April 12, 2017

Significant Changes to Ohio Laws Governing Real Estate Transactions and Conveyances

by William D. Fergus, Jr., Esq., Holfinger Stevenson Law Firm

Significant changes to Ohio law governing real estate transactions and conveyancing took effect on April 6, 2017. The changes summarized below affect real estate brokers, settlement services providers, title insurance underwriters, and court-appointed guardians of legally incompetent persons. These are collectively some of the most important and wide-ranging changes to Ohio’s laws affecting the real estate industry in decades.

BROKER CLASSIFICATIONS (Ohio Rev. Code §4735.01 & §4735.081
Ohio now has two broker classifications, “principal broker” and “associate broker.” Each brokerage must assign at least one associate broker to act as the brokerage’s principal broker. Principal brokers are charged with supervisory responsibilities over all licensees employed by the brokerage. Principal brokers may delegate management duties to either associate brokers or management level licensees, who are then legally liable for the performance of such duties. Associate brokers are not legally liable for the overall operation of the brokerage, and are only liable for those management functions assigned to them by principal brokers.

GOOD FUNDS LAW. (Ohio Rev. Code §1349.21)
In recent years, Ohio’s real estate settlement services providers have experienced a dramatic increase in check fraud, particularly fraud involving counterfeit money orders, bank checks and other forms of certified funds. Under the amended good funds statute, settlement services providers (mostly title insurance agents, but some attorney offices as well) will no longer be able to accept funds for a residential real estate transaction transmitted by means other than electronic funds transfer in an aggregate amount greater than $1,000.00. Funds transmitted to the settlement services provider via a check from a licensed real estate brokerage are exempt from the revised law, but funds transmitted from one title insurance agency to another are not.

GUARDIAN LAND SALES (Ohio Rev. Code §2127.012)
Under previous Ohio law, a guardian’s only option for selling real estate owned by the ward was to implement a land sale proceeding under ORC § 2127.10. Land sales proceedings, which require the guardian to file a separate adversarial case in which the guardian must name all parties other than the ward with an interest in the real estate as defendants, are typically time-consuming, complicated, and expensive. The new statute provides for a simplified method of obtaining authority to sell real estate owned by the ward, similar to the proceeding that administrators of a decedent’s estate may utilize. Under the new law, guardians of an estate may sell the real estate if : (1) the ward’s spouse and “all persons entitled to the next estate of inheritance from the ward in the real property”, ``` all of whom must be adults, consent to the sale and such consents are filed with the probate court; (2) the sale price is equal to at least 80% of the appraised value of the property; and (3) the guardian provides a bond or additional bond in an amount that the court deems sufficient.

OHIO’S CURATIVE STATUTE (Ohio Rev. Code §5301.07)
Under previously existing law, certain defects in instruments conveying an interest in real property raised a question of the validity of such instruments until the passage of twenty-one years from the date of recordation. Such defects often made real estate transactions more difficult, time consuming and expensive, and were occasionally the subject of litigation. The new statute reduces the time period from twenty-one to four years for curing certain defects in the making of an instrument of conveyance, including, but not limited to: Lack of proper attestation; a defective or omitted notary certificate of acknowledgment; and instruments where “[t]he name of the person with an interest in the real property does not appear in the granting clause of the instrument, but the person signed the instrument without limitation.” The new law also provides that an instrument properly recorded in the chain of title "provides constructive notice to all third parties of the instrument notwithstanding any defect in the making, execution, or acknowledgement of the real property instrument."

William D. Fergus, Jr.