Ohio’s Sixth District Court of Appeals recently affirmed an Order issued by the Ottawa County Court of Common Pleas granting summary judgment in favor of an party that was represented by our lawyers.  See Nationstar Mtge., LLC v. Cody, 6^th Dist. Ottawa Case No. OT-18-041, 2020-Ohio-5553.

In Cody, the borrower received $938,250 in exchange for a mortgage granted on two adjacent parcels located on Put-in-Bay Island.  One parcel contained a residential structure.  The other parcel was mostly vacant, but a portion of a detached garage was located on that “vacant” parcel, along with a private boat dock.   The heirs argued that the legal description contained in the Mortgage listed only the street address of the residential parcel.   Our lawyers presented evidence to the Trial Court showing that the Mortgage described both parcels by metes and bounds and by parcel numbers.   Our lawyers also produced evidence showing that the borrower had intended to mortgage the vacant parcel, such as the appraisal, which included both the detached garage and the private dock in the valuation of the property.  They also presented evidence showing that no separate street address had ever been assigned to the vacant parcel, and thus no such other street address could have been included in the description of the property to be encumbered.

The Trial Court granted summary judgment, finding that the Mortgage was unambiguous and should be enforced as to both parcels described in the legal description.  On appeal, the heirs claimed error based on the Trial Court’s refusal to consider the heirs’ testimony about their father’s claimed statements that the Mortgage wasn’t supposed to encumber the vacant lot.  The Appellate Court further found that the legal description included in the Mortgage clearly and unambiguously described both the residential parcel and the vacant parcel, and therefore affirmed the grant of summary judgment in favor of our Client.

To review the Cody Decision, click here.

Both the number and significance of cases involving disputes between landlords and tenants continue to rise.  Ohio’s Twelfth District Court of Appeals just decided a case in which a tenant was evicted for failure to pay rent, and the advantages one party had over the other proved costly for the losing party.  Landings at Beckett Ridge v. Holmes, 2020-Ohio-6900.

The landlord obtained an order from the Trial Court evicting the non-paying tenant.  The tenant appealed from that decision, which normally would have allowed the tenant more time to occupy the premises until the appeal (and all of the litigation) was completed.  However, that tenant did not file a Motion to Stay the underlying Trial Court Judgment.  As a result, the Court of Appeals dismissed the appeal, the tenant was evicted, and the tenant no longer had any rights in the premises.

To review the Holmes case, click here.

Considering whether to use an entity transfer for your commercial real estate transaction is more important than ever.  For multiple reasons (construction costs, lending terms, low supply, unrealistic seller expectations, to name a few), getting commercial real estate deals done is getting harder.  Sometimes, it makes the most sense to use an entity transfer structure for your deal.

There are even variations among forms of entity transfers – ranging from straight entity transfers – to so-called “drop-and-swap” transactions – each of which is better than the other under certain circumstances.

Certain interest groups are pushing, through legislation, to eliminate the opportunity to complete transactions at all, or to thwart financial feasibility of deals, and we are pushing back.  In these challenging economic times, thoughtfully considering these options is more important than ever.  Until a better model can be established, we all have to make the best of this model.  We believe we know how to do that extremely well.

Every week, we advise our Clients on the importance of this subject, and we believe we know better than any other firm in Ohio exactly where the law stands on this subject and where it is headed, so we believe we know better than any other firm how to help you determine how best way to structure transactions for financial feasibility and maximum success.

Let us know how we can help.

Click here to learn why nearly every major commercial brokerage that conducts business in Ohio chooses Sikora Law.

On December 29, 2020, Senate Bill 39 – the Transformational Mixed-use Development Tax Credit Bill – became the law of Ohio.  That new law is extremely important for the commercial real estate industry – it is something that is sorely needed as our economy pulls out of the Coronavirus Recession.

This new law will now enable certain transformational mixed-use developments to move forward.  Mixed-use developments with $50,000,000 or more in total project costs (and 15 stories or 350,000 square feet) that are in or around cities with a population of 100,000 or more, or smaller scale but still transformational mixed-use developments that are located more than 10 miles outside of a major city may qualify.

Unlike any other Ohio commercial real estate economic development law – it includes a first of its kind, built-in return on investment calculation and methodology to ensure that additional state and local taxes generated by the development will exceed the amount of the tax credits awarded to the developer.

Senate Bill 39 also improves Ohio Commercial Broker Lien Law by mandating recovery of all attorneys’ fees and costs for the prevailing party and streamlining the process for serving Broker’s Liens.

Our firm drafted portions of Senate Bill 39, and we were extremely involved in the process of advocating for its passage – before it became law.

House Bill 251 (the Bill regarding Contract Action Statutes of Limitations) has been favorably reported out of the Senate Judiciary Committee (receiving only only one dissent).  If that Bill becomes law, it would further reduce Ohio’s statute of limitations for a breach of contract action from 8 years to 6 years.

To review HB 251, click here.

Congratulations to our very own Mike Sikora and Rick Craven for receiving 2021 distinctions from Super Lawyers.  Mike was named a Super Lawyer, a distinction only given to no more than 5% of attorneys in each state, and Rick Craven’s Rising Star selection is only given to a maximum of 2.5% of attorneys in each state who are no more than 40 years old or who have been practicing law for no more than 10 years.  We are grateful to have Mike and Rick as leaders of our firm.

JobsOhio issued its initial awards under its new Ohio Site Inventory Program (commonly referred to as OSIP).  The OSIP Program provides grants and low interest loans to support speculative warehouse/industrial and office development projects throughout Ohio.  The initial round of awards ended-up being extremely competitive – with only approximately 10% of applicants receiving any form of award.  The vast majority of the development projects that received awards were warehouse/industrial projects.  JobsOhio is currently slated to re-open the application process for the next round of awards beginning July 2021.

Click here to learn how Sikora Law helps Developers & Owners of Commercial Real Estate streamline their legal needs.

NAIOP Ohio’s Board hosted the Ohio Development Services Agency Director, Lydia Mihalik, for a Zoom session.  The Ohio Development Services Agency administers several programs that are of critical importance to the commercial real estate industry in Ohio, including Ohio’s Opportunity Zone Program and Ohio’s Historic Tax Credit Program.  Mike Sikora led a discussion with Director Mihalik on several proposed enhancements to Ohio’s Opportunity Zone Program that are being considered.

Our firm obtained for our Clients approximately 20% of all Ohio Opportunity Zone tax credits awarded during Ohio’s inaugural round of OZ awards.  We are now working on many Opportunity Zone Applications for Round 2 for our Clients, based upon their 2020 Opportunity Zone development activity.

Click here to learn how Sikora Law helps Developers & Owners of Commercial Real Estate streamline their legal needs.

Last week, Senate Bill 39 – the Transformational Mixed-use Development Tax Credit Bill – was favorably voted out of the Ohio House Economic and Workforce Development Committee by a vote of 10-1. Yesterday, that Bill passed on the House floor by a vote of 82-1.  This extremely important Bill for the commercial real estate industry is now poised to move to the Ohio Senate for concurrence with the House amendments and then to the Governor’s desk for signature.

This Bill would incentivize mixed-use developments with $50,000,000 or more in total project costs (and 15 stories or 350,000 square feet) for developments in or around cities with a population of 100,000 or more, or smaller scale but still transformational mixed-use developments that are located more than 10 miles outside of a major city.

Our firm drafted portions of Senate Bill 39. Unlike any other commercial real estate economic development law – it includes a first of its kind, built-in return on investment calculation and methodology to ensure that additional state and local taxes generated by the development will exceed the amount of the tax credits awarded to the developer.

If this Bill becomes law, it will be help stimulate the economy and the commercial real estate business, in particular, by promoting additional commercial real estate development activity of significance – that is, by definition, transformative.

Ohio’s Eighth District Court of Appeals recently decided a landlord-tenant case addressing the requirements for parties to reach an enforceable contract when discussing a lease renewal.  In Realty Trust Servs., L.L.C. v. Mohammad, 2020-Ohio-3736, the Plaintiff sought eviction of the tenant from property following the expiration of the lease term after the parties attempted but failed to reach a definitive agreement on renewal.  The parties then exchanged emails about renewal, but the parties never finalized definitive renewal terms.

Once the term expired, the landlord served a statutory three-day notice, and the tenant tendered rent payments, which the landlord refused.  The landlord then filed an eviction action.

On appeal, the Eighth District Court of Appeals ruled that the landlord never extended an offer of definitive terms to the tenant, that the parties’ email exchange was a mere “invitation to negotiate,” and that the parties never reached a “meeting of the minds” on terms of renewal.  The Court of Appeals noted that there was no holdover tenancy because the landlord refused to accept rent following the expiration of the term.

This case serves as a useful reminder to landlords to be as clear as you possibly can in communications about renewals, and don’t accept rent following the expiration of a term if you want to immediately regain possession of the property.