasing, or conveying any interest in commercial real estate” (O.R.C. §1311.86(A)) and “for services related to purchasing any interest in commercial real estate.” (O.R.C. §1311.86(B)).
“The lien is effective only if the contract for services is in writing and is signed by the broker or the broker’s agent and the owner of the lien property or the owner’s agent.” (O.R.C. §1311.86(A) and (B)).
The lien is for the broker only, not his salespersons. (O.R.C. §1311.86(C)(1).
The lien amount is either the brokerage commission due, or if due in installments only that portion due on conveyance. (O.R.C. §1311.86(C)(2) but in the case of commercial leasing, (O.R.C. §1311.86(C)(3).
Only the property subject to the brokerage agreement can be liened. ((O.R.C §§86(C)(5)).
Lien contents
To perfect a lien, the following steps must be followed:
The claimant must prepare, sign and have acknowledged (notarized) an affidavit containing each of the following: (a) name of the broker who has the lien, (b) the name of the owner of the lien property, (c) a legal description of the lien property, (d) the amount for which the lien is claimed, (e) the date and a summary of the written contract on which the lien is based, and the real estate license number of the broker. R.C. 1311.87(B)(2).
Additionally, the lien affidavit must state that the information contained in the affidavit is true and accurate to the knowledge of the broker. Id.
Lien deadlines
The timeframes within which a commercial broker’s lien must be filed are:
For a sale of liened, the Affidavit must be recorded prior to the conveyance of the property. R.C. 1311.86 (B)(3).
For a purchase of liened property the Affidavit must be recorded within ninety days after the conveyance of the property. R.C. 1311.86 (B)(4).
For liens based upon a leasing commission, the Affidavit must be recorded within ninety days after a default by the owner in payment. R.C. 1311.86 (B)(5).
Notice to property owner
One other requirement not to overlook: “On the day the lien affidavit is recorded, the broker shall provide a copy of the lien affidavit to the owner of the lien property and, where a contract for the sale or other conveyance of the lien property has been entered into, to the prospective transferee, where known, either by personal delivery or by certified mail, return receipt requested. O.R.C. 1311.86 (B)(6).
Be careful — “Slander of title” claims can be nasty
If one files a lien against real property that is later determine to have been in bad faith, the lien claimant can find himself the target of a suit for a cause of action known as “slander of title.” Slander of title is the tort of impairing title to someone’s real estate without a reasonable basis therefor. McClure v. Fischer Attached Homes, 2007-Ohio-7259, ¶ 21, 882 N.E.2d 61 (Clermont Co. C.P. 2007), citing Green v. Lemarr, 139 Ohio App. 3d 414, 433 (2d Dist. 2000).
The really bad part of a slander of title claim is that it can include an award to the property owner of an award of his attorneys fees and a punitive damages amount. Additionally, the commercial brokerage lien statute specifically allows for the prevailing party to recover its attorney’s fees. O.R.C. 1311.88(C) (“[A] court may assess the nonprevailing parties with costs and reasonable attorney’s fees incurred by the prevailing parties.”). However, in cases involving general slander of title claims (i.e., outside of the commercial brokerage lien context), the attorney’s fees have been limited to the those “necessary to counteract a disparaging publication,” and did not include those incurred in prosecuting the slander of title. Cuspide Props. v. Earl Mech. Servs., 2015-Ohio-5019, ¶ 40 (6th Dist. 2015).
Thus, we recommend moving forward with the filing of an affidavit for a commercial broker’s lien cautiously, only where the broker is certain of the merits of his position and even then still willing to withstand the possible claim for slander of title from an owner.
Conclusion
The Finney Law Firm is privileged to have many real estate brokerage clients, including commercial Realtors. The commercial lien right is a very powerful one, and one that we think is under-utilized in commission disputes.
Consider one of our attorneys to assist you in such a dispute, including the use of the right to a commercial lien.
Something that didn’t even exist 15 years ago is now all the rage. I’m talking about “Social Media Policies” in the workplace.
What does this mean? Why do many employers have these policies? Are they important? Are there legal rules relating to these policies?
I don’t need to tell you about the explosion and popularity of social media sites like Facebook, Twitter, Instagram, etc. You know, those things that those of us over a certain age have been introduced to by our kids.
Well, it’s not surprising that many people post on these sites about their experiences at work. Usually the posts are benign and inoffensive. But sometimes they can be serious or controversial. And sometimes they can be downright nasty. They may criticize co-workers or supervisors. They may badmouth the employer. They may complain about working conditions or pay. They may argue in favor of organizing a union at work. They may be threatening or abusive.
Can employers limit or restrict what their employees say in social media content related to work? Can it discipline or discharge an employee based on what he or she says on Facebook and the like? Do employees have any rights in this area?
For “at will” employees – that is employees who are not in a union, do not have a contract, and do not work for the government in a civil service position – employers have a fairly free hand to discipline employees for social media posts that the employer doesn’t like. If the employee makes statements that injure the employer’s reputation, that violate its anti-discrimination or harassment policies, that threaten co-workers, or that exhibit a poor attitude toward work – to give just a few examples – the employer is generally permitted to act on that, and to discipline or discharge the employee. This does not infringe on the employee’s right to “free speech” since the employer is a private entity and is not acting as the government.
Even employees of private, non-union employers, however, do have certain rights with regard to social media postings. All employees, for instance, have the right to engage in “concerted activity” to improve the terms and conditions of their employment, or to discuss possible organization for their mutual benefit. So if employees are talking together on-line about their pay, or safety in the workplace, or the way they are being treated by management, employers may not take adverse action against the employees for doing those kinds of things.
It sometimes can be hard to distinguish what is and is not permitted in these cases. For instance, if an employee goes on a profanity-filled rant about his working conditions, and is disrespectful or even hateful toward his managers, can the employer discipline him for being disrespectful and hateful, or would the employee’s rant be considered “concerted activity” if it is directed to his co-workers and discusses their mutual working conditions?
If you have questions about your rights as an employer or employee, or if you want some guidance in implementing an appropriate and legal social media policy, be sure to contact competent legal counsel familiar with the latest developments in this quickly-developing area.
In an age where almost everyone carries a smartphone almost all the time, it is possible for each of us to make a video or audio recording of events and conversations at the touch of a button. YouTube, as we all know, is filled with impromptu video recordings people have made with their cell phones.
What implications does this have for the modern workplace? Are employees permitted to record conversations they have at work with their co-workers or supervisors? What if an employee wants to gather “evidence” of sexual harassment that they believe is taking place? What if a worker wants to record a conversation with his or her boss when the worker is being reviewed or disciplined? Do they have the right to do that? Do they have to tell the other people who are being recorded?
Federal and Ohio law permit an individual to make such recordings, as long as at least one party party to the conversation being recorded – such as the party recording it – has given permission. Importantly, the individual making the recording does NOT have to have the permission of the OTHER parties being recorded – as long as the person recording is himself a party to the conversation.
(This contrasts with hiding a microphone or cell phone in a location in which the people being recorded are not a part of a conversation with the ower of the device. That likely would be illegal.)
Employers, however, may want to prohibit such recordings in their workplaces. And many employers have instituted policies against it. They feel that their workers should be able to express themselves at work without worrying about whether they are being recorded. They believe a policy against recording encourages candor in meetings and other interactions. If people are concerned that they may be recorded, they are likely to be more guarded in what they say. This may discourage open and honest communication.
Can an employer bar its employees from making any recordings in the workplace, at least if they are made without the permission of the company or the person being recorded?
It may surprise you to know that such policies have been ruled to be illegal. The National Labor Relations Board has held the a blanket prohibition against recordings in the workplace can inhibit the rights workers have to engage in “concerted activity.” This right – which exists in both union and non-union workplaces – guarantees that employees can talk and work together regarding their working conditions, and regarding other terms and conditions of their employment.
In a case involving the retailer Whole Foods, the NLRB ruled that the company’s policy prohibiting all workplace recordings was impermissible, because it could have a chilling effect on the employees’ right to engage in “concerted activity.” That ruling was recently upheld by a federal appeals court. Other courts, and maybe the Supreme Court, may weigh in on the issue in the future.
For now, employers should have any policies regarding workplace recordings reviewed by legal counsel, to make sure they are in line with the NLRB’s decision. And employees should know that, in most instances, they have the right to make such recordings.
Give us a call if you have any questions about this important and evolving area of the law.
_____________________
Stephen E. Imm is an experienced labor and employment attorney who can help with your workplace issues. He can be reached at 513-943-5678.
Frequently, clients desire to lend money, seller-finance the sale of their business or other asset, buy and then lease out a building, or engage in some other business transaction because they are motivated by favorable business terms the transaction provides on its surface: A high rate of interest, a good return under a lease, or a more promising sale price than otherwise the seller would obtain, for example.
This entry asks a prospective private lender to think twice about the risks associated with this activity and to take as many steps to protect himself as possible under the circumstances.
Who is the “lender” and who is the “borrower”
For purposes of this entry, there are many circumstances in which a party is a “lender” and another is the “borrower.”
Obviously, a simple monetary loan in which there is a lender and borrower is one such transaction.
Another occurs where an investor either owns a building and desires to rent it, or purchases one for leasing purposes. In addition, as a part of a leasehold transaction, the landlord may be putting into the premises significant sums in “tenant buildout costs.” Here, the renter is “using” the landlord’s money, his credit, and his asset, in exchange for monthly (read: deferred) payments. This is a form of “loan.”
When a seller is selling his busines, his building or another asset, and does anything other than take back 100% of the purchase price at the time of conveyance, he is a “lender.” (And the worse situation is where the seller is taking a subordinate position to a lender who gets a first mortgage or other lien on the assets acquired. In such situation, the liklihood of the seller getting his “loaned” funds is significantly impaired, and the chance of default significantly higher.)
Even co-signing a loan or a lease, or guaranteeing the debt of another, is “lending” your credit to the co-borrower.
Four important factors to consider
But consider these factors before “lending” your money, your asset, and your credit to a third party:
First, ask yourself: “Why can’t this buyer get conventional financing?” Banks are in the business of assessing and taking the risks associated with lending. If this “borrower” does not qualify for a bank loan, why should you be in the business of being a lender? Have you really fully assessed the risks of lending to this “borrower.”
Banks know experientially and actuarially the “warning signs” that predict loan defaults. Among these are an inability to come up with an adequate down payment, a poor credit score, a history of litigation, and other warning signs. I spoke with one lender recently, and they said they will never lend to people who fail to pay their taxes — ever.
Second, in my experience, a buyer of an asset is much more likely to raise defenses and counterclaims against a seller than the buyer would be able to as against a third party lender: Fraud in the inducement of the sale, property defects, misrepresentations in the business accounts, and simple contract breach. Buyers will raise any and every excuse and defense against paying money they owe.
Third, the more desperate the “borrower” is, the more likely he is to agree to generous transaction terms: a high rate of interest, a high sale price, or some other above-market remuneration. And — I say this based on experience — borrowers who have no intention and no ability to pay back the “loan” are the most willing to agree to generous lending terms.
Fourth, if you are going to leap (into the position of being a lender), at the very least look first: do the kind of due diligence that a lender would — a credit check, a background check, reference checks, and a simple check of court clerks sites and bankrupcy court history for obvious signs of fiscal distress.
The ABCs of improving your position as a lender
So, you have made the decision to “lend.” What steps can you take to improve your position and increase the liklihood of getting your money paid back, with interest?
A. Certainly ask for a personal guarantee of any “loan” to a corporate entity. Accepting simply a corporate signature, whether of a note maker, a tenant or the buyer of an asset, is asking for trouble, unless that company’s creditworthiness has been thoroughly ascertained
B. Don’t be shy about asking for the personal guarantee of the principal’s (or principals’) wife (or wives). If the borrower is earnest about putting their name, their assets and their creditworthiness behind a promise, and they have asked you to extend credit to them — then shouldn’t their wife also stand behind the obligation? Stating it differently, the most common and most obvious dodge of debtors avoiding their creditors is to place their assets in the name of their wife. Don’t let them avoid their obligations to you so easily.
C. Are there third parties who can guarantee the debt? A business partner? A parent? Who is interested in the success of this borrower’s business such that they would be willing to stand behind its obligations?
D. Look for assets to lien. Does the “borrower” (or his wife) own a house, stocks, jewelry, accounts receiveable, or equipment or inventory in their business? Are those assets presently free from any first lien against them? If so, and if the borrower is earnest about paying back your debt, then he should not have qualms with providing a security interest against those assets to stand behind the loan. (Note: Please consult an attorney about how to properly take a lien in various assets; it can be tricky.)
E. Would some patience or a reduced price yield either a cash buyer or enable the buyer you have to go and get a bank or other third party loan? If so, it may be wise to take one of those options.
Conclusion
Lending is an ultra-hazardous activity that should not be undertaken lightly.
There are exceptions where the seller’s main motivation is not necessarily getting payback of the loan: a parent helping a child; a business or building owner who is getting a great sale price for the asset, and perhaps much of it in cash; or simply a weak market with few buyers. And so long as our clients enter into a transaction understanding the risks of being a “lender,” we are fine with that decision.
But we see many clients seduced by more favorable terms from a borrower or seller-financed buyer who desperately needs their cash versus a stingier cash buyer.
Our suggestion:Think about taking the money and running instead.
The risks inherent in being a lender is why they say: “Cash is king.”
The Cincinnati Bar Association has provided valuable support for our firm and our profession since I became an attorney. We are proud 100% members, and (I think) always have been!
Our thanks go to Union Township for adding this identifying sign to the Ivy Pointe Commerce Park today. We have made a commitment to Union Township, and they have made a commitment to us!
In a major ruling in favor of religious freedom, the Supreme Court struck down a provision in the Missouri State Constitution prohibiting churches and other religious organizations from receiving any public funds. In Trinity Church v. Comer, the Supreme Court found that the state’s “Blaine Amendment” violates the First Amendment. The Court’s 7-2 ruling (Justices Sotomayor and Ginsberg dissented), continues a recent trend in support of the First Amendment protections for religious liberty and free speech. You can read the opinion here.
Missouri funds a grant to help charities pay to replace playground equipment using recycled tires. Trinity Lutheran Church, which runs a day care program, applied for a grant. Despite being otherwise eligible for the grant, the state refused to allow the church to participate citing the state constitution’s prohibition:
That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.
Similar provisions exist in approximately thirty states. Named after 19th Century Senator from Maine, James G. Blaine, the Amendments were aimed at preventing public funding of parochial schools.
In issuing its ruling, the Supreme Court distinguished a previous case in which a state prohibition against providing a scholarship to a student who wished to study to become a minister was upheld (Locke v. Davey). “Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church.”
“The Free Exercise Clause ‘protect[s] religious observers against unequal treatment’ and subjects to the strictest scrutiny laws that target the religious for ‘special disabilities’ based on their ‘religious status.’” This ruling makes clear that blanket prohibition against any religious based organization from qualifying for a state benefit will not pass constitutional muster.
The Finney Law Firm prides itself on our aggressive stance in countering the actions of bureaucratic bullies through claims resulting not just in a victory in the administrative battle being fought, but also in recovering monetary damages, attorneys fees and injunctive relief against those very bureaucrats.
However, because of abstention under Younger v. Harris, 401 U.S. 37 (1971), and its progeny (that has been significantly scaled back by a the recent Supreme Court decision inSprint Communications, Inc. v. Jacobs, 571 U.S. __, 134 S.Ct. 584 (2013)) and other principles of administrative law and comity, it is a bit of a challenge of how to “turn the tables” on government actors and bring a challenge under 42 USC Section 1983 concurrent with the administrative proceeding.
We had such a case in 2012. There, our client was being disciplined by the Ohio Elections Commission in a proceeding we were certain was unconstitutional violation of her free speech rights.
First, we raised First Amendment defenses before the agency. They were simply deaf to such arguments. Then, when filing our Section 119 administrative appeal in Franklin County Common Pleas Court, we appended a claim for declaratory and injunctive relief under the First and Fourteenth Amendments to the United States Constitution as allowed by 42 USC Section 1983.
And, of course, to level the playing field against an agency who had the full resources of state govermment against her, such claims include the right to have the client’s attorneys fees reimbursed by the State if the Plaintiff prevails.
In Magda v. Ohio Elections Commission, Franklin County Common Pleas Court Case No. 12-CVH 10-13674, the state opposed that Complaint saying that state law did not tolerate a Section 1983 challenge to accompany an administrative appeal. The trial court disagreed, and Judge Mark Serrott wrote this decision allowing the challenge to proceed arm-in-arm with the Chapter 119 appeal.
Judge Serrott later granted the State’s Motion for Summary Judgment, denying both our administrative appeal and the Section 1983 challenge to the statute. That decision was appealed to the 10th Circuit Court of Appeals. Interestingly, the State at that level did not renew their challenge to the Section 1983 claim accompanying the Chapter 119 appeal. Thus, the issue proceeded with both claims before the appeals court.
In the end, the Court of Appeals overturned the trial court decision and granted summary judgment to our client on both the administrative appeal and the constitutuonal claims. Thus, Plaintiff won a permanent injunciton against the enforcement of the statute and reimbursement of the full measure of her attorneys fees dating back to the initiation of the action before the agency under the constitutional claim.
So, yes, a constitutuional challenge (or any claim challenging the authority of the legislature to enact the offending law or the agency to enforce the same in the manner that it has), can be brought along with a Chapter 119 administrative appeal.
This vigorous and creative response to a prosecution by bureaucrats raging out of control in Columbus is a prime example of how the attorneys at the FInney Law Firm succeed in “making a difference” for our clients.
Let us know how we can solve your business and bureaucratic challenges.
In a case that was previously discussed here, the Ohio Supreme Court issued an important ruling in a real estate valuation case, Terraza 8, LLC v. Franklin County Board of Revision, 2015-2063, yesterday.
R.C. 5713.03 was amended in 2012 – allowing that the auditor may consider a recent sale price as the true value of real estate rather than shall, and requiring that the property be valued “as if unencumbered.”
Writing for a unanimous Court, Justice Fischer agreed with the property owner that recent changes to R.C. 5713.03 mean that County Auditors are no longer required to adopt a recent sale price as the true value of real estate, and that the purchase price in sale and lease back transactions can be rebutted by a showing that the sale price does not reflect the value of unencumbered fee-simple estate. The decision is available online here.
