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Legal Groundwork

By Robert Moore, Attorney and Research Specialist, OSU Agricultural & Resource Law Program

One of the more common ways that farm families involuntarily lose farmland is through partition.  Under Ohio law, any person that is a co-tenant (co-owner) of real estate has partition rights.  Essentially, partition rights allow a co-tenant to force the other owners to buy them out or force the land to be sold.  Partition is a harsh, but arguably necessary, right of every co-tenant of real estate.  With proper planning, partition can be avoided.

Partition law is codified in Section 5307 of the Ohio Revised Code.  A partition is initiated by a co-tenant filing a petition for partition with the common pleas court.  A partition must be filed in the county in which the real estate is located.  Any co-tenant, even one owning a small percentage of the real estate, may file the partition.  The petition is very similar to filing a lawsuit and all co-tenants are served notice the petition.  All defendant co-tenants are provided an opportunity to respond to the petition.

After all co-tenants have been served and had an opportunity to respond to the petition, the court will appoint a commissioner.  The role of the commissioner is to essentially oversee the petition process on behalf of the court. The partition commissioner is permitted to physically divide the real estate if the property can be divided without the loss of value.  Due to the unique nature of farmland and the variation within each parcel, administrators rarely will physically divide the land.  Instead, the commissioner will usually decide to sell the land at auction and divide the sale proceeds among the owners. The first step in selling the land is to obtain the value of the land by appraisal. 

After the value of the property is established, each party will be given an opportunity to buy the land at the appraised value.  If no party wishes to purchase, the land will be ordered sold by the court.  The land may be sold at sheriff’s sale but the parties usually agree to sell the land at public auction.  The one issue that the feuding co-tenants can usually agree upon is that they are likely to get a better price at an advertised auction rather than a sheriff’s sale.   The land must bring at least 2/3 of the appraisal price at auction.  After the land is sold, the proceeds are divided among the co-tenants in proportion to ownership.

The reason that partition law is a necessity is that Ohio law provides very little guidance to co-tenants as to how to manage their co-owned real estate.  For example, Ohio law implies that unanimous consent must be obtained in the management of real estate.  Therefore, one co-tenant holding a minority ownership percentage can prevent the land from being leased or sold.  Ohio law solves this issue by providing partition rights.  Basically, the law says that if the co-tenants cannot resolve their differences, then any one of them can force sale the land and divide the proceeds.  Partition is necessary because the law seeks to allow individuals to divest themselves of any asset they may own.  Without partition, a person could be forced to own real estate that they may not want to own and/or do not receive financial benefit.

Consider the following example.  Amy, Bob and Charlie inherit a farm from their parents.  Amy and Bob want to lease the land to a neighbor farmer but Charlie insists he is going to farm it.  Charlie has no experience farming and Amy and Bob know it will end up in a disaster if Charlie gets his wish.  Any potential tenant that Amy and Bob consider is contacted by Charlie and told the farm is not for lease.  Amy and Bob get frustrated and decide to file a partition because they are tired of dealing with Charlie and do not think they will get a fair, financial benefit from the farm if Charlie is the operator.  The court orders the farm sold and Amy, Bob and Charlie share the proceeds.

The risk of partition is not limited to just the initial family members who may own the land.  Any future owner also has the same partition rights.  Spouses, children and anyone else who may  become a co-tenant can force a partition.

Using the same scenario as above, assume Amy dies.  Her parents assumed that Amy’s share of the farm would go to her children (their grandchildren) but Amy never got around to doing and estate plan. So, under Ohio law, everything goes to her husband, Dale.  Dale has no attachment to the farm and just sees dollar signs now that he is a 1/3 owner of the farm.  Dale quickly files for partition and forces the sale of the land so that he can have money to buy the boat he has always wanted.

This example illustrates how easy it is for someone to become a co-tenant and gain partition rights.  Deaths, divorces, and poor business and estate planning can allow someone to become a unexpected and unwanted co-tenant.  Partition law does not care how long farmland has been in the family or how vital it is for a farming operation. Partition law treats a city lot that has been owned for a few months the same as a 1,000-acre farm that has been in the family five generations.  Partition can lead to harsh results that should be avoided if possible.

With proper planning, partition can be averted.  In the next installment, the various strategies to prevent partition will be discussed.

See the prior blog post “Ohio Case Illustrates the Risk of Leaving Farmland to Co-Owners” by Peggy Hall for a discussion of a Madison County case and the perils of partition.

Posted In: Property
Tags: Partition, Forced Sale, Farmland
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Ohio Bureau of Workers' Compensation logo
By: Peggy Kirk Hall, Wednesday, May 25th, 2022

Farms and other businesses can benefit by using independent contractors to fill labor needs while not having the same financial and legal responsibilities the business has for its employees.  But state and federal laws allow those advantages only if the worker is truly an independent contractor.  When a worker classified as “independent contractor” functions as an employee in the eyes of the law, a business can be liable for failing to meet its employer obligations for the worker.   That’s exactly what happened in a recent case before the Ohio Supreme Court.

The company.  The case involved Ugicom (the company), paid by Time Warner Cable under a subcontract to provide workers to install underground cable.  Workers used the company’s website to select and document installation jobs and the company paid the workers at rates it determined.  The installers were required to wear badges and vests identifying the company and to pass drug tests and background checks, all coordinated by Time Warner.  The company required installers to sign a one-year independent contractor agreement containing a “non-compete clause” that prohibited them from providing installation services for competitors.  The contract also required installers to respond to service requests within two hours.  Installers had to provide their own hand tools, transportation, cell phones, and laptops, but used cable obtained from Time Warner.  They could work any day or time consented to by customers.  The company paid the installers by the job and did not withhold taxes or provide any benefits.

The Bureau of Workers Compensation (BWC) audit.  The BWC audited the company to decide whether it had paid the correct amount of workers’ compensation premiums for all of its employees.  The BWC examined the company’s treatment of workers it had hired to install cable as independent contractors.  Concluding that the company exercised “too much control” over the installers, the BWC determined that the installers were actually employees for workers’ compensation purposes and the company owed $346,817 in unpaid premiums for the employees.  The company unsuccessfully appealed the decision to the agency and the Tenth District Court of Appeals and the case ended up before the Ohio Supreme Court.

The Ohio Supreme Court review.  For purposes of the workers’ compensation program, Ohio law provides that the controlling determination in whether a worker is an independent contractor or an employee is “who had the right to control the manner or means of doing the work.”  There is not a bright-line test for making such a determination, however.  Instead, the Ohio Supreme Court explained, the BWC must consider a set of factors related to who controls the manner or means of the work.  Those factors include:

  1. Whether the work is part of the regular business of the employer
  2. Whether the workers are engaged in an independent business
  3. The method of payment
  4. The length of employment
  5. Agreements or contracts in place
  6. Whether the parties believed they were creating an employment relationship
  7. Who provides tools for the job
  8. The skill required for the job
  9. The details and quality of the work

The Ohio Supreme Court’s role was to determine whether the BWC relied upon “some evidence” when reviewing each of the factors to reach its conclusion that the company controlled the manner or means of the installers’ work.   The Court concluded that most, although not all, of the BWC’s conclusions were supported by at least some evidence and upheld the BWC’s decision.  The factors and evidence that received the most attention from the Court included:

  • Independence from the company.  The installers’ public image when working identified them as being with the company; they all wore the same badges and vests, and some had signs on their vehicles with the company’s name. 
  • Method of payment.  The company controlled the rate of payment, which was nonnegotiable and did not include a bid process as is typical for independent contractors. The “take-it-or-leave-it” approach indicated control over the installers.
  • Length of employment.  The installers had an ongoing relationship with the company and did not advertise their services to the community at large.
  • Agreements and contracts.  The company’s non-compete clause restricted the installers’ freedom to work and indicated a measure of control over the workers.
  • Skill requirements.  The BWC concluded that the minimal skill required to install the cable was not high or unique, and the company offered no facts to show that the installers required specialized skills.

Disagreement on the court.  Two of the Supreme Court Justices, Kennedy and DeWine, dissented from the majority opinion. Their primary point of disagreement was that there was no evidence supporting the BWC decision.  The evidence instead suggested that the company controlled only how the installers were paid, and the installers controlled the manner and means of doing their work.  The dissent criticized the BWC for jumping to a quick conclusion that the company’s true motives were “to evade the obligations associated with having employees.”

What does this mean for farm employers?   Farms often rely on independent contractors for seasonal and intermittent help with work like baling hay, running equipment, and doing books. Are these workers true independent contractors or are they employees?  That is a fact dependent question, but we can imagine many scenarios where the farm has a majority of the control over the mode and manner of such work.  Farms are subject to Ohio’s workers’ compensation law, so a farm could be audited by the BWC just as the company in this case was and could see similar results for misclassifying employees as independent contractors. 

Implications for all businesses.  The case carries several implications that raise needs for businesses that use independent contractors: 

  1. Recognize that state and federal tests can differ.  Many are familiar with the IRS test for independent contractors but note that the Ohio Supreme Court applied its unique Ohio test for determining independent contractors in regard to BWC premiums. State and federal laws differ.  It’s important to apply the appropriate test for the situation.
  2. Review the manner and means factors for each independent contractor.  For each worker claimed as an independent contractor, review the nine factors listed above to ensure that the business isn’t exerting the most control over the manner and means of the work.  Where possible, adjust practices that give the business unnecessary control over how and when the work is performed.  Consider these:
      • Use employees to do the regular work of the business and independent contractors for high-skill or unique tasks.
      • Ensure that the business isn’t controlling the public image of the workers.  The workers should not be branded or identifiable with the business through clothing, name badges, hats, vehicles, etc.
      • Require independent contractors to submit bids or proposals on the amount and method of payment for their work.
      • Avoid using the same independent contractor for an extended period of time and ensure that the worker’s services are available to other businesses.
      • Don’t restrict the worker’s freedom to work for others, especially via a contract or agreement.
  3. Maintain records and evidence of the work situation.  The BWC need only have “some evidence” that the nine factors indicate a high level of control over the mode or manner of work, but the business may offer facts and evidence to the contrary.  Good recordkeeping is imperative.  A business that can’t provide stronger facts and evidence in favor of the business, like the company in this case, might be at risk of an employee classification by the BWC.

While there are benefits of using independent contractors to meet labor needs, farms must recognize the associated risk of misclassification.  For workers' compensation purposes, farms can avoid those risks by ensuring that it is the independent contractor, not the farm, who controls the "manner or means" of doing the work.  Read the Ohio Supreme Court’s opinion in State ex rel. Ugicom Enterprises v. Morrison here.

 

By: Barry Ward, Monday, May 23rd, 2022

Higher input costs and higher crop prices have been the theme for the last several months. Higher production costs in 2021 gave way to even higher costs for the 2022 production year. Factors affecting both supply and demand have continued to drive commodity crop prices higher. The result of all of this change is a positive margin outlook for 2022 commodity crops.

Production costs for Ohio field crops are forecast to be higher than last year with higher fertilizer prices leading the way. Variable costs for corn in Ohio for 2022 are projected to range from $578 to $708 per acre depending on land productivity. The trend line corn yield (183.7 bpa) scenario included in the corn enterprise budget shows an increase in variable costs of 44%.  

Variable costs for 2022 Ohio soybeans are projected to range from $311 to $360 per acre. Variable costs for trend-line soybeans (56.5 bpa) are expected to increase 40% in 2022 compared to 2021.

Wheat variable expenses for 2022 are projected to range from $249 to $321 per acre. The trend line wheat yield (74 bpa) scenario included in the wheat enterprise budget shows an increase in variable costs of 50%. 

Returns will likely be positive for most producers depending on crop price change throughout the rest of the year. Grain prices used as assumptions in the 2022 crop enterprise budgets are $7.00/bushel for corn, $14.25/bushel for soybeans and $7.50/bushel for wheat. Projected returns above variable costs (contribution margin) range from $450 to $835 per acre for corn and $333 to $606 per acre for soybeans. Projected returns above variable costs for wheat range from $195 to $345 per acre although significant crop price increases since last fall (when the price was set for this enterprise budget) will likely cause wheat to be more profitable than these return projections indicate.

Return to Land is a measure calculated to assist in land rental and purchase decision making. The measure is calculated by starting with total receipts or revenue from the crop and subtracting all expenses except the land expense. Returns to Land for Ohio corn (Total receipts minus total costs except land cost) are projected to range from $260 to $619 per acre in 2022 depending on land production capabilities. Returns to land for Ohio soybeans are expected to range from $205 to $462 per acre depending on land production capabilities. Returns to land for wheat (not including straw or double-crop returns) are projected to range from $100 per acre to $239 per acre assuming a planting-time price of $7.50/bushel. If a current forward harvest price for wheat of $11.50/bushel is used, the Return to Land is in a much higher range of $325 to $576 per acre depending on land production capabilities.

Total costs projected for trend line corn production in Ohio are estimated to be $1,054 per acre. This includes all variable costs as well as fixed costs (or overhead if you prefer) including machinery, labor, management and land costs. Fixed machinery costs of $78 per acre include depreciation, interest, insurance and housing. A land charge of $207 per acre is based on data from the Western Ohio Cropland Values and Cash Rents Survey Summary. Labor and management costs combined are calculated at $105 per acre. Details of budget assumptions and numbers can be found in footnotes included in each budget.

Total costs projected for trend line soybean production in Ohio are estimated to be $678 per acre. (Fixed machinery costs: $62 per acre, land charge: $207 per acre, labor and management costs combined: $60 per acre.)

Total costs projected for trend line wheat production in Ohio are estimated to be $593 per acre. (Fixed machinery costs: $36 per acre, land charge: $207 per acre, labor and management costs combined: $52 per acre.)

Data used to compile these enterprise budgets includes research, surveys, market data, economic modeling, calculations and experience of authors.

Current budget analyses indicates very favorable returns for all three primary commodity crops but crop price change and harvest yields may change this outcome. These projections are based on OSU Extension Ohio Crop Enterprise Budgets. Newly updated Enterprise Budgets for 2022. have been completed and posted to the Farm Office website: https://farmoffice.osu.edu/farm-mgt-tools/farm-budgets

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Legal GroundworkBy Robert Moore, Attorney and Research Specialist, OSU Agricultural & Resource Law Program

The relationship between farmland owner and tenant often goes beyond just a business transaction.  It is common for the tenant to lease the same farmland for many years or for the tenant/landowner relationship to span several generations.  The relationship between the parties may evolve into one of great trust and respect – the landowner knowing that the tenant will treat the land like their own and the tenant knowing the landlord will always be fair with them.

Sometimes, when the landowner knows that their heirs do not have interest in owning the land, they will promise to give the tenant the first chance to buy the farm at landowner’s death.  Tenants will always appreciate this gesture so that they do not have to outbid their neighbors at a public auction when the landowner dies.  However, a mere promise is not enough.  To protect the tenant’s right to purchase the farm, the landowner must take proactive measures.

Under Ohio law, and every other state, verbal promises regarding real estate are rarely enforceable.  Because real estate is such an important asset, courts do not want to have to guess as to what a buyer and seller may have agreed upon.  So, in most situations, if it is not in writing, a court will not enforce verbal promises regarding real estate.

Example.  Landowner has leased her land to Tenant for 25 years and verbally promised that when she dies Tenant will get to buy her farm.  Upon her death, her heirs do not want to sell to Tenant because they think they will get more at auction.  Because Landlord’s promise was only verbal, the heirs can ignore Tenant and sell at auction.

So, what can be done to ensure that a landlord’s desire for a tenant to buy the farm is enforceable?  The following are options available to Landlord and Tenant.

 

Will or Trust

The landlord can include a provision in their will or trust giving the tenant the right to buy the farm.  Upon landlord’s death, the trustee or executor will be obligated to sell the land to the tenant.  This is an easy solution to give the tenant a chance to buy the farm.  However, it is not a perfect solution.

Wills and trusts can be changed at any time.  The tenant has no guarantee that a landlord will not change their will or trust and remove the purchase provision.  For as long as the landowner has mental capacity, they can change their will or trust anytime they wish.  So, while putting the purchase option in the will or trust is better than a verbal promise, it is not a guarantee the tenant will have a chance to buy the farm.

Practice Pointer.  When giving a tenant the right to purchase a farm, consider also providing them with a small amount of money from the estate/trust.  By giving them even $100, the tenant becomes a beneficiary of the estate/trust and is entitled to be informed of all aspects of the administration.  There could be some dispute as to whether the tenant is a beneficiary of the estate/trust if they only have purchase rights.  A beneficiary of an estate/trust has certain rights that a mere buyer would not have.

 

Right of First Refusal

For the tenant, a better strategy may be to enter into a Right of First Refusal (ROFR) with the landowner.   A ROFR is an agreement that gives the tenant the chance to buy land at the landowner’s death or before the landowner can transfer it.   The ROFR includes a provision that makes it binding upon the landowner and their heirs so that the ROFR survives the landowner’s death.  Upon the landowner's death and before the land can be transferred to heirs, the ROFR is triggered and tenant can decide if they wish to buy the land.  The ROFR should be signed by both parties, notarized and recorded.

Example.  Landowner wants to ensure that Tenant has a chance to buy her farm when she passes away.  Landowner and Tenant execute a ROFR that states upon Landowner’s death, Tenant will have a chance to buy the land at appraised value.  The ROFR is made binding upon the Landowner’s heirs and recorded.  When Landowner dies, the purchase provision in the ROFR will be triggered and Tenant will have an opportunity to buy the land.

The disadvantage of the ROFR for the landowner is that it cannot be changed.  The ROFR is a contract and once signed cannot be changed without the tenant’s consent.  If the landowner wants to keep the option to change their mind regarding the sale of the farm, they should not enter into a ROFR but opt for the will/trust strategy instead.

 

Purchase Terms

Regardless of which of the aforementioned strategies are used, time and effort should be spent specifying the purchase terms.  The will/trust or ROFR should include specific language addressing the following:

  • Identify the Property.  Use parcel numbers, legal descriptions, FSA farm numbers and/or acreage to specify what land is being offered for sale.  Do not leave any room for misunderstandings of what land is being offered to the tenant.  Avoid using only farm names to identify (i.e. “Smith Farm”)
  • Purchase Price.  Clearly state how the purchase price is determined.  If by appraisal, consider using a licensed, certified appraiser to avoid any perception that the appraiser favors one party or the other.  Also consider including a three-step appraisal process allowing either party to get their own appraisal if they dispute the original appraisal.  A flat price can be used for the purchase price but the parties risk the flat price not adjusting to market conditions.  The landowner may also include a discount % on the purchase price to help the tenant.
  • Deadlines.  The purchase terms should give the tenant a specific number of days to decide if they want to purchase the farm.  This term should begin to run after the purchase price has been established.  The tenant should be required to exercise their purchase option by giving written notice to the estate/trust.  A closing date should also be set, usually a specific number of days after the tenant has provided the written notice to purchase.
  • Other Purchase Terms.  Include any other purchase terms like title insurance and transaction costs.

 

Summary

Landowners and tenants should not rely on verbal promises for the purchase of the farm at landowner’s death.  Using either a will/trust or ROFR can ensure that a tenant will have a legally enforceable right to purchase the farm.  When drafting the will/trust or ROFR, include specific purchase terms to avoid conflict between the tenant and the landowner’s heirs.  The parties should seek legal counsel to assist in drafting the documents to be sure that all legal requirements are met.

Signficant surface water draining across farm field
By: Peggy Kirk Hall, Wednesday, May 18th, 2022

We can count on legal questions about surface water drainage to flow steadily in the Spring, and this year is no exception.  Spring rains can cause drainage changes made on one person’s land to show up as harm on another’s land.  When that happens, is the person who altered the flow of surface water liable for that harm?  Possibly.  Here is a reminder of how Ohio law deals with surface water drainage problems and allocates liability for drainage interferences, followed by guidance on how to deal with a drainage dispute.

Ohio law allows landowners to change surface water drainage

Back in 1980, the Ohio Supreme Court adopted a new rule for resolving surface water disputes in the case of McGlashan v. Spade Rockledge.  Previous Ohio law treated water as a “common enemy” to be pushed onto others, then absolutely prohibited any land changes that would increase surface water drainage for lower landowners.  In McGlashan, the Court replaced these old laws with the “reasonable use rule” that remains the law in Ohio.  The rule states that landowners do have a right to interfere with the natural flow of surface waters on their property, even if those changes are to the detriment of other landowners.  But the right to alter drainage is limited to only those actions that are “reasonable.”

Drainage changes must be “reasonable”

Although it allows drainage changes, the reasonable use doctrine also states that landowners incur liability when their interference with surface water drainage is “unreasonable.”   What does that mean?  The law contains factors that help clarify when an interference is unreasonable, a determination made on a case-by-case basis.  The factors attempt to balance the need for the land use change that altered drainage against the negative impacts that change has on other landowners.  A court will examine four factors to determine whether the drainage change is unreasonable:  the utility of the land use, the gravity of the harm, the practicality of avoiding that harm, and unfairness to other landowners.    For example, if a land use change has low utility but causes drainage harm to other landowners, or the landowner could take measures to prevent unfair harm to others, a court might deem the landowner’s interference with drainage as “unreasonable.”

What to do if a neighbor’s drainage is causing harm?  

The unfortunate reality of the reasonable use doctrine is that it requires litigation, forcing the harmed party to file an action claiming that the neighbor has acted unreasonably.  Before jumping into litigation, other actions might resolve the problem.  An important first step is to understand the physical nature of the problem.  Can the cause of the increased flow be remedied with physical changes?  Is there a simple change that could reduce the interference, or is there need for a larger-scale drainage solution?  Identifying the source of the harm and the magnitude of the drainage need can lead to solutions.  Involving the local soil and water conservation district or a drainage engineer might be necessary. 

Based on the significance of the solutions necessary to eliminate the problem, several options are available:

  • If identified changes would remedy the problem, a talk with a drainage expert or a letter from an attorney explaining the reasonable use doctrine and demanding the changes could encourage the offending landowner to resolve the problem.  If the landowner still refuses to remedy the problem, litigation is the last resort.  The threat of litigation often spurs people into action.
  • Sometimes the issue is one that requires collaboration by multiple landowners.  Identifying a solution and sharing its costs among landowners, based on acreage draining into the area, can be a way to solve the problem.
  • For more substantial drainage problems, a petition for a drainage improvement with the soil and water conservation district or the county engineer might be necessary.  Petitioned drainage improvements involve all landowners in the affected area and are financed through assessments on land within that area.  A visit with those agencies would determine whether a petition improvement is necessary and if so, how to proceed with the petition.
  • For smaller fixes, a landowner always has the option of filing a claim for damages through the small claims court.  The estimated damages or repairs must fall below the $6,000 limit for small claims.  A landowner can make the claim without the assistance of an attorney, and the dispute could be resolved more quickly through this forum.

As the Spring rains continue, keep in mind that the reasonable use doctrine sets a guideline for Ohio landowners:  make only reasonable changes to your surface water drainage and don’t cause an unreasonable drainage problem for your neighbors.  Where changes and interferences are unreasonable and landowners are unwilling to resolve them, the reasonable use doctrine is the last resort that provides the legal remedy for resolving the problem.

For more information on Ohio drainage law, refer to our law bulletin on Surface Water Drainage Rights

Legal GroundworkBy Robert Moore, Attorney and Research Specialist, OSU Agricultural & Resource Law Program

 

Establishing a new entity in Ohio is relatively easy.  The first step is to submit an application to the Ohio Secretary of State along with a $99 fee.  This application can be done online with the fee being paid with a credit card.  For an LLC, the application only needs to include the name of the entity and the name and address of a contact person.  Applications for corporations and other entities may require a bit more information but nothing overly burdensome.  The Secretary of State reviews the application and either approves the application or rejects and provides information as to what needs corrected. 

Upon approving the application, the Secretary of State will issue an Articles of Organization certificate, or similar document, for each new entity.  This certificate is confirmation that the state of Ohio recognizes the entity, and it is permitted to conduct business in Ohio.  Upon the entity being registered, business documents such as operating agreements and ownership certificates should be completed. 

Usually, a few weeks after registering a new entity, credit card applications will begin to show up.  As mentioned previously, each new entity must provide the name and address of a contact person for the entity.  The name and address are publicly available on the Secretary of State’s website.  Credit card companies retrieve this information and send applications hoping the new entity needs a credit card to conduct business.  Credit card companies are not the only solicitors to use the contact information. 

The credit card applications are easily identifiable, obvious in their intent and can be easily discarded if not needed.  However, a more nefarious letter is likely to show up as well.  It is common for new entities to receive an envelope that looks like it is from an official government entity.  Upon opening the letter, a form that also looks official will request $67.50, $90 or some other amount for a copy of the certificate of organization or certificate of good standing.  Upon first glance, the letter and enclosed form looks like something you would receive from a government agency. 

The certificate of organization will be provided to the new entity upon registration.  At any time, a copy of the certificate of organization can be obtained from the Ohio Secretary of State web site for no cost. A certificate of good standing, sometimes requested by lenders, can be obtained from the Secretary of State for $5.  The certificate of good standing merely states the entity is still registered with Secretary of State.  The point being, there is likely no reason to pay a company for the articles of organization or a certificate of good standing. 

There is nothing illegal about the letters requesting money for a certificate of organization.  If you look closely at the form, somewhere it will say it is not from a government agency.  If someone wants to pay $90 for a certificate that is provided for free by the Secretary of State they are within their rights to do so.   

The intent of this article is to make new business entity owners aware that they do not need to spend extra money on certificates after their entity is registered with the state.  Paying for the requested certificates is probably just a waste of money.  Unfortunately, people who are registering entities for the first time are often not aware of what is required by the state and just assume they are required to pay the extra fees.  If in doubt, contact your attorney. 

 

Below is an example form letter requesting $67.50 for a certificate of good standing.  You will need to look closely to find the disclaimer that it is not from a government agency. 

 

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paved bikeway with cyclists and hikers on ohio rural land.
By: Peggy Kirk Hall, Friday, May 06th, 2022

An appeals court ruling now stands in the way of a bikeway project begun more than 27 years ago by the Mill Creek Metropolitan Park District (MetroParks) in Mahoning County.  The Seventh District Court of Appeals recently ruled that MetroParks did not have the power of eminent domain when it attempted to acquire undeveloped stretches of the bikeway.  Several landowners have challenged MetroPark’s use of eminent domain for the project over the years, but this is the first case to yield a positive outcome for landowners who have not wanted the bikeway on their properties.  We take a closer look at the decision in today’s post.

The case

The court case began in 2019, when MetroParks offered landowner Diane Less $13,650 for a permanent easement for construction of the bikeway across her land.  When the landowner did not agree to the conveyance, MetroParks filed an eminent domain proceeding in the Mahoning County Court of Common Pleas.  The landowner responded that MetroParks did not have authority to use eminent domain for the bikeway project and attempted to have the case dismissed through a summary judgment motion.  The trial court found that MetroParks was authorized to appropriate the property for the bikeway and denied the motion, and the landowner appealed.

The appellate court began its review of the case by pointing out that whenever Ohio’s legislature grants the power of eminent domain to a subdivision of the state, that grant must be “strictly construed” and any doubts about the right must be resolved in favor of the property owner.  An entity like a park district has eminent domain authority (also referred to as appropriation or takings) only when the Ohio legislature grants the power in statutory law.  MetroParks relied on Ohio Revised Code 1545.11 as the grant of power to acquire the bikeway land by eminent domain.  That statute states:

The board of park commissioners may acquire lands either within or without the park district for conversion into forest reserves and for the conservation of the natural resources of the state, including streams, lakes, submerged lands, and swamplands, and to those ends may create parks, parkways, forest reservations, and other reservations and afforest, develop, improve, protect, and promote the use of the same in such manner as the board deems conducive to the general welfare. Such lands may be acquired by such board, on behalf of said district, (1) by gift or devise, (2) by purchase for cash, by purchase by installment payments with or without a mortgage, by entering into lease-purchase agreements, by lease with or without option to purchase, or, (3) by appropriation.

The appeals court examined MetroParks’ purpose for acquiring the land for the bikeway to determine if it met either of the authorized purposes in the statute of “conversion into forest reserves” or “conservation of natural resources.”  MetroParks explained that it established its purposes and the necessity of acquiring the bikeway land in two resolutions in 1993 and 2018.  The first resolution stated that the “public interest demanded the construction of a bicycle path” and the second stated that the bikeway “will provide local and regional users with a safe, uniformly-designed, multi-use, off-road trail facility dedicated for public transportation and recreational purposes.”

According to the court, however, both resolutions failed to relate the necessity of the bikeway to the purposes in the statute of acquiring land “for conversion into forest reserves and for the conservation of the natural resources of the state.”  The court noted other Ohio court decisions that do conclude that a bikeway meets the purpose of acquiring land for the “conservation of natural resources” when it “supplies a human need,” “contributes to the health, welfare, and benefit of the community” and is “essential for the well-being of such community and the proper enjoyment of its property.” But important to the landowner is the court’s statement that it disagrees with these principles, “especially when applied to a rural area where it appears the public need is speculative at best and the harm to the private property owners is great."  Reminding us that a statutory grant of eminent domain authority must be strictly construed and interpreted to favor a property owner, the court stated that prior decisions characterizing any project that serves the public and contributes to the health and welfare of the community as “conservation of natural resources” for purposes of R.C. 1545.11 is “a bit of a stretch.”

A second point the court made in questioning whether a bikeway fits within the purposes of park district land acquisition outlined in R.C. 1545.11 is that a law enacted after that statute assigned Ohio’s Department of Natural Resources the duty to plan and develop recreational trails, along with the authority to appropriate land for recreational trails.  The statute suggests that the state agency, not park districts, possesses the authority to use eminent domain to establish recreational trails and bikeways.

Despite its disagreement with the assumption that R.C. 1545.11 permits the acquisition of land for bikeways as the “conservation of natural resources,” the court reviewed the MetroParks resolutions to determine if the park’s purpose constituted the “conservation of natural resources.”  Not surprisingly, the court concluded that the resolutions were completely devoid of any purposes that met the statute’s requirements.  Creating a bikeway through an extensive acreage of family-owned farmland in a rural area does not constitute the purpose of acquiring land for “conservation of natural resources of the state,” the court stated.  Nor does providing recreation automatically equate to the conservation of natural resources.  The resolutions did not “indicate that the creation of this particular trail or bikeway is designed to promote the general health and welfare of the pubic, which we believe requires more than just a recreational purposes” and failed at “even remotely tying the creation of the bikeway to the conservation of natural resources.”

Lacking a required statutory purpose for acquiring the bikeway land, the court concluded that MetroParks abused its discretion in attempting to appropriate the landowner’s property.  The appeals court instructed the Mahoning Court of Common Pleas to grant summary judgment not only in this case, but also for a second bikeway eminent domain case the landowner was a party to with MetroParks.

Now what?

A question now before MetroParks is whether it will ask the Ohio Supreme Court to review the decision of the Seventh District Court of Appeals.  The park district board will meet on May 9 to discuss how it will proceed. 

A continuing problem

The case highlights a recurring issue with the use of eminent domain for bike paths, as this is not the only legal issue MetroParks has faced in its mission to build its bikeway.  Several other court cases have challenged the park’s eminent domain authority, though unsuccessful, and an amendment to last year’s budget bill included specific language that prohibits the use of eminent domain for recreational trails for five years in a county with a population between 220,000 and 240,00 people.  Mahoning County falls within that population range.  Recent attempts by Mahoning County legislators to enact laws that prohibit the use of eminent domain for recreational trails or give local governments the right to veto such actions have not made it through the Ohio General Assembly.  The divisive issue is clearly one that requires a closer look by our legislators.

Read the case of Mill Creek Metro. Dist. Bd. of Commrs. v. Less here.