What flaws should be disclosed when selling my home? | McGlinchey Stafford
Nieberding vs. Barrante, 8th Dist. Cuyahoga # 110103, 2021-Ohio-2593
In that appeal, the Eighth District of Appeal upheld the trial court’s ruling, agreeing that sellers had no obligation to disclose holes in the dike and that the caveat emptor doctrine excluded buyers’ claims.
The bullet point: In accordance with RC 5302.30 (C) and (D), sellers of residential real estate must complete a residential property disclosure form disclosing “material matters relating to the physical condition of the property” and “any material defects in the property. Which are “inside the real knowledge” of the seller. If the seller fails to disclose a material fact with the intention of misleading the buyer, the seller may be held liable for the damage suffered by the buyer. That being said, the buyer has a duty to inspect the premises. More specifically, when the buyer “has had the opportunity to inspect the property, he is accused of knowing the conditions that a reasonable inspection would have revealed”. In other words, the buyer cannot view the Property Disclosure Form as a substitute for conducting their own property inspections. According to the relevant section of the disclosure form, material defects include any unobservable physical condition that could be dangerous to any person occupying the property or that could prevent a person from using the property. Further, the court noted that the caveat emptor doctrine excluded claims from buyers. In Ohio, the caveat emptor doctrine prohibits recovery for a structural defect in the property if the following are satisfied: “(1) the condition complained of is observable or may be discovered upon ‘reasonable inspection; (2) the buyer has had the opportunity to examine the premises without hindrance; and (3) there is no fraud on the part of the seller.
Trust assets subject to set-off
Zipkin v. FirstMerit Bank, NA, 8th Dist. Cuyahoga # 109501, 2021-Ohio-2583
In this appeal, the Eighth Appeal District upheld in part, set aside in part and remanded the trial court’s decision, finding that the bank had not acted inappropriately in clearing an account in the name of a trust. revocable.
The bullet point: In that case, the trustee of a trust brought an action against the bank, alleging that it acted inappropriately when it set off an overdue business loan with assets held in the trust’s bank account. The bank argued that it was entitled to set-off under a guarantee that the trustee individually signed. More specifically, the guarantee contained a provision on the “Right of set-off” which stipulated that the bank reserved the right of set-off on all the accounts of the guarantor with the bank, with the exception of accounts “for which set-off would be prohibited. by the law “. The bank argued that under RC 5805.06, the trust bank account was not the type of account where offsetting was prohibited by law. Under RC 5805.06, the assets of revocable trusts are subject to claims by creditors. In addition, with respect to irrevocable trusts, the creditors or assignees of the settlor may reach the maximum amount that can be distributed to the settlor or to the benefit of the settlor. RC 5805.06. To determine that the bank properly exercised its right of set-off, the court first analyzed the trust documents and concluded that the trust was a revocable trust. The court then considered whether or not the guarantor was the settlor of the trust. Under RC 5801.01 (S), a “settlor” is “a person, including a testator, who creates or contributes property to a trust”. Not only did the court determine that the surety was the settlor of the trust, but he was also the sole trustee in charge of the assets of the trust and was the sole beneficiary of the trust. The court took note of the official commentary to RC 5805.06 (A) (2), which states that the law was intended to prevent a settlor who, as here, is also a beneficiary of the trust, from using the trust as a ” shield ”against its creditors. . Since the trust was a revocable trust and the guarantor was the settlor, RC 5805.06 allowed the bank to access the assets of the trust to offset the delinquent business loan.
Concrete Creations & Landscape Design LLC v. Wilkinson, 7th Dist. Carroll # 20 CA 0946, 2021-Ohio-2508
In that appeal, the Seventh Appeal District upheld in part, reversed in part and remanded the trial court’s decision, agreeing that in all the circumstances, the accused was not liable for defamation because his publications on Facebook and his private text messages were constitutionally protected. opinions.
The bullet point: In this dispute between former business partners, the plaintiff alleged that the defendant committed defamation per se when he wrote Facebook posts and private text messages insulting the plaintiff. Under Ohio law, a publication in itself is libel if, on its face, it “reflects upon such a person’s character by ridiculing, hate or contempt, or in any way affects him. prejudicial in the exercise of his profession ”by the use of unequivocal words. The defendant responded by pointing out that while his statements were defamation in and of themselves, they were constitutionally protected under the so-called Ohio Opinion Privilege. The trial court and the appeals court both agreed, finding the defendant’s statements to be protected opinions. As this court explained, one of the elements that a plaintiff must prove in a libel action is that the allegedly defamatory statement is false. A statement considered to be an opinion in law cannot be proven false. In determining whether the defendant’s statements were allegations of fact or protected opinions, the court used the totality of the circumstances test. Under this test, there are at least four factors that courts consider: “(1) the specific language used; (2) whether the statement was verifiable; (3) the general context of the declaration; and (4) the larger context in which the statement appeared. In analyzing the specific language used, courts examine how the defendant’s words are commonly understood and “whether a reasonable reader would view the words used as language which normally conveys factual information or hype and opinion; whether the language has an easily verifiable meaning or is ambiguous. Under the second factor, courts consider whether the statement is objectively verifiable. If the statement “lacks a plausible method of verification, a reasonable reader will not believe that the statement has any specific factual content” but will understand that the statement is “loaded with values and represents a view that is patently subjective.” In analyzing the general context of the words, courts use “an analysis of the larger objective and subjective context of the statement” to determine whether the words should be “characterized as objective statements of fact or as subjective hyperbole”. Under this third factor, courts look for the use of language such as “in my opinion” and whether the general tenor of the statement is sarcastic, more typical of persuasive speech than factual reporting. Finally, courts examine the broader context of the words taking into account the place of publication of the statement, the social context, and the writer’s reputation for hyperbole and opinion. For example, courts consider whether a statement was posted in the forum section as opposed to the news section of a post.