Transferring Real Estate in a Nut Shell

Q:       How is real estate transferred in Ohio?
A:        Most commonly in Ohio, one party transfers title to or an interest in real property to another party through a written document called a deed. There are a few situations, however, such as when the government uses its eminent domain power to acquire private property for a public improvement, where a court may order the transfer of real estate without a deed. Also, in rare cases, title may be transferred as the result of continuous possession by a person other than the owner. Ohio law requires a transfer of real estate to be in writing.

Q:       What must a deed contain?
A:        A deed must:

·         identify the current owner (“grantor”) and the new owner (“grantee”);

·         specifically describe the land to be transferred (a street address is not enough; a legal description is required); and

·         contain language saying that the grantor “grants” the property to the grantee.

The grantor must sign the deed in front of a notary public or another authorized officer, who will acknowledge the signing of the deed.

Q:       The title to my house is in my name alone. Will my spouse have to sign the deed when I sell the property?
A:        Yes. Ohio law gives your spouse what is known as “dower” rights, which means that after your death, your spouse may claim an interest in the property even though you have sold it, and even though your spouse’s name does not appear in your deed. Your spouse must sign the deed to the buyer to clear the dower interest from the title.

Q:       If I want to transfer my property to someone else, must my deed to the property be recorded with the county recorder’s office?
A:        While it is generally wise to record your deed, Ohio law does not require a deed to be recorded for title to pass from you (the grantor) to a grantee. To transfer title, you must deliver the executed and acknowledged deed to the grantee. This means that you must give up control over the deed during your lifetime and intend to transfer title to the grantee. To complete the transfer, the grantee must accept the delivered deed. If the deed benefits the grantee, acceptance ordinarily will be presumed, but if the deed is not recorded in the county recorder’s office where the property is located, the grantee may risk losing the property to a subsequent buyer. The subsequent buyer generally will not have legal notice of the transfer unless the deed is recorded. Let’s say you, the property owner, give a deed to Buyer A, but Buyer A does not record that deed. Later, you deed the same property to Buyer B (who pays for the property without knowing about the deed you gave to Buyer A). Because Buyer A’s deed was not recorded, Buyer B will not have legal notice of the deed to Buyer A. If Buyer B records the deed, Buyer B may be considered the new owner.

Q:       What is a quitclaim deed, and how does it differ from a warranty deed?
A:        A quitclaim deed transfers whatever title the grantor may have without giving the grantee any assurance that the grantor has any title to the property. A parent who gives a parcel of real estate to a child might use a quitclaim deed, because the child likely will trust the parent’s title.
            In a warranty deed, the grantor promises (“covenants”) that he or she is transferring title free of liens and other encumbrances. Ohio law recognizes: 1) general warranty deeds covenanting against all lawful adverse title claims and 2) limited warranty deeds covenanting only against adverse claims created by the grantor.

Q:       Can I sign a deed so my house can be transferred automatically when I die?
A:        Yes. You can sign a survivorship deed, which transfers the title to yourself and at least one other person named in the deed. When you die, your interest will transfer automatically to the other person if he or she is alive. For example, if you and your spouse sign a survivorship deed to your house and you are the first to die, title will pass to your spouse without going through your probate estate. You can also sign and record a transfer-on-death designation affidavit identifying one or more beneficiaries who will receive the property when you die.  Unlike a survivorship tenant, a transfer-on-death beneficiary does not have an interest in the property until your death. Also, you may revoke a transfer-on-death designation before your death by signing and recording a new affidavit.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Dayton attorney Steven J. Davis of Thompson Hine LLP. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Ohio Supreme Court Decision Affects Ownership of Foreclosed Properties

Q:       My mortgage lender foreclosed on my house. How would I know if the lender had the right to file the foreclosure?
A:        Every mortgage loan has two important documents: the note and the mortgage. The note is your agreement to pay the lender. The mortgage is the document that gives the lender the right to foreclose if you don't make the payments due under the note. Your lender can gain the right to bring a lawsuit against you in one of two ways. First, your mortgage might have been assigned to the lender before your foreclosure case was filed.  If so, a document called “assignment of mortgage” would be attached to the foreclosure complaint, and the name on that assignment would be the name of the plaintiff (that is, the person or entity bringing the foreclosure suit, such as your lender or an entity your lender has designated). Second, the plaintiff might hold your note, although this may be difficult to establish.  Sometimes the note will include a stamp that says “endorsed to [plaintiff],” indicating that the plaintiff probably held the note. In other cases, the note will say “endorsed to (blank).” In such a case, the plaintiff is not specifically named and can bring the case only by having physical possession of the note when filing the foreclosure case.

Q:       My house is in foreclosure and will be taken soon.  Is there anything I can do to make sure my rights are protected?

A:        Your foreclosure complaint will have a note and mortgage attached to it. An assignment of mortgage also may be attached.  If the mortgage is either in the plaintiff’s name or is assigned to the plaintiff, then the foreclosure is probably valid. If not, look at the note. If the note is made payable to the plaintiff, then the foreclosure is probably valid. If the note is endorsed in blank, the plaintiff should have alleged in the complaint that it holds the note, and later will submit an affidavit stating that it holds the note. If the plaintiff did not take any of these steps, there could be a defect, and this may entitle you to have the case dismissed.

Q:       My property was sold at a foreclosure sale a couple of years ago.  Now I understand that a Supreme Court of Ohio decision may affect the validity of that sale.  Is that true?

A:        Possibly. On October 31, 2012, the Supreme Court of Ohio issued its decision in Fed. Home Loan Mtge. Corp. v. Schwartzwald. In that case, the court found that the lender’s right to bring a foreclosure case is determined on the date that a complaint is filed.  To have the “standing” necessary to bring a foreclosure case, the plaintiff must either hold the note or have been assigned the mortgage. If your foreclosure was filed and the plaintiff either did not hold the note or was not assigned the mortgage at the time of filing, the foreclosure may not be valid.

Q:       What will happen to future foreclosures in Ohio in light of this Supreme Court of Ohio decision?

A:        In the post-Schwartzwald world, lenders will be very cautious to make sure that they have the right to bring the foreclosure in the first place. As the law currently stands, the plaintiff can bring the foreclosure if the plaintiff either holds the note or was assigned the mortgage. However, a case is now being appealed to the Supreme Court of Ohio to determine whether the plaintiff must hold both the note and the mortgage of record in order to bring the foreclosure case. 

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by J. Michael Debbeler, a partner in the Cincinnati firm of Graydon Head. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Private School Is Option for Ohio Students

Q:       What is a private school?  
A:        Private (or non-public) schools fall into two categories in Ohio: chartered and non-chartered.  The majority of private schools are chartered.   

To be considered a “chartered” private school, the school must apply for and receive a charter from the State Board of Education. To receive a charter, the school must meet certain requirements adopted by the State Board of Education, including a requirement that the school comply with the Operating Standards for Ohio Schools. Chartered private schools consist of schools that are both sectarian and non-sectarian. A “sectarian” school is one that is affiliated with a “sect,” which is most commonly a religious organization. (Note: A “chartered private school” should not be confused with a “community school,” which is sometimes referred to a “charter school” in Ohio.)  A community school is publicly funded, but is granted some flexibility with regard to public school rules and regulations

Q:       How are private schools funded?

A:        Chartered private schools do not receive per-pupil foundation payments from the Ohio Department of Education or real estate tax revenues. For this reason, private schools are largely funded privately and students usually pay tuition. Chartered private schools may, however, receive reimbursement from the Ohio Department of Education for mandated services and certain administrative costs. Private schools may receive federal funding for providing special education services and other education-related services. 

Q:       Must private school teachers be licensed?

A:        Yes. Chartered private school teachers are required to comply with all of the Ohio Department of Education’s certification and licensing requirements. 

Q:       What are the testing requirements for private school students? 

A:        Chartered private school students must take annual standardized tests and the Ohio Graduation Test (OGT). Other state tests are optional.  

Q:       Is transportation provided to private schools? 

A:        The public school that serves as a student’s home district must provide transportation to the chartered private school as long as the student lives more than two miles from the private school and the private school is less than 30 minutes away from the public school that the student would have attended. 

Public schools may provide payments in lieu of transportation if it deems the transportation to be impractical. Public schools are only required to provide transportation for chartered private school students in grades K-8, unless the public school already provides transportation for its own high school students. If that is the case, the public school must provide such transportation to high school students in its district who attend private schools.  

Q:       What is a non-chartered private school? 

A:        A non-chartered private school is one that has not sought a charter from the State Board of Education, usually because of truly held religious beliefs. Because such schools are not chartered by the State Board of Education, no assistance is provided by the state or by public school districts. Also, colleges, universities and employers have discretion in deciding whether to accept credits, graduation credentials or a diploma issued by a non-chartered school.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by attorney Mark A. Weiker of the Columbus firm Means, Bichimer, Burkholder & Baker Co., LPA. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

What You Should Know about Public Schools in Ohio

Q:       What is a public school?  
A:        Public schools are the “traditional,” publicly funded primary and secondary schools that include city, exempted village, local and joint vocational school districts. Public schools are operated under the direction of boards of education, which usually consist of 5 members elected from within the district. While Ohio’s community schools (“charter schools”) are also public schools, this article focuses on traditional public schools. 

Q:       How are public schools funded?  

A:        Ohio’s public schools receive federal, state and local funding. Federal funds are provided primarily through incentive-based programs such as the No Child Left Behind Act (NLCB) and the Race to the Top (RttT). Federal funds are also provided through the Individuals with Disabilities Education Act (IDEA) for special education services. 

State funding comes primarily from Ohio Department of Education per-pupil foundation payments, which are adjusted to some degree based on district size and need.

Local funds come primarily from taxes paid by real property owners in the school district. Local funding can vary widely among districts, depending on a district’s overall real estate values. Largely because of this variance in real estate values and taxes collected, the Supreme Court of Ohio ruled in 1997 that Ohio’s school funding was unconstitutional.  The Court’s decision has resulted in some school funding equalization, but funding inequity remains a challenge. 

Q:       Must public school teachers be licensed?

A:        Yes. Public school teachers must comply with all Ohio Department of Education certification and licensing requirements. At a minimum, a public school teacher must earn a bachelor’s degree from an accredited institution, complete a teacher preparation program (including field experience and student teaching), pass a licensure examination and possess good moral character.

 Q:      Can a public school choose the students it will and will not serve?
A:        No. Ohio law requires all children between the ages of six and 18 to attend either a private or a public school, and public schools must admit any child of school age residing within its district. Public schools may adopt an open enrollment policy (tuition-free attendance) for students residing in adjacent or non-adjacent district, but may not exclude students residing in the district.

A public school may remove (suspend or expel) a resident student for violations of the student code of conduct. Ohio laws also require students to be removed from school in certain serious situations (e.g., involving weapons or threats). 

Q:       Do students ever have to pay tuition to attend a public school?
A:        Occasionally. The general rule is that students may only attend school tuition-free in the district where their parents reside. This applies to natural or adoptive parents and to the residential parent if the parents are not married. First, schools may allow students outside of their district to pay tuition to enroll, and students may opt to do so. Second, if neither parent resides in the district where the student resides, the district where the student resides may charge tuition. In many cases, however, the cost of tuition must be “charged back” to the school district where the parent(s) reside, so that the student is not responsible for the cost. There are several exceptions to this general tuition rule, including exceptions for children in foster homes, families buying or building a home in the district, children of school employees and special education students. 

Q:       How are public school students tested?

A:        Public school students must take all state-required tests, including diagnostic assessments, proficiency tests, the Ohio Achievement Assessment (OAA) and the Ohio Graduation Tests (OGT).  In 2012, Ohio adopted the Third Grade Reading Guarantee, which requires districts to diagnose reading deficiencies for students in grades K-3, to implement reading improvement and monitoring plans, and to provide intensive reading interventions. Assessments and proficiency testing for special education students may be exempted or modified, depending on the student’s Individualized Education Plan (IEP). 

Q:       Is transportation provided to public schools?

A:        Transportation must be provided for students in grades K-8 who live more than two miles from school. Transportation may be provided for students living less than two miles from school or for students attending high school, but neither is mandatory. The student’s public school district also must provide transportation to any private school, as long as the student lives more than two miles from the private school and the private school is less than 30 minutes away from the public school that the student would have attended. Public schools must provide such transportation for private school students in grades K-8 only, unless the public school already provides transportation for its own high school students, in which case it must provide the same for students attending private schools.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by attorney Mark A. Weiker of the Columbus firm Means, Bichimer, Burkholder & Baker Co., LPA. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

What You Should Know about Municipal Courts

Q:       What is a municipal court?

A:        Ohio’s municipal courts are trial courts located in counties and townships throughout Ohio. There are more than 120 municipal courts in Ohio.   

Q:       What kinds of cases do municipal courts hear?

A:        Depending on the size of the municipality, a municipal court may have the following divisions that hear a variety of cases:

(1)  a civil division, which generally hears civil cases with less than $15,000 at issue;

(2)  a traffic/criminal division, which generally hears traffic offenses and misdemeanor criminal cases; and

(3)  a housing and/or environmental division, which generally hears civil and criminal actions to enforce local building, housing, health and safety codes in places intended for human habitation, and in some municipalities, evictions and landlord/tenant issues.

Q:       How many judges does each municipal court have?

A:        Each municipal court has a different number of municipal court judges, depending on a particular municipality’s population. In some counties, one judge handles all municipal court divisions. In other counties, one judge may handle two or more divisions. In the most populous counties, many judges share the workload of a single division. For example, the Franklin County Municipal Court has 14 judges in the general division who hear both civil and traffic/criminal cases, and one judge who hears cases in the environmental court. 

Q:       How are cases assigned to municipal court judges?

A:        Each municipal court assigns cases differently. Generally, if there is more than one judge, each civil case is randomly assigned when the case is filed. For a criminal case, the on-duty judge will generally handle the defendant’s arraignment. At the arraignment (the defendant’s first appearance in court), the defendant is informed of the charges and enters a plea of guilty or not guilty. After the arraignment, the case is usually randomly assigned to one of the municipal court judges, who oversees the case to its conclusion.   

Q:       What kind of workload do Ohio municipal court judges have?

A:        In 2011, nearly two million new cases were filed in Ohio’s municipal courts. More than half of these new cases were traffic violations. The workload for a particular municipal court judge can vary widely. For example, in 2011, each municipal court judge in Hamilton County handled more than 22,000 cases, while the part-time judge in the Oakwood Municipal Court handled a little over 1,700 cases.

Q:       How are municipal judges chosen, and what qualifications must they have?

A:        Municipal court judges are elected to six-year terms. Municipal court judges must be attorneys with at least six years of experience in the practice of law.

Q:       What do municipal court judges spend their time doing?

A:        Municipal court judges spend much of their time hearing cases in court. In many jurisdictions, municipal court judges handle both misdemeanor and felony criminal arraignments. At the arraignment, the defendant is informed of the charges against him or her and is asked to enter a plea of guilty or not guilty. In a criminal case, a municipal court judge conducts pretrial conferences and hearings, and rules on evidentiary and other pretrial motions. The municipal court judge also conducts criminal trials. In a civil case, a municipal court judge hears and rules on discovery and other pretrial motions, conducts pretrial conferences, facilitates settlement of the claims, and, if necessary, conducts civil trials.

Q:       Do all municipal court trials have juries?

A:        No. Juries hear some cases, but sometimes a case is brought before a judge, who decides the matter. In a misdemeanor criminal case, the defendant has a right to a jury of eight people, and all eight must agree to a verdict of guilty or not guilty. A criminal defendant who would rather have a judge hear his or her case must waive the right to a jury both in writing and verbally, in open court. In a civil case, a litigant (the person bringing the case before the court) is not automatically entitled to a jury. Rather, he or she must request a jury in writing and usually must submit a jury deposit. If a civil case is tried to a jury, eight jurors are chosen, and at least six of the eight must agree in order to reach a verdict.

  

Q:       What if I think an error was made in my case?

A:        You have the right to appeal to the district court of appeals that handles the county or municipality in which your case was tried. For a map of the Ohio courts of appeal covering each Ohio municipality, visit www.supremecourt.ohio.gov/JudSystem/districtCourts/.

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by attorneys Douglas Riddell and Bridget Purdue Riddell of Riddell Law LLC. The column offers general information about the law. Seek an attorney’s advice before applying this information to a legal problem.

Lemon Law for All-Terrain Vehicles Protects Ohio Consumers

Q:       Can Ohio’s Lemon Law help me if my ATV is a lemon?

A:        Yes. The law can require the manufacturer to replace or buy back an all-terrain vehicle (ATV) that you purchased or leased if it:

• had a defect that substantially impaired its use, value or safety; and
• was not, or could not be, properly repaired or repaired in a timely manner.

The law does not, however, cover parts added to your ATV by a dealer.

Q:       Does the Lemon Law cover my used ATV?

A:        Generally, no.  It will only be covered if you bought the ATV within the first year or 18,000 miles of operation and you reported the problems within the first year or 18,000 miles of operation.

Q:       My ATV does not have an odometer for mileage. Does the Lemon Law still cover my ATV?

A:        Yes. Not all ATVs come with an odometer. If your ATV does not have an odometer, then the lemon law will apply, but only during the first year. For an ATV with an odometer, the lemon law applies during the first year or the first 12,000 miles, whichever comes first.

Q:       How do I know if my ATV is a lemon?

A:        All new ATVs come with warranties from the manufacturer. If you have problems, you should go back to your dealer or another authorized repair shop to have the problem diagnosed and fixed.  If the problem is not corrected after a reasonable number of attempts or days out of service, then your ATV may qualify for Ohio Lemon Law remedies.  You may be able to get a new ATV or your money back.

Q:       How many repair attempts must be made before my ATV is considered a lemon?

A:        Your ATV will be considered a lemon if:

1)         substantially the same problem has been subject to repair three or more times and still exists or recurs;

            2)         the ATV has been out of service for a total of 30 or more calendar days for repairs;

            3)         eight or more attempts have been made to repair any substantial defect or condition that does not comply with the warranty; or

            4)         at least one repair attempt has been made for a safety-related problem and the problem either continues to exist or recurs.

Q:       I think I have a lemon ATV. What should I do?

A:        While it is not required, it may be helpful for you to contact the manufacturer directly if your dealer has been unable to correct the problem within a reasonable amount of time or reasonable number of attempts. Consider asking the manufacturer to replace your ATV or buy it back.  If you’re unable to reach an acceptable agreement with the manufacturer, you may want to ask that your dispute be arbitrated, if arbitration is available.

An ATV manufacturer cannot require you to go through any arbitration process under the Ohio Lemon Law unless the process has been “state-certified.” No ATV manufacturer uses a state-certified arbitration board at this time.  Always check with the Ohio Attorney General’s office for current information.  If the ATV manufacturer (e.g., Arctic Cat, Bombardier, Honda, Kawasaki, Polaris, Suzuki, Yamaha, Yamaha, etc.) has not received state certification for an arbitration board, you may want to seek help from a lawyer. 

Q:       How can I find out more about the Ohio Lemon Law and other consumer-related issues?

A:        For more information, or to file a consumer complaint, write to the Ohio Attorney General, Consumer Protection Office, 30 E. Broad St., 14th floor, Columbus, OH 43215-3428.  Or you can call the toll free helpline at the Consumer Protection Office, 1-800-282-0515.  For online information or to file a complaint, visit: www.ohioattorneygeneral.gov.

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by attorney Ronald L. Burdge of the Burdge Law Office Co, LPA in Dayton. The column offers general information about the law. Seek an attorney’s advice before applying this information to a legal problem. For more information on a variety of legal topics, visit the OSBA’s website at www.ohiobar.org. 

Electronic Medical Records: Ready or Not, Here They Come!

The U.S. Department of Health and Human Services has embarked on an ambitious mandate to require all health care providers receiving federal funds, including Medicare payments, to adopt electronic medical record systems.  This mandate has raised questions for healthcare providers and their patients.

Q:       What is the electronic medical record?

A:        Your electronic medical record (ERM) is the data related to your health care treatment, medications, x-rays, hospitalizations, operations, office visits, prescriptions, insurance payments and all other matters related to the health care delivered by health care providers anywhere in the United States.  This data is stored in a centralized electronic “folder,” and provides you and all your health care providers with information about who treated you, what treatment protocols were used and the results of your treatment, etc.

Q:       How is my EMR created?

A:          Your EMR is composed of one or more electronic files created by computers, electronic devices and software. Your healthcare provider enters your healthcare information and answers questions on a computer screen so the computer software can create and maintain your EMR.  All EMR software is certified to be “interoperable” so it can be read by all the computer systems of all U.S. healthcare providers. 

Q:       What are some advantages of having an EMR?

A:        The EMR allows you and all of your healthcare providers to have access to all of your healthcare information in one place. The goal of this increased availability is to improve diagnoses and patient care, and to provide a more standardized, empirically based treatment plan for your particular health conditions. 

The EMR keeps track of all medications patients take. EMR software can record the effects of prescriptions medications taken with over-the-counter herbal supplements, and can be updated as new drug interactions become known. For these reasons, the EMR should help healthcare providers to avoid prescribing medications that might cause serious complications for their patients.

Also, the EMR includes “follow-up” protocols that should help patients stick to their treatment plans. For example, if a doctor orders an MRI, the EMR system will route the MRI order to support personnel, who will then contact the patient to schedule the MRI.

Q:       What are some challenges associated with EMRs?

A:        Patient privacy and security measures have been built into the EMR software, but because so many people can access your EMR, security is a challenge. 

Accuracy is also a concern. Because the EMR is created, in part, by making selections from drop down menus, etc., some information appearing in the EMR may not have been written by the doctor, but by the software program in response to a checked box or clicked button. This “auto-population” can result in errors, such as the recording of procedures that were never actually done. Removing erroneous data from the EMR can also be difficult. Accuracy of EMR data also affects billing and insurance. The U.S. Department of Health and Human Services is trying to determine whether an increase in charges by health care providers using EMR is the result of fraud or improved accuracy and accountability.

The government is now studying the impact of EMR record accuracy on patient safety. It has been suggested that a new EMR patient safety agency similar to the National Safety Transportation Board that tracks the automobile safety.

Because “interoperability” has not yet been achieved, the various systems may not be able to “talk” to each other. This means that all your information may not be available in a single location to all health care providers.  

Standardization of care is also an issue. The EMR is created, in part, when your doctor chooses from a drop down menu of “best practices” based upon empirical data. The “best practices” are designed to help doctors choose treatment protocols that surveys have shown work best for the largest number of patients, but they also may reduce treatment options for patients who fall outside survey parameters.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Donald A. Wochna, chief legal officer for Vestige Digital Investigations. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.