Ohio Code 3752.11 – Duties of holder of first mortgage upon abandonment of facility by owner
(A) As used in this section:
Terms Used In Ohio Code 3752.11
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Facility: means all buildings, equipment, structures, and other stationary items that are located on a single site or on contiguous or adjacent sites and that are owned or operated by the same person. See Ohio Code 3752.01
- in writing: includes any representation of words, letters, symbols, or figures; this provision does not affect any law relating to signatures. See Ohio Code 1.59
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
- Mortgage loan: A loan made by a lender to a borrower for the financing of real property. Source: OCC
- Mortgagee: The person to whom property is mortgaged and who has loaned the money.
- Mortgagor: The person who pledges property to a creditor as collateral for a loan and who receives the money.
- Operator: means the person responsible for the overall operation of a reporting facility. See Ohio Code 3752.01
- Outdoor location of operation: means an outdoor location at a reporting facility upon which is situated any stationary tank, vat, electrical transformer, vessel, piping, or nonstationary container that contains a regulated substance or upon which is situated any motor vehicle or rolling stock that is used for the storage or other handling of a regulated substance and that contains a regulated substance in a quantity or manner other than that necessary for the operation of the motor vehicle or rolling stock in transporting cargo. See Ohio Code 3752.01
- Owner: means the person who owns a reporting facility or part of a reporting facility. See Ohio Code 3752.01
- Person: includes an individual, corporation, business trust, estate, trust, partnership, and association. See Ohio Code 1.59
- Property: means real and personal property. See Ohio Code 1.59
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- Regulated operations: means the production, use, storage, or other handling of regulated substances. See Ohio Code 3752.01
- Regulated substances: includes extremely hazardous substances, hazardous substances, flammable substances, and petroleum. See Ohio Code 3752.01
- Reporting facility: means a facility where regulated operations occur in connection with which the owner or operator of the facility is required to submit a list of hazardous chemicals or one or more material safety data sheets under section 3750. See Ohio Code 3752.01
- state: means the state of Ohio. See Ohio Code 1.59
- Undertaking: includes a bond. See Ohio Code 1.02
(1) “Reporting facility” means a reporting facility at which all regulated operations have been temporarily or permanently discontinued.
(2) “Abandoned by the owner” means either of the following that occurs on or after July 1, 1996:
(a) All of the fee owners of a reporting facility have indicated affirmatively in writing to the holder of the first mortgage on the real property at the facility that they, and all tenants claiming possession under those owners, have abandoned all rights of possession to the reporting facility;
(b) The first mortgage loan on the real property at the reporting facility is in default, the property is not occupied by any tenants, and the holder of the first mortgage has been unable to contact the mortgagor under the mortgage regarding the default within the earlier of ninety days after the default or sixty days after the first time the first mortgage holder has attempted unsuccessfully to contact the mortgagor following the default if the first mortgage holder is unable to contact the mortgagor within the sixty-day period.
(3) “Default” means the failure of the mortgagor to make any payment to the holder of the first mortgage required by the terms of the mortgage documents that is not cured by the mortgagor within any applicable cure periods, deferred with the consent of the holder of the first mortgage, or waived by the holder of the first mortgage.
(4) “Contact” means actual person to person, telephonic, or similar direct voice conversation between the holder of the first mortgage and the mortgagor or written correspondence from the mortgagor to the holder of the first mortgage by mail, any other method capable of documenting the intended recipient’s receipt of the document or notice, or similar means of communication.
(B) Not later than fifteen days after a reporting facility has been abandoned by the owner, the holder of the first mortgage on real property at the reporting facility shall do both of the following:
(1) Secure against unauthorized entry each building or structure at the facility where regulated operations were conducted and that contains or is contaminated with regulated substances and each outdoor location of operation. The holder shall secure each such building, structure, or outdoor location of operation by boarding windows, doors, and other potential means of entry, by providing security personnel, or by other methods prescribed in rules adopted under section 3752.03 of the Revised Code. Within that period, the holder also shall post about each such building, structure, or outdoor location of operation in publicly visible locations warning signs that prohibit trespassing and state that the building, structure, or outdoor location of operation contains or is contaminated with regulated substances that may endanger public health or safety if released into the environment. The holder shall continue the security measures, and maintain the warning signs, as required at each such building, structure, or outdoor location of operation until title to the facility has been transferred or until the holder files a release of the mortgage with the county recorder of the county in which the facility is located. Promptly after discovering that any of the entry barriers or warning signs installed pursuant to division (B)(1) of this section have been damaged, lost, or removed, the holder shall repair or replace them in order to maintain the security of the building, structure, or outdoor location of operation.
(2) Submit to the director of environmental protection, the local emergency planning committee of the emergency planning district in which the facility is located, and the fire department having jurisdiction where the facility is located a notice of the abandonment of the facility by the owner and of the holder’s compliance with division (B)(1) of this section. The holder shall submit the notice on a form prescribed by the director.
(C) Within thirty days before the date when the holder of a mortgage will cease to maintain security and warning signs at a reporting facility pursuant to the filing of a release of the mortgage as provided in division (B)(1) of this section, the holder shall so notify the director, the local emergency planning committee of the emergency planning district in which the facility is located, and the fire department having jurisdiction where the facility is located. The holder shall submit the notice on a form prescribed by the director.
(D) Actions undertaken by a holder of a mortgage under division (B) of this section, and the undertaking of any other activities relating to protecting and securing the facility, do not cause the holder to be an owner, operator, or mortgagee in possession of the facility or subject the holder to this chapter or any other provision of state law imposing liability or responsibility for the cleanup, removal, or remediation of regulated substances, provided that all activities not specified in that division shall be performed in compliance with the applicable requirements of Chapters 3704., 3714., 3734., 3737., 3750., 3751., 6109., and 6111. of the Revised Code and rules adopted under them.
(E) The holder of a mortgage who proceeds in good faith under divisions (B) and (C) of this section is not liable to the owner of the facility or the mortgagor, as appropriate, for damages suffered by the owner or mortgagor due to actions taken by the holder under those divisions.
(F) Nothing in this section prevents the holder of a first mortgage from applying to the court for the appointment of a receiver. If a receiver is appointed, the receiver shall succeed to the obligations of the holder of the first mortgage under divisions (B) and (C) of this section.
(G) No person shall fail to comply with this section.
Last updated September 13, 2023 at 9:03 AM