Victoria Plaza Limited Liability,Co. ) Appellant, vs. Cuyahoga County Board of Revision, Cuyahoga County Auditor and the North Olmsted Board of Education, Appellees.
) ) ) CASE NO. 96-B-641 ) ) ) (REAL PROPERTY TAX) ) Affm'd Diff. Reasons ) Remanded 7/28/99 ) DECISION AND ORDER ) ) 86 Ohio St.3d 181, 1999-Ohio-148 )
APPEARANCES: For the Appellant Victoria Limited Liability Co. - Fred Siegel, Esq. Fred Siegel Co., L.P.A. 2700 National City Center 1900 East Ninth Street Cleveland, Ohio 44114-3499 - Timothy J. Armstrong, Esq. Armstrong, Mitchell, Damiani & Zaccagnini 1725 The Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115-1091 - Stephanie Tubbs-Jones Cuyahoga County Prosecuting Attorney Courts Tower, Ninth Floor 1200 Ontario Street Cleveland, Ohio 44113 - Thomas A. Kondzer, Esq. Kolick and Kondzer Suite 175 24500 Center Ridge Road Westlake, Ohio 44145
For Victoria Plaza Limited Partnership
For the County Appellees
For the Appellee North Olmsted Board of Education
Entered:
June 19, 1998
Mr. Johnson and Mr. Manoranjan concur, Ms. Jackson dissenting.
This matter is now before the Board of Tax Appeals as a result of a review of matters presently pending on the Board's docket. A preliminary history of the matter is necessary before proceeding with the jurisdictional issue presented. A review of the statutory transcript ("S.T.") reveals that Victoria Plaza Limited Partnership's ("Seller") general
partner executed a purchase and sale agreement on November 30, 1994 for the subject real property with Victoria Plaza Limited Liability Company ("Buyer"). (S.T., Exh. P.) On March 28, 1995, Seller
(V.P.L.P.) signed a limited warranty deed formally transferring the subject property to Buyer (V.P.L.L.C.). (S.T., Exh. Q.) This deed
was filed with the Cuyahoga County Auditor on March 31, 1995. The record also shows that on March 27, 1995 counsel for Buyer filed a complaint (No. 5717) with the Cuyahoga County Board of Revision ("BOR") for tax year 1994 challenging the valuation of the subject property, (i.e., permanent parcel number 235-27-007). On March 30, 1995, an agent for Seller also filed a complaint (No. 10035) with the BOR for tax year 1994 regarding permanent parcel number 235-27-007. On May 26, 1995, the North Olmsted Board of Education ("BOE") filed counter-complaints with the BOR relating to Seller's and Buyer's aforementioned complaints (Nos. 11593 and 11594,
respectively).
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On
February
27,
1996,
the
BOR
conducted
evidentiary
hearings pursuant to said complaints and counter-complaints and held in one decision as follows: "Parcel #235-27-007 Complaint #5717
"Being complaint of Victoria Plaza Limited Liability Co. (Assignee G.M.S. Realty Co.) Buyer/Victoria Plaza Limited Partnership Seller and for the tax year 1994 for property cited as being listed in the same name and located on 26101 Country Club Blvd. in North Olmsted, Ohio. "Section 5715.19(A) (2) of the Ohio Revised Code mandates that no person, board, or officer shall file a complaint against the valuation of any parcel if it filed a complaint against the evaluation of that parcel for any prior tax year in the same interim period, absent certain conditions occurring. "Complainant filed a valid complaint for the tax year 1994. Therefore, subject complaint is dismissed for lack of jurisdiction. "Parcel #235-27-007 Complaint #11594
"Being complaint of the North Olmsted Board of Education for the tax year 1994. "Subject complaint was dismissed by the Board of Revision. Complaint was filed in duplicate of Complaint #11593 (1994).
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"Parcel #235-27-007
Complaint #10035 and 11593
"Being complaint of Victoria Plaza Limited Partnership for the tax year 1994 for property cited as being listed in the same name and located on 26101 Country Club Blvd. in North Olmsted. "Current Taxable Value $3,713,190 "Taxable Value Claimed $2,546,250 "Decrease Asked $1,166,940 "Being complaint of the North Olmsted Board of Education for the tax year 1994. "Taxable Value Claimed $3,754,800 "Increase Asked $41,610 "These complaints have been consolidated for the purpose of this hearing. "Appearance: Timothy Armstrong, Attorney for Seller Ray Slepski, Tax Consultant for Seller Fred Siegel, Attorney for Buyer Dan Siegel, Attorney for Buyer Sam Canitia, Appraiser for the North Olmsted Board of Education Rita Jarrett, Attorney for the North Olmsted Board of Education
"Submitted for the Taxpayer: Copy of sale agreement and conveyance form, owner's description and opinion of value, limited warranty deed, part of Richard Racek's appraisal report of subject as of 7/11/94 with 3 approaches to value, cost sales comparison and income. "Submitted for the Board of Education: Appraisal with economic and market approaches.
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"Description: a 19-story masonry apartment building of +330,163 sf plus a +55,968 sf parking garage. Constructed in 1971 on a +5.06 parcel of land - 298 suites and 150 car parking in garage. "Upon consideration of the complaints and after investigation, research, examination of testimony and evidence submitted in accordance with the law, the Board of Revision found the taxable value of the subject property to be $2,441,950 involving a building reduction of $1,271,240 for the tax year 1994." (S.T., Exhibit S.)
Manifestly, the BOR dismissed the complaint (No. 5717) filed by Buyer for the stated reason that said complaint violated the terms of R.C. 5715.19(A) which prohibit the filing of a
subsequent complaint within the same interim period, absent certain conditions. The corresponding counter-complaint (No. 11594) was
also dismissed. Addressing the complaint filed by Seller (No. 10035) as well as the counter-complaint filed in response thereto (No.
11593), the BOR reduced the auditor's value. On June 13, 1996, Buyer filed two notices of appeal with the Board of Tax Appeals ("BTA") challenging the BOR's decisions in complaint Nos. 10035 and 5717. B-641, respectively.) On June 18, 1996, Seller filed two notices of appeal with the BTA from the BOR's decision reducing the Auditor's values relative to Complaint Nos. 5717 and 10035. 662 with which we are herein (B.T.A. Case Nos. 96-Band 96-B-663, (B.T.A. Case Nos. 96-B-640 and 96-
concerned
respectively.) 5
On June 19, 1996, the BOE filed three notices of appeal with the BTA. The first is from the BOR's valuation decision in The
complaint No. 10035 and was assigned B.T.A. Case No. 96-B-659. second is from the BOR's decision in corresponding
counterThe third counter-
complaint No. 11593 and is B.T.A. Case No. 96-B-660. appeal is taken from the BOR's decision dismissing
complaint No. 11594 and is B.T.A. Case No. 96-B-661. On October 10, 1997, the BTA, pursuant to Sharon Village Ltd. v. Licking Cty. Bd. of Revision found that the BOR was without (1997), 78 Ohio St.3d 479, to consider the
jurisdiction
Seller's complaint (No. 10035) because it was filed and signed by a non-attorney agent and ordered the BOR to dismiss the decrease complaint filed by a non-attorney and to reinstate the values originally assigned by the Cuyahoga County Auditor. Plaza Limited Partnerhip v. Cuyahoga County Bd. See, Victoria of Revision
(October 10, 1997), B.T.A. Case No. 96-B-663, unreported. As stated above, this appeal is taken from the decision of the BOR whereby that board dismissed Buyer's complaint No. 5717, as outlined above. R.C. 5715.13 specifies who has standing to file a
decrease complaint, and states, in pertinent part: "The county board of revision shall not decrease any valuation complained of unless the party affected thereby or his agent makes and filed with the board a written application therefor, verified by oath, showing the facts upon which it is claimed such decrease should be made."
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R.C. 5715.19 provides for the filing of a complaint, as follows: "Any person owning taxable real property in the county or in a taxing district with territory in the county, the board of county commissioners, the prosecuting attorney or treasurer of the county, the board of township trustees of any township with territory within the county, the board of education of any school district with any territory in the county, or the mayor or legislative authority of any municipal corporation with any territory in the county may file such a complaint regarding any such determination effecting any real property in the county that is located in the same taxing district as that person's real property is located. The county auditor shall present to the county board of revision all complaints filed with him."
Buyer filed Complaint No. 5717 on March 27, 1995.
On
March 28, 1995, Seller signed a limited warranty deed transferring the subject property to Buyer - one day after Buyer's filing of its complaint with the BOR. In their briefs, filed herein, BOE and
county appellees urge that this Board find that Buyer was not an "owner" as provided for in R.C. 5715.19 because the limited
warranty deed was not signed by Seller at the time Buyer filed its complaint with the BOR. We disagree. In the present case, the purchase contract Presumably there were various
was executed on November 30, 1994.
conditions precedent to be satisfied by the parties, before closing and delivery of the deed in complete performance of the purchase contract. equitable Upon signing the purchase contract, however, there is an conversion whereby 7 the buyer acquires an ownership
interest in the real property.
See, 80 Ohio Jurisprudence 3d
(1988) 130, Title and ownership, generally, Section 95, wherein it states: "A vendor who has not conveyed legal title retains all rights incidental to legal title except insofar as he has parted with them by the terms of the contract. In equity, however, an enforceable absolute contract to sell real property produces a conversion at the time the contract is made. Although the contract is executory, equity regards the exchange as having taken place, and the vendor's property to consist, not of real estate, but of personalty. Moreover, although the contract has not been executed by a deed, equity considers the property of the purchaser to consist of real estate " . (Emphasis added.)
Although legal title to the property was not conveyed to Buyer until March 28, 1995, we find that Buyer had sufficient
ownership interest in the subject property for purposes of R.C. 5715.13 and R.C. 5715.19, and therefore had standing to file
Complaint No. 5717. Moreover, case law supports our finding that the In
appellant owned the property when the complaint was filed. Gastineau v.
Kinney (April 1982), Clark App. No. 1640, unreported,
the Court held that the YMCA, which had purchased the property under a land contract, had equitable title sufficient to apply for exemption with the following language: "Here, the YMCA had all of the benefits and burdens of ownership, and where there is an absolute contract to sell realty, though the contract is executory, the exchange is treated 8
in equity as having actually taken place, thus vesting ownership of the real estate in the purchaser."
See also, Beth Hamidrosh Hagodol v. Kinney (1984), 16 Ohio App. 3d 89, wherein the Court citing Gastinea, supra, stated: "In the present case, equitable title passed to the appellant by virtue of the binding contract for purchase and sale between it and the Masonic Lodge."
And finally, in Rex R. Overstreet v. Board of Revision of Hamilton County, et al. (May 31, 1996), B.T.A. No. 95-N-1265, unreported, this Board determined that the purchaser of a property under a land contract, where title had not yet been conveyed by deed, is an equitable owner of the property. We further stated,
"[i]f a buyer on a land contract may apply for agricultural land valuation on a parcel of property, and appeal to this Board on that same parcel of property, it seems reasonable to conclude he may be able to file a complaint at the BOR on that same parcel." (See
Gail Schultz v. Cuyahoga County Board of Revision, et al. (April 3, 1998), B.T.A. Case No. 97-G-702, unreported. It is therefore the conclusion of this Board that the decision of the BOR that it lacked jurisdiction to hear appellant's complaint (No. 5717) was erroneous, and is hereby reversed. This
matter is remanded to the Cuyahoga County Board of Revision for a determination of value in accordance with this Decision and Order.
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