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HomeA&ECulture
Published: Saturday, 3/31/2007

Homeowner s agreement leaked like the plumbing

Dear Dale: I am a real estate agent who represented a seller who turned off the home s utilities prior to the closing. When the city of Toledo turned the water back on, a leak was discovered. Is a clause in the purchase agreement binding if it requires the seller to pay for any repairs or replacement of plumbing facilities required by the utility provider at the time of the transfer of utility services?

ANSWER: The quick answer is that it looks like the seller is on the hook for repairing the leak. The purchase agreement is a contract, so if it calls for the seller to be responsible for certain repairs, the seller is responsible. If the seller didn t want to assume that risk, he should have crossed out that clause in the purchase agreement.

Normally, the old rule of buyer beware governs home purchases in Ohio. That means the buyer takes the property as is unless the defect wasn t open to observation or discoverable after a reasonable inspection. The seller doesn t have to reveal every problem with the home as long as those problems could be discovered and the buyer had the opportunity to conduct an inspection. State law requires disclosure of such things as problems with the home s roof, foundation, walls, and floors provided the seller actually knows about the problems.

A seller can t lie to a buyer about a material flaw on the property that is somehow hidden or not obvious. For example, if a seller knows he has a leaky roof, but tells the buyer the roof is sound, and after the first rainstorm there are so many leaks that the buyer needs an umbrella in his house, a fraud has been committed. The buyer can sue for fraudulent misrepresentation.

In this case, if the seller didn t know about the bad water line and hadn t signed off on the clause calling for him to be responsible, the buyer probably would have bought the water-line repair along with the home.

Dear Dale: I recently received a ticket by one of Toledo s new camera cops for running a red light. I paid the $95 fine, but several people have told me that I could have tried to fight the ticket. Some people claimed I could have ignored the fine, but others said if I hadn t paid it, I wouldn t be able to renew my registration on my car. What s the story?

ANSWER: Toledo s red-light cameras cause a lot of confusion because they re handled differently than if an officer pulled you over. The tickets that are issued for running a red light or for speeding call for civil rather than criminal penalties. That means the city can fine you, but you won t have points assessed against your license and it won t be part of your driving record.

Your friends are right that you could have fought the ticket. Your ticket came with an affidavit that you could have completed saying you weren t the driver of the vehicle or that it had been stolen. Your ticket also told you that you had a right to go before a hearing officer where you could submit evidence that might help you avoid the penalty. Had you decided not to pay the ticket, the city could have sent it to a collection agency or attorney. Even if you hadn t paid the ticket, you wouldn t have been prevented from renewing your vehicle registration, which is controlled by the state, not the city.

By the way, it s worth noting that the constitutionality of red-light cameras is being challenged in the Ohio Supreme Court, and a class-action suit has been filed in Lucas County Common Pleas Court. So red-light cameras may not be around much longer.

Dale Emch practices law at the Charles E. Boyk Law Offices, LLC, in Toledo. In his column, he will discuss general legal principles and answer readers questions. Neither Mr. Emch nor The Blade present or intend his column to be taken as legal advice. Readers seeking legal advice should consult with an attorney. Readers should send their questions to Mr. Emch at demch@charlesboyk-law.com or Dale Emch, 520 Madison Ave., Suite 655, Toledo, OH 43604.



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