Title Ins & Point of Sale Inspections - Ohio

Title Ins & Point of Sale Inspections - Ohio

Rental Property Investor · Toronto, Ontario · Member since 2012 · 538 posts · 298 votes

A question for all the knowledgeable lay title experts around. I understand that this is not legal advice but 'just' the opinions of (hopefully) informed people.

I purchased a multifamily property at an auction in an Ohio municipality that requires a 'Point of Sale' (POS) inspection prior to a property being transferred. For those that do not have this in their jurisdiction, a POS inspection is the municipalities procedure / opportunity to make sure the building is up to 'code', note any violations and hopefully get them fixed. A property can be sold 'AS IS WHERE IS' but still requires the inspection and certificate to be issued by the building department. The responsibility to order the POS rests absolutely with the owner / seller.

The closing date came and the ownership was transferred but no POS was carried out. The county registrars office should NOT have allowed the transfer without the POS but they did. The municipality has 'become aware' of the transfer and is now demanding a POS.

Does this become a title defect? Is there a claim against the title or escrow company for not ensuring that the local ordinances of the municipality were followed?

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Cleveland, OH · Member since 2011 · 400 posts · 223 votes
11y
Originally posted by @Account Closed:

Interesting topic @Oren K.?) has had experience in wholesaling Cleveland properties with POS violations?

Specifically can you assign or double close a purchase contract for a property with POS requirements? 

 Hal,

Typically it is illegal under city ordinances for a seller or escrow agent to transfer a property without first complying with the city POS regulations. Most cities allow two methods of compliance:

  1. 1. Fix the violations;
  2. 2. Deposit funds into escrow at the direction of the city as security for repairs.

I very much doubt you'll be able to find an escrow/title agent in town who will do a double closing in a POS city because these ordinances often attach criminal penalties to noncompliance. An assignment closing will be a different scenario as the ordinance doesn't typically contemplate contracts for purchase (although I know at least one city that I believe requires you to at least get the initial POS inspection before entering into a contract to purchase).

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  • Joel OwensBusiness Member
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    Real Estate Broker · Canton, GA · Member since 2010 · 15k+ posts · 11k+ votes
    11y

    Ben Leybovich is in Ohio.

    He might have more info on this.

  • Real Estate Professional · West Palm Beach, FL · Member since 2012 · 23k+ posts · 13k+ votes
    11y

    Read your title policy; exceptions.  Talk to a LOCAL  RE attorney.  The inspection "results/requirements" would have become your problem anyway.  Same thing with the inspection occurring now....it's your problem to deal with/fix any issues.  No real harm in it occurring now, from "damages" aspect.

  • Rental Property Investor · Phoenix/Lima, Arizona/OH · Member since 2012 · 4k+ posts · 4k+ votes
    11y

    I have never encountered this. Is this in Cleveland/Akron/Massilon area by chance?

    I would think you've got a bit of an issue...

  • Rental Property Investor · Toronto, Ontario · Member since 2012 · 538 posts · 298 votes
    11y

    @Ben Leybovich - Yup - East Cleveland. But the question is generic; does the title / escrow company have any responsibility to ensure one is done and if they did not do this, is there a claim against them?

    @Wayne Brooks - Yes and No. Typically in a NON-Auction sale, the cost of the POS and who pays for what is a matter of negotiations with wide ranging results depending on how much the seller and / or buyer what the deal to go through. In this case though you are likely correct in that the sale was 'AS IS WHERE IS'

  • Investor · Boca Raton, FL · Member since 2012 · 1k+ posts · 1k+ votes
    11y

    @Christian Carson may be able to shed some light on this.....

  • Real Estate Professional · West Palm Beach, FL · Member since 2012 · 23k+ posts · 13k+ votes
    11y

    The auction terms also likely put any responsibility for any such requirements...on the Buyer.  Again, there is no financial harm to you....any required repairs would be out of your pocket anyway.

  • Cleveland, OH · Member since 2011 · 400 posts · 223 votes
    11y

    Most POS ordinances in Cuyahoga County criminalize the act of transferring title without complying fully with the POS statute. Escrow agents and sellers are generally regulated here, not purchasers. Did you receive a title insurance policy? 

    In any case, if you must incur expenses due to the title agent's negligence, you may have a civil claim against that title agent for damages. I would not go as far as to say that it constitutes a title defect moreso than a simple property sale in a municipality that requires it. Of course, you can't resell the property without compliance unless you find another green title agent who doesn't know about the POS ordinance. 

  • Rental Property Investor · Toronto, Ontario · Member since 2012 · 538 posts · 298 votes
    11y

    @Wayne Brooks The auction terms make DD fully the responsibility of the buyer but the buyer simply can NOT order the POS report. This, by ordinance, is the responsibility of the Seller and I believe that the escrow agent has a 'duty' to ensure that all ordinances are complied with. IF the escrow agent does not have a 'duty', you could never be certain of any transfer.

    @Christian Carson My thinking is similar to your comment:

    "Of course, you can't resell the property without compliance unless you find another green title agent who doesn't know about the POS ordinance."

    Which means that I can not sell the property with out doing something in violation the ordinance and that sure seems like NOT clear title. It may not be direct title defect but it sure seems like a short step to one.

    Yes - Title insurance by First American who also handled escrow.

    The question seems to be; does the transfer without a POS cloud title and if so, is there a claim against the insurance to rectify the issue.

    Anyone else care to venture an opinion?

  • Real Estate Professional · West Palm Beach, FL · Member since 2012 · 23k+ posts · 13k+ votes
    11y

    Opinion: No title insurance claim.  Get the POS inspection, and move on.

  • Investor · Cleveland, OH · Member since 2015 · 6k+ posts · 2k+ votes
    11y

    @Christian Carson Property investing newbie here. People are buying and selling boarded-up homes in Cuyahoga County regularly, but I do not imagine that there are POS inspections before ANY of those Title transfers, where the price paid is often just land value.

    And as far as being able to rent out any bought property in Ohio, I have heard from a company that performs home inspections that "unfortunately, Ohio does NOT have any pre-tenanting inspection requirements". 

    If I misunderstood, and/or if that quote-unquote only applies to certain counties within Ohio, it would be REALLY good to know where to check which counties require what (without having to spend days and days researching)! Help!!!...

  • Real Estate Investor · Norwalk, CA · Member since 2011 · 118 posts · 25 votes
    11y

    @Brent CoombsI have rentals in Youngstown, Ohio and I have to pay a yearly Retail Registration fee to the city for each property I own and they did inspect the property the first time I registered it (my other property is a land contract and was registered by the sellers). I don't know what the rules are in other Ohio cities but that's my experience in Youngstown.

  • Investor · Cleveland, OH · Member since 2015 · 3 posts · 0 votes
    11y

    Interesting topic @Oren K.?) has had experience in wholesaling Cleveland properties with POS violations?

    Specifically can you assign or double close a purchase contract for a property with POS requirements? 

  • Cleveland, OH · Member since 2011 · 400 posts · 223 votes
    11y
    Originally posted by @Account Closed:

    Interesting topic @Oren K.?) has had experience in wholesaling Cleveland properties with POS violations?

    Specifically can you assign or double close a purchase contract for a property with POS requirements? 

     Hal,

    Typically it is illegal under city ordinances for a seller or escrow agent to transfer a property without first complying with the city POS regulations. Most cities allow two methods of compliance:

    1. 1. Fix the violations;
    2. 2. Deposit funds into escrow at the direction of the city as security for repairs.

    I very much doubt you'll be able to find an escrow/title agent in town who will do a double closing in a POS city because these ordinances often attach criminal penalties to noncompliance. An assignment closing will be a different scenario as the ordinance doesn't typically contemplate contracts for purchase (although I know at least one city that I believe requires you to at least get the initial POS inspection before entering into a contract to purchase).

  • Rental Property Investor · Toronto, Ontario · Member since 2012 · 538 posts · 298 votes
    11y

    Just to update the thread;

    I had my lawyer look into this. After reviewing the ordinance and the title policy, their conclusion was as @Wayne Brooks wrote; do the inspection and move on. Their reasoning was along the following lines for the various participants:

    Title Insurance Claim - At the time of closing, there was no encumbrance on title and the ordinance violation could not be discovered by title search / review. Policy itself is very clear that only defects that exist at closing are covered. The act of closing is what actually creates the violation and this would have to go before the courts to decide if the policy covers it or not.

    Registrar - Should have caught this and it is a violation of ordinance but it would have to be the city that sues and for many reasons is simply not going to happen.

    Title Agent - Yes they also should have also caught this but this would be a full blown law suit and is simply not worth it.

    Not a large enough sum to make a big stink over so the auction company and their agents 'get away' with it. Perhaps if I had my own title agent it would have made a difference. Live and learn.

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