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by: Michael Williams

The decision to involve an attorney in your real estate transaction depends upon your personal requirements. One of your real estate agent’s responsibilities is to advise you in the process of addressing your personal needs and helping you to achieve them.

Choosing an attorney to advise you can be an asset from the moment the first offer is made until the time of closing, or as a way to request assistance as needed throughout the process of the real estate transaction. Attorneys can assist with things such as title issues, preparation or review of the deed, counsel regarding how to take title, zoning ordinances, lien issues, and closing assistance.

If you are considering a complex transaction, then you may be wondering how to go about finding the right real estate attorney for your needs. A few recommendations would be to ask your real estate agent, ask family and friends, call the local Bar Association, conduct telephone interviews, and request a written list of references.

Keep a written record of each attorney that you interview, and rate each potential candidate according to their skills, effectiveness and fees. Note whether they charge a flat fee or by the hour.

Of course, having a good agent that offers assistance in those aspects of real estate transactions is the best way to meet your legal needs. Always consult your agent before making any decisions in choosing a real estate attorney.

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by: Ronald Hudkins

Trust and Estates is a rapidly growing area of practice in the law that includes estate planning, managing your estate during life and disposing of your estate at your death through the use of trusts, wills and other planning documents.

Learn about Distinctive Legal Practice Areas.

You can easily become familiar with the different practice areas to determine the type of lawyer who will work best on your legal matter. For the purpose of asset protection and estate planning you will need a lawyer well versed in Trusts and Estates.

You will want to hire an attorney who regularly handles matters in the areas of concern in your particular situation, and who will know enough about other fields to question whether the action being taken might be affected by the laws in other areas of law. For example, if you’re going to rewrite your will and your spouse is ill, the estate planner needs to know enough about Medicaid to advise you about whether it’s an issue with regard to your spouse’s inheritance.

Unfortunately, there are some attorneys who hold themselves out as experts in trusts and estates, but who have little or no experience in this area of practice. They recognize that the aging America represents a business opportunity for them and they hope to “cash in”. So you will want to be particularly careful in narrowing down your selection of a trust and estate planning attorney.

Finding a Lawyer May Be Easier Than You Think.

Creditable and trustworthy resources are already available to you on the Internet. For instance, www.lawyers.com offers a complete database of lawyers sorted geographically and by expertise.

Finding a Lawyer May Seem Like a Monumental Task.

You’re already anxious because you have a legal problem. A creditor may have sued you or you may have been injured in an auto accident. Perhaps you want to start a business, adopt a child or finally tackle your estate planning needs. In these situations, you need a lawyer to protect your rights, but each situation requires very different skills. Yet many people don’t know how to find a lawyer that is right for them, which only raises their anxiety level.

Not surprisingly, recent studies suggest that the vast majority of consumers (81%) wish there was a resource to help them find competent lawyers. The study also suggests that 62% would like to have access to legal resources on the Internet. This article outlines the basic steps to finding a lawyer and using Internet resources already available to you.

Check Out the Database of Lawyers in Your Community.

You can use www.lawyers.com. Other Internet resources can help as well. Lawyer referral services, operated by your local bar association, can assist in finding a lawyer who is right for you. Visit www.abanet.org/referral/ to find a referral service close to home. If you qualify financially, consider contacting your local legal aid service by clicking on www.abanet.org/legalservices/probono.html. You can also contact a legal professional association or the American College of Trust and Estate to find the best attorneys in your area.

Yet some things can not be done on the Internet! In all cases, be sure to interview the lawyer to assure yourself that he or she has the expertise and experience you need, and that you have a comfort level that will allow you to be honest and open with him or her. Usually, you will not be charged (or charged very little) for this initial consultation.

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by: Eric E. Willison and Andrew J. Ruzicho IIA. Limits As To Amounts

There are two lines of cases in Ohio which deal with whether courts will enforce lease provisions allowing a landlord to charge tenants for late fees. These lines of cases come to slightly different conclusions, but the bottom line is that landlords need to be very careful in charging tenants for late fees.

The first line of cases comes to us from the Eighth Appellate District. In the case of Siara Management v. Nedley, 1992 Ohio App. LEXIS 5265 (Oct. 15, 1992) Cuyahoga App. No. 61433, unreported, the lease called for the tenant to pay $30.00 in late fees if he was late five days, and $70.00 more if he were late ten days. The landlord tried to charge these amounts to the tenant and litigation ensued.

The Eighth Appellate District held that there is distinction between liquidated damages (allowable) and penalty clauses (not allowable) and that the court would use a three part test to distinguish between the two. Late fees would be allowable as liquidated damages if they were designed to compensate the landlord for damages which were:

(1) uncertain as to amount and difficult of proof, (2) the contract as a whole is not so manifestly unconscionable, unreasonable, and disproportionate in amount as to justify the conclusion that it does not express the true intention of the parties, and if (3) the contract is consistent with the conclusion that it was the intention of the parties that damages in the amount stated should follow the breach thereof.

In Nedley, the landlord did not make it past the first hurdle of the test. All that the landlord argued in court was that the late payment by tenants led to late payment charges assessed to the landlord by his creditors. The Court reasoned that “Any party due money could claim that the resultant decrease in cash flow might result in late charges against it. That is unduly speculative.” Had the landlord come to the court with evidence that the tenant’s late payment had caused him to incur damages in specific amounts, then those specific amounts might have been recoverable.

The Eighth District Court of Appeals also came to a similar conclusion in 200 W. Apartments v. Foreman, 1994 Ohio App. LEXIS 4081 (September 15, 1994), Cuyahoga Co. App. No. 66107 regarding a late fee of only $2.00 per day. In that case the court also found it significant that the landlord had shown no proof of its actual damages.

However, another of Ohio’s appellate district treated the matter very differently. In the case of Calabria v. Green, 1995 Ohio App. LEXIS 3903 (September 8, 1995), Trumbull Co. App. No. 95-T-5181, the Eleventh Appellate District Court held that while late charges of $10.00 per day (for 38 days) was not enforceable, “an agreed upon, one-time late fee, that is reasonable in proportion to the rental rate, and that has a rationale basis supporting the imposition of the charge, is proper.”

The Eleventh District Court of Appeals again came to the same conclusion in the case of Wadsworth v. Starcher, 1998 Ohio App. LEXIS 2909 (June 26, 1998) Trumbull Co. App. No. 97-A-0054. In Wadsworth, the Court agreed with the trial court that $5.00 per day in late charges over 92 days was not enforceable, and that the trial court’s reduction of the late fees to $100.00 was proper.

It is clear that “parties to a lease agreement can agree to anything they wish within the limits of the law.” Village Station Assoc. v. Geauga Co. (1992), 84 Ohio App.3d 448 at 451. The real question is: what are “the limits of the law”? R.C. 5321.14 prohibits parties to a lease from agreeing on illegal or unconscionable terms.

B. No Late Fees Under Oral Contracts

Where there is only an oral contract between the landlord and the tenant, at least one Ohio Court has held that no late fees can be assessed. Neubauer v. Patzkowsky, 1992 Ohio App. LEXIS 2919 (June 2, 1992) Franklin Co. App. No. 91AP-1236.

C. Waiver of Late Fees

Some landlords will try to collect late fees which have piled up over months and months. In the case of Habegger v. Paul, 2004 Ohio App. LEXIS 1971 (April 30, 2004) Wood Co. App. No. WD-03-038, a landlord sued the tenant for late fees which accumulated over a 14 month period. The Sixth District Court of Appeals held that the landlord waived his right to collect the late fees upon eviction by continuing to accept the tenants’ rent payments and not pursuing eviction until approximately 14 months after the first late payment. The Court reasoned that:

A party may voluntarily relinquish a known right through words or by conduct. State ex rel. Ford v. Cleveland Bd. Of Edn. (1943), 141 Ohio St. 124. In Galaxy Development Ltd. Partnership v. Quadax, Inc., 2000 Ohio App. LEXIS 4651 (October 5, 2000) Cuyahoga Co. App. No. 76769, the Eighth District Court of Appeals found that the landlord waived its right to collect holdover rent from the tenant by continuing to accept the original rental payments after expiration of the lease. The Galaxy court cited Finkbeiner v. Lutz (1975), 44 Ohio App.2d 223, wherein lessees failed to make timely payments of rent on numerous occasions and lessors accepted the late payments. The Finkbeiner court held that the failure of the lessors to make timely objection to the late payment of rent amounted to a waiver.

Courts in Ohio will not allow a landlord to collect late fees which have piled up over a significant period of time.

D. Dangers for the Landlord

Where a landlord can get into trouble with late fees is in a dispute over a security deposit. Let’s say the landlord has collected a security deposit in the amount of $500.00. The tenant leaves at the end of the lease term. The landlord finds $300.00 in damages at the apartment and also assesses $250.00 in late fees. Perhaps the landlord cannot show the court actual damages in the specific amount of $250.00. Maybe there was only an oral agreement between the landlord or the tenant. Perhaps the $250.00 in fees resulted from the landlord’s practice of letting the late fees pile up over time.

If any of these are the case, there is a good chance that even in the more landlord sympathetic appellate districts, the landlord will only be allowed to charge the tenant a greatly reduced amount if the facts fit the first example, and perhaps nothing at all if the facts fit the second or third examples.

This will leave $100.00 or more that should have been returned to the tenant, entitling the tenant to double damages and attorneys fees under Ohio Revised Code Section 5321.16. While double damages in the amount of $200.00 might not be all that big of a deal, wait until you get to the mandatory hearing on reasonable attorneys fees. Now we’re talking real money.

If you are trying to evict a problem tenant and your only basis is a failure to pay late fees, then the arguments above may have a bearing upon the issue of who has the right to possession when you get to the F.E.D. hearing. If a tenant can show the court that he stood ready at all times to pay the late fees, but that the landlord was holding out for an unreasonable amount, or if the tenant can show that he and the landlord engaged in a pattern of conduct of acceptance of late payments without protest, this could defeat the eviction action.

E. Lessons to Be Learned

One of the lessons to be learned from all of this is that late fees are something of a minefield when it comes to using them to reduce the amount of the security deposit returned to a tenant. The same is true when we are talking about evictions based upon a failure of the tenant to pay late fees.

Landlords should be aware of the problems that may arise when late fees are argued. Informing your attorney of your past practices with regard to late fees can save you both a lot of embarrassment, and perhaps allow the attorney to alter course in his arguments to get around potential hurdles.

Find this and more information at http://www.ohiolandlordtenant.com