The law in each state, as it must under constitutional law, provides for a procedure to challenge and, as appropriate, reduce valuations and taxes.  FSSP has organized a tax reduction group consisting of Chris Finney, Paul Saba, Bill Patterson and Pat Veith to evaluate and bring these challenges.  They have conducted more than 100 seminars, successfully argued cases in more than 30 counties, and developed valuable relationships with government valuators and private appraisers.  All of this has contributed to FSSP’s successes in this practice area.

For a free preliminary evaluation of savings on your commercial or residential property, please contact Emily Rudd at 513-533-2987 or erudd@fssp-law.com

http://www.ohio.com/news/92016874.html

The subject property was sold in an arms-length transaction in December 2003 for $4.79 million, and again in an arms-length transaction in April 2004 for $7.4 million.  The increased value in the latter sale was attributable to a long-term lease signed by US Bank in December 2003–before the January 1, 2004 tax-lien date, but after the purchase price for the December 2003 sale was agreed upon.  The BTA determined that the the December 2003 sale price was closer in time to the tax-lien date, and therefore more accurately reflected the value of the parcel, even though that sale price did not account for the value of the US Bank lease.

The Supreme Court agreed, holding that that R.C. 5317.03 mandates the use of the price closest in time to the tax-lien date as the true value of the parcel:

In determining the true value of any tract, lot, or parcel of real estate under this section, if such tract, lot, or parcel has been the subject of an arm’s length sale between a willing seller and a willing buyer within a reasonable length of time, either before or after the tax lien date, the auditor shall consider the sale price of such tract, lot, or parcel to be the true value for taxation purposes.

The provision, however is subject to two exceptions–the sale price shall not be considered the true value if the parcel “loses value due to some casualty,” or if “[a]n improvement is added to the property.”  The Court does not address whether the US Bank lease should be considered an “improvement,” and if not, why not.

The Court also held that for purposes of R.C. 5713.03, the date of a sale is determined by the date on which the real property conveyance fee statement is filed in the auditor’s office.

The majority rejected the property owners’ claim that the statute was tolled due to a continuing violation; rather than a continuing violation, the Court characterized the repeated use of the trail by the park board and the public as “the present effect of past violations” and explained that “a continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation.”  And the Court held that it was just one event — the construction of the trail — which constituted the violation in this case.

In dissent, Justice Pfeiffer argues that repeated entrance onto the property of the relators constituted repeated or continuing violations of their constitutional property rights.  He likens it to a continuing trespass or nuisance, in which the statute of limitations is tolled, and he rejected the argument that a tolling rule would render the statute of limitations meaningless–it would still apply, for example, to temporary takings or true single-event takings, such as the installation of a utility line for which no repeated access is necessary.

The language of the statute at issue here does appear to favor the majority — R.C. 2305.09 provides that an action “[f]or relief on the grounds of a physical or regulatory taking of real property” “shall be brought within four years after the cause of action accrued.”  But refusing to recognize a tolling rule also seems to run afoul of Section 19, Article I of the Ohio Constitution, which provides in part that “Private property shall ever be held inviolate . . . .”  And it seems to me that even if the four years expired based on the initial installation of the trail, the subsequent installation of benches, parking areas, and so on would be new violations which would not rely on a tolling rule at all.

Almost as a side note, the Court observed in reference to prior litigation on similar issues that “[u]nlike other judgments . . . a declaratory judgment determines only what it actually decides and does not preclude other claims that might have been advanced.”  Is this authorization from the Supreme Court to use a dec action to circumvent the normal rules of res judicata?  It may be.

All in all, an unusual decision from the Court, and one which is not especially friendly to property rights.

The case is State ex rel. Nickoli v. Erie MetroParks, 2010-Ohio-606 [PDF].

In State ex rel. McKay v. Kauer, the Ohio Supreme Court held that lowering the grade of a road to the extent that it unreasonably hinders access is a taking, and if the government so lowers the road then it must institute appropriation proceedings to compensate the landowner.  In State ex rel. OTR v. City of Columbus, the Ohio Supreme Court made a complementary holding as to raising the road level.  And in State ex rel. Hilltop Basic Resources v. Cincinnati, the Court explained that these rights are equally protected for both developed and undeveloped land and developed and undeveloped rights of access.  “Instead,” the Court wrote, “the applicable test is whether the governmental action substantially or unreasonably intefered with the landowner’s right of access to the public street or highway on which the land abuts.”

Has access to your property be hindered or made more difficult due to the raising or lowering of the street grade?

I’m not familiar with European law on this subject, but in the United States, section 43(a) of the Lanham Act (15 U.S.C. 1125(a)) would control.  That section creates civil liability for

[a]ny person who . . . uses in commerce any word, term, name, symbol, or device . . . which . . . is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person . . . .

Under this “likelihood of confusion” test, a person commits trademark infringement whenever a mark is used in a manner which causes confusion as to the source of the goods, services, or commercial activities.  This would seem like a pretty clear-cut case for Portakabin against Primakabin — by purchasing the keyword from Google, Primakabin had users searching for Portakabin’s trademark directed to Primakabin.  That’s likely to cause confusion about the source of goods for the consumer who arrives at the Primakabin web site.  (Note that the test is not whether a user is likely to be confused by the web site.  The test is whether the consumer is likely to think that the goods, services, or commercial activities come from one source when they actually come from another.  Which is to say, there is a likelihood of confusion — indeed actual confusion — in the trademark sense if a consumer never even knows that he has arrived at Primakabin’s web site, and think he’s getting something from Portakabin the entire time.)

Perhaps the more interesting question would be whether Google has any liability under US law.  The Lanham Act does not expressly provide for contributory trademark infringement, but occasionally plaintiffs do succeed on such a theory.  Earlier this year, a California jury hit two web sites with a verdict of $32 million for contributing to the infringement of Louis Vuitton’s trademarks.  (In Europe, several cases of contributory infringement against eBay have been widely publicized.) 

Also interesting is what this question does to the AdWords business model.  Google sells advertising space on its search result pages which is customized to the searched-for keywords.  If nobody can purchase a trademarked keyword, Google stands to lose any revenue it otherwise could have obtained from the sale.  (That is, if only the holder of the mark can purchase it, the purchase price will be low or zero.)

The case is McCumbers v. Puckett, 2009-Ohio-4465 [PDF].