Ohio Code 4764.21 – Home inspection recovery fund
(A) The home inspection recovery fund is hereby created in the state treasury, to be administered by the superintendent of real estate and professional licensing. Amounts collected by the superintendent as prescribed in this section and interest earned on the assets of the fund shall be ascertained by the superintendent as of the first day of July each year.
Terms Used In Ohio Code 4764.21
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Bankruptcy: Refers to statutes and judicial proceedings involving persons or businesses that cannot pay their debts and seek the assistance of the court in getting a fresh start. Under the protection of the bankruptcy court, debtors may discharge their debts, perhaps by paying a portion of each debt. Bankruptcy judges preside over these proceedings.
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
- Home inspection: means the process by which a home inspector conducts a visual examination of the readily accessible components of a residential building for a client. See Ohio Code 4764.01
- Interest rate: The amount paid by a borrower to a lender in exchange for the use of the lender's money for a certain period of time. Interest is paid on loans or on debt instruments, such as notes or bonds, either at regular intervals or as part of a lump sum payment when the issue matures. Source: OCC
- 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.
- Licensed home inspector: means a person who holds a valid license issued pursuant to section 4764. See Ohio Code 4764.01
- Person: includes an individual, corporation, business trust, estate, trust, partnership, and association. See Ohio Code 1.59
- Recourse: An arrangement in which a bank retains, in form or in substance, any credit risk directly or indirectly associated with an asset it has sold (in accordance with generally accepted accounting principles) that exceeds a pro rata share of the bank's claim on the asset. If a bank has no claim on an asset it has sold, then the retention of any credit risk is recourse. Source: FDIC
- Settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party's claims.
- state: means the state of Ohio. See Ohio Code 1.59
The Ohio home inspector board, in accordance with rules adopted under division (A)(2) of section 4764.05 of the Revised Code, shall impose a special assessment not to exceed five dollars per year for each year of a licensing period on each person applying for a license under section 4764.07 of the Revised Code and on each licensee filing a notice of renewal under section 4764.09 of the Revised Code if the amount available in the fund is less than two hundred and fifty thousand dollars on the first day of July preceding that filing. The board may impose a special assessment not to exceed three dollars per year for each year of a licensing period if the amount available is greater than five hundred thousand dollars, but less than one million dollars on the first day of July preceding that filing. The board shall not impose a special assessment if the amount available in the fund exceeds one million dollars on the first day of July preceding that filing.
(B)(1) Any person who obtains a final judgment in any court of competent jurisdiction against any home inspector licensed under this chapter, on the grounds of conduct that is in violation of this chapter or the rules adopted under it, and that is associated with an act or transaction that only a licensed home inspector is authorized to perform as specified in section 4764.02 of the Revised Code, may file an application, as described in division (B)(3) of this section, in the court of common pleas of Franklin county for an order directing payment out of the home inspection recovery fund of the portion of the judgment that remains unpaid and that represents an actual and direct loss sustained by the applicant.
(2) Punitive damages, attorney’s fees, and interest on a judgment are not recoverable from the fund. The superintendent may allow court costs to be recovered from the fund, and, if the superintendent authorizes the recovery of court costs, the order of the court of common pleas then may direct their payment from the fund.
(3) The applicant shall describe in the application the nature of the act or transaction on which the underlying judgment was based, the activities of the applicant in pursuit of remedies available under law for the collection of judgments, and the actual and direct losses, attorney’s fees, and the court costs sustained or incurred by the applicant. The applicant shall attach to the application a copy of each pleading and order in the underlying court action.
(4) The court shall order the superintendent to make payments out of the fund when the person seeking the order has shown all of the following:
(a) The person has obtained a judgment, as provided in this division;
(b) All appeals from the judgment have been exhausted and the person has given notice to the superintendent, as required by division (C) of this section;
(c) The person is not a spouse of the judgment debtor, or the personal representative of the spouse;
(d) The person has diligently pursued the person’s remedies against all the judgment debtors and all other persons liable to the person in the transaction for which the person seeks recovery from the fund;
(e) The person is applying not more than one year after termination of all proceedings, including appeals, in connection with the judgment.
(5) Divisions (B)(1) to (4) of this section do not apply to any of the following:
(a) Actions arising from home inspections conducted by an unlicensed individual;
(b) A bonding company when it is not a principal in the real estate transaction;
(c) A person in an action for the payment of a fee or other compensation for the performance of an act or transaction specified or comprehended in division (A) or (C) of section 4764.02 of the Revised Code;
(d) Losses incurred by investors in real estate if the applicant and the licensee are principals in the investment.
(C) A person who applies to a court of common pleas for an order directing payment out of the fund shall file notice of the application with the superintendent. The superintendent may defend any action on behalf of the fund and shall have recourse to all appropriate means of defense and review, including examination of witnesses, verification of actual and direct losses, and challenges to the underlying judgment required in division (B)(4)(a) of this section to determine whether the underlying judgment is based on activity only a licensed home inspector is permitted to perform. The superintendent may move the court at any time to dismiss the application when it appears there are no triable issues and the application is without merit. The motion may be supported by affidavit of any person having knowledge of the facts and may be made on the basis that the application, including the judgment referred to in it, does not form the basis for a meritorious recovery claim; provided, that the superintendent shall give written notice to the applicant at least ten days before making the motion. The superintendent may, subject to court approval, compromise a claim based upon the application of an aggrieved party. The superintendent shall not be bound by any prior compromise or stipulation of the judgment debtor.
(D) Notwithstanding any other provision of this section to the contrary, the liability of the fund shall not exceed forty thousand dollars for any one licensee. If a licensee’s license is reactivated as provided in division (E) of this section, the liability of the fund for the licensee under this section shall again be forty thousand dollars, but only for transactions that occur subsequent to the time of reactivation.
If the forty-thousand-dollar liability of the fund is insufficient to pay in full the valid claims of all aggrieved persons by whom claims have been filed against any one licensee, the forty thousand dollars shall be distributed among them in the ratio that their respective claims bear to the aggregate of valid claims or in any other manner as the court finds equitable. Distribution of moneys shall be among the persons entitled to share in it, without regard to the order of priority in which their respective judgments may have been obtained or their claims have been filed. Upon petition of the superintendent, the court may require all claimants and prospective claimants against one licensee to be joined in one action, to the end that the respective rights of all the claimants to the fund may be equitably adjudicated and settled.
(E) If the superintendent pays from the fund any amount in settlement of a claim or toward satisfaction of a judgment against a licensed home inspector, the superintendent may suspend the home inspector’s license. The superintendent shall not reactivate the suspended license of that home inspector until the home inspector has repaid in full, plus interest per annum at the rate specified in division (A) of section 1343.03 of the Revised Code, the amount paid from the fund on the home inspector’s account. A discharge in bankruptcy does not relieve a person from the suspension and requirements for reactivation provided in this section unless the underlying judgment has been included in the discharge and has not been reaffirmed by the debtor.
(F) If, at any time, the money deposited in the fund is insufficient to satisfy any duly authorized claim or portion of a claim, the superintendent shall, when sufficient money has been deposited in the fund, satisfy the unpaid claims or portions, in the order that the claims or portions were originally filed, plus accumulated interest per annum at the rate specified in division (A) of section 1343.03 of the Revised Code.
(G) When, upon the order of the court, the superintendent has paid from the fund any sum to the judgment creditor, the superintendent shall be subrogated to all of the rights of the judgment creditor to the extent of the amount so paid, and the judgment creditor shall assign all the judgment creditor’s right, title, and interest in the judgment to the superintendent to the extent of the amount so paid. Any amount and interest so recovered by the superintendent on the judgment shall be deposited in the fund.
(H) Nothing contained in this section shall limit the authority of the superintendent to take disciplinary action against any licensee under other provisions of this chapter; nor shall the repayment in full of all obligations to the fund by any licensee nullify or modify the effect of any other disciplinary proceeding brought pursuant to this chapter.
(I) The superintendent shall collect from the fund a service fee in an amount equivalent to the interest rate specified in division (A) of section 1343.03 of the Revised Code multiplied by the annual interest earned on the assets of the fund, to defray the expenses incurred in the administration of the fund.