[Cite as Harding v. Ohio Real Estate Comm., 2023-Ohio-3138.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Angela Harding Court of Appeals No. L-23-1010
Appellant Trial Court No. CI0202203138
v.
Ohio Real Estate Commission DECISION AND JUDGMENT
Appellee Decided: September 1, 2023
*****
David L. Petitjean, for appellant
David Yost, Ohio Attorney General and Elizabeth S. Fligner, Senior Assistant Attorney General, for appellant.
***** MAYLE, J.
{¶ 1} Appellant, Angela F. Harding, appeals from a judgment of the Lucas County
Court of Common Pleas affirming an adjudication order by appellee, the Ohio Real
Estate Commission (“OREC”), that found Harding violated Chapter 4735 of the Ohio
Revised Code. We affirm. I. Background
{¶ 2} Harding holds a real estate broker’s license with the Ohio Department of
Commerce, Division of Real Estate and Professional Licensing (“the Division”).
{¶ 3} In October of 2013, Harding entered into a land contract with Breck
Properties Ltd. for the purchase of property located at 5012 Maryhill Road in Sylvania,
Ohio. Kathryn Long is the sole shareholder of Breck Properties. The property was
intended to serve as Harding’s primary residence.
{¶ 4} The purchase price of the property was $113,900, and Harding paid Long an
initial down payment of $7,500. Under the terms of the land contract, Harding was
required to pay the balance of $106,400 at seven percent interest over 30 years, through a
monthly payment of $707.88. Upon payment in full of all sums owed, Long, acting on
behalf of Breck Properties, agreed to deliver to Harding “a good and sufficient warranty
deed conveying title to the land.”
{¶ 5} On November 7, 2016, Long filed a complaint against Harding with the
Division. Long alleged that Harding had listed the property for sale without her consent,
in violation of real estate licensing laws and the land contract.
{¶ 6} Following an investigation, the Division sent Harding a notification that it
had found “reasonable and substantial evidence of acts” in violation of R.C. 4735.18
(“Grounds for suspension or revocation of license”) and that, if the violations were
proven, disciplinary action could be taken against Harding’s license. Specifically, the
complaint alleged that,
2. You, Angela Faye Harding, a licensed principal real estate broker *
* * did the following sometime between on or about June 26, 2016 and on
or about July 11, 2016, involving the property at 5012 Maryhill Road,
Sylvania, Ohio (subject property):
Despite entering into a land contract for the subject property, dated
October 25, 2013 (land contract), as a buyer, which specifically prohibited
the transfer of your interest in the land contract to another party without
prior written consent by Breck Properties, Ltd. (seller), you attempted to
sell the subject property with a sign in the subject property’s yard or
through an advertisement in the multiple listing service with [listing agent]
* * *, without prior written consent of the seller. This conduct constitutes a
violation of Ohio Revised Code Section 4735.18(A)(17) or Ohio Revised
Code Section 4735.18(A)(6), misconduct as that section incorporates
Section, Article I of the Canons of Ethics for the Real Estate Industry, a
failure to maintain high standards of conduct in a licensee’s personal
affairs.
{¶ 7} A hearing was held before a hearing examiner on July 30, 2021. Three
witnesses testified: Investigator George Burton, Long, and Harding.
{¶ 8} According to Long, Harding asked her, in June of 2016, if she (Harding)
could “list the property and sell it.” When asked what she would do with any profits
from the sale, Harding said that she would pay off the remaining balance owed to Long
3. and “keep” the rest. Long told Harding that she could “[a]bsolutely not” list the property
because “[i]t wasn’t hers to sell.”
{¶ 9} The conversation caused Long to “wonder * * * what [Harding] was up to.”
And so, about a week later, in July, “[Long] drove past the house” and saw a real estate
sign in the yard. Long’s testimony on this point conflicted with her previous claim,
made in her “Real Estate Complaint Form,” in which she specified that she “looked up
[the] property on line and found [that Harding had] listed it.” According to the
complaint, Long “sent [her] husband to the property to verify if there was a sign in the
yard and he took a picture.” (Emphasis added.)
{¶ 10} In any event, the listing agent identified on the yard sign was Sarah Ford of
Key Realty. Long went “directly to the real estate agen[cy]” and told someone there, “I
own [the property] myself.” Long was told that Harding had taken the property “off the
market as of June 29th,” notwithstanding that the sign remained in the yard. Long
demanded that the agency “get that sign out of my yard” and gave them “til noon.” Later
that day, a broker with Key Realty called Long to apologize and reported that “they were
duped as well.”
{¶ 11} During Harding’s testimony, she denied having a conversation with Long,
or asking for permission from her to list the property. Harding testified that, before
listing it, she consulted with her attorney, who explained that she had an “equitable
interest” in the property and “because [she] had an equitable interest,” she did not need
Long’s permission to list it. Harding also understood that her right to “transfer interest”
4. in the property to a third party was subject to Long being “paid off [first] * * * which
would be done at closing.” Before listing the property, Key Realty “review[ed] all the
documentation.”
{¶ 12} The listing with Key was in effect from June 28, 2016 until July 11, 2016,
when Harding “pull[ed] the listing.” Harding explained that she pulled the listing
because it was “an overwhelming time” in her life. “Shortly after” that, Harding learned
from Key Realty that Long had complained about the sign, but Long never personally
contacted her to discuss it. Harding testified that she believes she “acted with full ethics
from the beginning of this transaction to the end, including [when she] list[ed] the
property.”
{¶ 13} Harding and her husband decided to terminate the land contract and return
the property to Long. On November 2, 2016, the parties executed a “Cancelation of Land
Contract” and a mutual release. Five days later, on November 7, 2016, Long filed a
complaint against Harding, giving rise to the instant case.
II. The Report and Recommendation of the Hearing Officer
{¶ 14} The hearing examiner issued a Report and Recommendation on October
13, 2021, which included the following findings of fact and conclusions of law:
Both Harding and Long had an ownership interest in the property,
Harding as “equitable owner” and Long as “legal owner.”
5. Harding entered into a listing agreement with Realtor Sarah Ford, of
Key Realty, to sell the Maryhill property, and a “for sale” sign was placed
on the property. The listing date was June 28, 2016.
Harding, as an equitable owner, did not transfer any interest or title in
the subject property by entering into the listing agreement with Key Realty.
The listing agreement gave no equitable interest in the land contract or the
property. “The act of entering into [the Exclusive Right to Sell Listing]
Agreement to list the property for sale was within the ownership rights of
[Harding].”
Harding was represented by legal counsel “at all stages during this
process and received legal advice regarding her equitable interest.” Based
upon her attorney’s advice, Harding believed that she “was able to list and
attempt to sell” the property to satisfy the amount owed under the land
contract.
Long, whose “credibility [was] questionable,” withheld her consent
for the sale of the property, “at least in part” because Harding “would be
able to keep the excess profits” if the property was sold.
Harding, “whose testimony was credible, was represented by an
attorney and decided to sell the property to satisfy the balloon payments she
owed to complete the land contract.”
6. “Based on the facts of this case and the rights of both parties under
the Land Contract, the State has provided no evidence that [Harding]
engaged in dishonest or illegal dealings gross negligence, or incompetency”
as require to establish a violation under R.C. 4735.18(A)(6).
Additionally, Harding, as equitable owner, had “actual control of the
subject property” and was “within her rights to place a ‘For Sale’ sign in the
yard of the subject property and list the property in the MLS database. As
such, Respondent did not violate [R.C.] 4735.18(A)(17) when she did not
received [sic] written consent by [Long].”
The hearing examiner’s report includes the following
“Recommendation:”
[T]he state failed to provided sufficient, reliable, and probative
evidence that Ms. Harding was guilty of the alleged violations of Ohio law.
Ms. Harding (1) had equitable ownership rights under the Land Contract,
which included a right to list the subject property for sale and to enter into
an Exclusive Right to Sell Listing Agreement; and (2) did not transfer any of
her interest or title in the subject property without the written consent of
[Long]. Furthermore, if the Land Contract were completed and a transfer of
the legal title had to occur, the requirement for written consent for [Harding]
to transfer the legal title to the subject property would have no longer
existed. It is, therefore, recommended to [OREC] that Ms. Harding is found
7. not guilty of violating [R.C. 4735.18(A)(17) and (A)(6)], which incorporates
Article I, Section I of the Canons of Ethics for the Real Estate Industry.
{¶ 15} The hearing examiner’s report went before OREC for a review hearing on
July 6, 2022. The hearing was limited to arguments made by the parties’ respective
counsel. No additional evidence or testimony was presented.
{¶ 16} By Adjudication Order dated July 13, 2022, OREC adopted the hearing
officer’s findings of fact but rejected her conclusions of law, “specifically [with respect to
R.C.] 4735.18(A)(17).” It imposed a penalty of $500 and ordered Harding to complete
three hours of additional education. OREC made no mention, or any finding, with
respect to Harding’s alleged violation of R.C. 4735.18(A)(6).
{¶ 17} Harding appealed to the Lucas County Court of Common Pleas, pursuant to
R.C. 119.12. Upon review of the record, the trial court found that the OREC ’s
Adjudication Order, as to the R.C. 4735.18(A)(17) violation, was “supported by reliable,
probative, and substantial evidence and [was] in accordance with the law.”
{¶ 18} Harding appealed and raises four assignments of error for our review:
1. The Trial Court Decision Does Not Provide A Legal Basis
Establishing That The OREC’s Adjudication Order Was In Accordance
with Ohio Law.
2. The Trial Court’s Decision And The OREC’s Adjudication Order
Are Contrary To Ohio Law.
8. 3. The Trial Court’s Decision and The OREC’s Adjudication Order
Provide No Legal Basis for the Decisions.
4. The Trial Court’s Decision Affirming the OREC’s Adjudication
Order Creates A New Standard for Licensed Real Estate Brokers And The
OREC Has Not Provided Licensed Real Estate Brokers With Any Prior
Notice of This New Standard And Violated Plaintiff-Appellant’s Right to
Due Process.
III. Standard of Review
{¶ 19} The standard of review in an administrative appeal under R.C. 119.12 is
“well-established.” Bartchy v. State Bd. of Edn., 120 Ohio St.3d 205, 2008-Ohio-4826,
897 N.E.2d 1096, ¶ 34.
{¶ 20} R.C. 119.12(M) sets forth the standard of review employed by the common
pleas court. It provides,
The court may affirm the order of the agency complained of in the
appeal if it finds, upon consideration of the entire record and any additional
evidence the court has admitted, that the order is supported by reliable,
probative, and substantial evidence and is in accordance with law. In the
absence of this finding, it may reverse, vacate, or modify the order or make
such other ruling as is supported by reliable, probative, and substantial
evidence and is in accordance with law.
9. {¶ 21} As explained by the Ohio Supreme Court in Bartchy, the common pleas
court conducts two inquiries: a hybrid factual/legal inquiry and a purely legal inquiry:
As to the first inquiry, * * * [a]n agency’s findings of fact are
presumed to be correct and must be deferred to by a reviewing court unless
that court determines that the agency’s findings are internally inconsistent,
impeached by evidence of a prior inconsistent statement, rest upon
improper inferences, or are otherwise unsupportable. * * *
As to the second, legal part of the common pleas court’s inquiry, an
agency adjudication is like a trial, and while the reviewing court must defer
to the lower tribunal’s findings of fact, it must construe the law on its own.
(Quotation omitted.)
Id. at ¶ 37–38, citing Ohio Historical Soc. v. State Emp. Relations Bd., 66 Ohio
St.3d 466, 470–471, 613 N.E.2d 591 (1993).
{¶ 22} An appellate court’s role is more limited. Under R.C. 119.12(N),
[E]ither * * * the party or the agency may appeal. * * * An appeal by
the agency shall be taken on questions of law relating to the
constitutionality, construction, or interpretation of statutes and rules of the
agency, and, in the appeal, the court may also review and determine the
correctness of the judgment of the court of common pleas that the order of
the agency is not supported by any reliable, probative, and substantial
evidence in the entire record.
10. While the trial court examines the evidence, the appellate court is “to determine only if
the trial court has abused its discretion in its examination of the record for reliable,
probative, and substantial evidence.” Bartchy at ¶ 41. “On review of purely legal
questions, however, an appellate court has de novo review.” Dep’t of Youth Servs. v.
Grimsley, 10th Dist. Franklin No. 18AP-546, 2019-Ohio-888, ¶ 10. Indeed, in our
constitutional system, it is exclusively “the province and duty of the judicial department
to say what the law is.” TWISM Enterprises, L.L.C. v. State Bd. of Registration for Pro.
Engineers & Surveyors, Slip Opinion 2022-Ohio-4677, ¶ 42, quoting Marbury v.
Madison, 5 U.S. 137, 177, 2 L.Ed. 60 (1803) (“[I]t is never mandatory for a court to defer
to the judgment of an administrative agency.”).
IV. OREC’s adjudication order provided sufficient reasons in support of its decision under R.C. 119.09, and therefore, the common pleas court did not err in affirming it.
{¶ 23} We consider Harding’s first and third assignments of error together. In the
first, Harding claims that the trial court and OREC both failed to “provide a legal
analysis” to support a finding that Harding violated R.C. 4735.18(A)(17). In her third
assignment of error, Harding again complains that the tribunals “provide[d] no legal
analysis.” More specifically, Harding alleges that OREC failed to “include in the record
of its proceedings the reasons for [its] modification or disapproval” of the hearing
examiner’s determination, as required by R.C. 119.09, and that the trial court erred by
affirming OREC’s decision for this reason. We disagree.
{¶ 24} R.C. 119.09 (“Adjudication hearing”) provides, in relevant part,
11. In any adjudication hearing required by sections 119.01 to 119.13 of
the Revised Code, the agency may appoint a referee or examiner to conduct
the hearing. * * * The referee or examiner shall submit to the agency a
written report setting forth the referee’s or examiner’s findings of fact and
conclusions of law and a recommendation of the action to be taken by the
agency. * * * The recommendation of the referee or examiner may be
approved, modified, or disapproved by the agency, and the order of the
agency based on such report, recommendation, transcript of testimony and
evidence, or objections of the parties, and additional testimony and
evidence shall have the same effect as if such hearing had been conducted
by the agency. * * * [I]f the agency modifies or disapproves the
recommendations of the referee or examiner it shall include in the record of
its proceedings the reasons for such modification or disapproval.
(Emphasis added.)
{¶ 25} Here, the hearing officer concluded that Harding did not violate R.C.
4735.18(A)(17)—which prohibits offering any property for sale “without the consent of
the owner”—because Harding “was an equitable owner.” OREC “reject[ed] the
Conclusions of Law of the hearing examiner,” finding instead that Harding “violated her
duties * * * as a real estate licensee, specifically [R.C.] 4735.18(A)(17).” On appeal,
Harding complains that OREC failed to provide any “reasons” for that decision, in
violation of R.C. 119.09.
12. {¶ 26} R.C. 119.09’s “requirement”—that a board provide reasons when
modifying or disapproving a hearing examiner’s recommendation—is “mandatory.”
Bennett v. State Medical Board of Ohio, 10th Dist. Franklin No. 10AP-833, 2011-Ohio-
3158, ¶ 16. And, where a board fails to do so, the resulting order “is not in accordance
with [the] law and must be overturned on that basis. (Quotation omitted.) Lucas v. Ohio
State Bd. of Educ., 10th Dist. Franklin No. 19AP-463, 2020-Ohio-2738, ¶ 31 (Finding an
order—that failed to identify “specific grounds” for the board’s disapproval of the
hearing officer’s recommendation—did not meet the “minimal threshold for satisfying
the R.C. 119.09 requirement.”); see also Zingale v. Ohio Casino Control Comm., 8th
Dist. Cuyahoga No. 101381, 2014-Ohio-4937, ¶ 66. However, it has also been held that
the “‘barest of explanations’ [will] suffice to satisfy the requirements of R.C. 119.09.”
Snyder v. Ohio Real Estate Appraiser Board, 5th Dist. Tuscarawas No. 2016AP0058,
2017-Ohio-5790, ¶ 37, quoting Matter of Euclid, 10th Dist. Franklin No. 93AP-138, 1993
WL 317239 (Aug. 19, 1993). “All that is required is that the board include within the
record of its proceedings its reasons for rejecting the referee’s recommendation.” Id. For
example, when reviewing a board’s decision for compliance with R.C. 119.09, a common
pleas court may consider “meeting minutes, together with the Board’s actions” and any
“objections in the record.” Bennett at ¶ 18-19 and Snyder at ¶ 37. In Bennett, the court
found that “member comments” set forth in the hearing transcript, the state’s objection to
the report, and “the absence of any comments supporting the hearing examiner’s legal
conclusion” all combined to demonstrate compliance with R.C. 119.09.
13. {¶ 27} In this case, the record includes the 32-page transcript from the review
hearing before OREC. Following arguments by counsel, OREC recessed and entered
into off-the-record deliberations. When the hearing resumed, the president of OREC
offered the following:
Based on our review of the record and the Hearing Officer’s
Recommendation to us, we’ve had quite a lengthy discussion of ownership
and what it provides under R.C. 4735.18.
I am of the opinion that although the vendee [Harding] did have a
right to exercise [her right] to sell her interest in the Land Contract, I do
believe * * * the vendor [Long] still had rights as an owner, and therefore,
under 4735.18(A)(17), the vendee could not advertise or place a sign on the
property for sale or rent without the consent of the vendor * * *. So I am of
the opinion to * * * to adopt the finding of facts, but reject the conclusions
of law of the Hearing Officer.
{¶ 28} A similar opinion was offered by another OREC member. Following a
motion, the commissioners voted in favor of finding that Harding violated Section
(A)(17), by a four-to-one vote. The written Adjudication Order followed.
{¶ 29} We find that OREC clearly satisfied the requirement that it provide reasons
in support of its decision to “modify or disapprove” of the hearing officer’s
recommendation, in compliance with R.C. 119.09.
14. {¶ 30} As for Harding’s claim that the trial court also failed to provide a “legal
basis” or “legal analysis” in support of its decision, we note that the common pleas court,
unlike OREC, was under no obligation to make any particular findings or provide
“reasons” for its decision. In its 14-page Opinion and Judgment Entry, the common pleas
court found that the adjudication order was supported by “reliable, probative, and
substantial evidence and [was] in accordance with the law,” which was exactly its
mandate under R.C. 119.12(M). Accordingly, we find that Harding’s first assignment of
error (that the trial court erred by failing to “provide a legal analysis”) and her the third
assignment of error (that the tribunals erred by “provid[ing] no legal basis for the[ir]
decisions”) are not well-taken.
V. The lower court’s determination that Harding violated R.C. 4735.18(A)(17) is not contrary to law.
{¶ 31} In her second assignment of error, Harding claims that the lower court’s
determination is contrary to law. The lower court found that OREC’s conclusion that
Harding violated R.C. 4735.18(A)(17) is supported by “reliable, probative, and
substantial evidence and [was] in accordance with the law.”
{¶ 32} Under R.C. 4735.18(A)(17), a real estate licensee may be sanctioned if
“found guilty of * * * [h]aving advertised or placed a sign on any property offering it for
sale or for rent without the consent of the owner or the owner’s authorized agent.”
(Emphasis added). Harding argues that because she is an equitable owner of the property
pursuant to the parties’ land contract, she is an “owner” under R.C. 4735.18(A)(17) and
therefore did not violate the statute.
15. {¶ 33} Under Ohio law, a land contract is defined as “an executory agreement * *
* under which the vendor agrees to convey title in real property located in this state to the
vendee and the vendee agrees to pay the purchase price in installment payments, while
the vendor retains title to the property as security for the vendee’s obligation.” R.C.
5313.01. Here, there is no dispute that the vendor— Long, acting on behalf of Breck
Properties— was the title owner of the property. Similarly, there is no dispute that
Harding, as vendee, had an “equitable interest in the property,” which included a right to
possess the property and a corresponding obligation to pay, for example, the property
taxes and insurance. See, e.g., Bradford v. B & P Wrecking Co., 171 Ohio App.3d 616,
2007-Ohio-1732, 872 N.E.2d 331, ¶ 28 (6th Dist.), quoting Lee v. Sanders, 11th Dist.
Trumbull No. 2004–T–0024, 2005-Ohio-2091, ¶ 12 (“[V]endees [to a land contract] do
not obtain legal title to the premises immediately; instead, they have only ‘a possessory
equitable interest relative to the amount of the purchase money that has been paid.’”).
Thus, there is no disagreement that Long, in her representative capacity, was “the
nominal or legal owner” and Harding was the “beneficial or equitable owner.” Ohio Div.
of Real Est. v. Vantell, 128 Ohio App.3d 410, 416, 715 N.E.2d 217 (7th Dist.1998),
quoting Black’s Law Dictionary (5 Ed.1979) 996 (“There may therefore be two ‘owners’
in respect of the same property, one the nominal or legal owner, the other the beneficial
or equitable owner.”). The legal issue before us is whether Harding’s equitable interest in
the property qualified her as “the owner” under R.C. 4735.18(A)(17). We find that it
does not.
16. {¶ 34} The term “owner” is not defined in the statute. See R.C. 4735.01
(“Definitions”). When a statutory term is undefined, we apply a “plain and ordinary
meaning.” (Quotations omitted.) Great Lakes Bar Control, Inc. v. Testa, 156 Ohio St.3d
199, 2018-Ohio-5207, 124 N.E.3d 803, ¶ 8. “Interpretation of an undefined statutory
term—and whether something meets the definition of that term—is a matter of law, not a
question of fact.” King v. Buildtech Ltd. Constr. Dev., 6th Dist. Lucas No. L-22-1088,
2023-Ohio-1092, ¶ 40. Again, our standard of review, as to “purely legal questions,” is
de novo.
{¶ 35} Black’s Law Dictionary contains the following definitions:
Owner: Someone who has the right to possess, use, and convey
something; a person in whom one or more interests are vested. An owner
may have complete property in the thing or may have parted with some
interests in it (as by granting an easement or making a lease).
Legal owner: One recognized by law as the owner of something;
esp., one who holds legal title to property for the benefit of another.
Equitable owner: 1. One recognized in equity as the owner of
something because use and title belong to that person, even though legal title
may belong to someone else; esp., one for whom property is held in trust. —
Also termed beneficial owner. * * *
17. Black’s Law Dictionary (11th ed.2019); see also Vantell at 416 quoting Blue Ash Bldg. &
Loan Co. v. Hahn, 20 Ohio App.3d 21, 24, 484 N.E.2d 186 (1st Dist.1984) (Using similar
definition of “owner” and quoting Black’s Law Dictionary (5 Ed.1979) 996.
{¶ 36} Applying the definitions set forth above, Long (acting on behalf of Breck
Properties) qualified as the “owner” because she had a vested right to “possess, use, and
convey” the property. And, she retained that designation, even after she “parted with”
some (i.e. her right to possess and use) but not all (i.e. her right to convey) her interest in
the property. And because she maintained legal title to the property, Long also qualified
as the “legal owner,” and is “recognized by law as the owner of” the property. Id. But,
Harding qualified as an “equitable owner” of the property because “use and title
belong[ed] to [her], even though legal title * * * belong[ed] to [Long].” Id.
{¶ 37} Applying those definitions to R.C. 4735.18(A)(17) we find that although
Harding’s equitable ownership of the property made her “an owner” of some rights to the
property—i.e., an equitable owner—she was not “the owner” under R.C. 4735.18(A)(17).
That designation belonged to Long, acting on behalf of Breck Properties. And, because
only “the owner” (or the owner’s agent) could consent to the placement of a sign on the
property, Harding, who was not the owner, violated Section (A)(17) in doing so.
{¶ 38} We find that OREC’s conclusion—that Harding was not “the owner” of the
property—was not “contrary to law.” Therefore, the common pleas court did not err in
affirming OREC’s decision on this issue, and Harding’s second assignment of error is not
well-taken.
18. VI. OREC did not “create a new standard” for imposing liability under R.C. 4735.18(A)(17)
{¶ 39} Finally, in her fourth assignment of error, Harding claims that OREC—by
excluding a “vendee” to a land contract from R.C. 4735.18(A)(17)’s definition of
“owner”—has “establish[ed] a new standard for licensed real estate brokers, which did
not exist before.” Again, we disagree.
{¶ 40} OREC had jurisdiction over this case because Harding is a licensed real
estate broker. R.C. 4735.18 authorizes OREC to impose discipline “upon any licensee
who, whether or not acting in the licensee’s capacity as a real estate broker or
salesperson, or in handling the licensee’s own property.” (Emphasis added.) In this case,
Harding was acting in her personal capacity. The type of financing she arranged was by
way of a land contract, which is governed by an entirely different chapter of the Ohio
Revised Code. See Chapter 5313 (“Land Installment Contracts”).
{¶ 41} Harding claims that there is no legal authority to support the conclusion that
“a vendee to a land contract has no legal right to list the property.” But this case does not
consider whether Harding had a legal right to list the property; the relevant issue in this
case is whether Harding’s real estate license may be suspended or revoked because she
violated a statutory provision, unique to real-estate agents, that prohibits agents from listing
a property “without the consent of the owner.”
{¶ 42} OREC concluded, as a matter of law, that Harding, as vendee, did not
qualify as “the owner,” under R.C. 4735.18(A)(17), and, as we found in response to
Harding’s second assignment of error, the agency’s decision is not “contrary to law.”
19. R.C. 5313.01(D) defines a “[v]endee” as a “person who acquires an interest in property
pursuant to a land installment contract, or any legal successor in interest to that person.”
This is consistent with Harding having been found to have an “equitable interest” in the
property. That is, while she had “an interest” in the property, it was inferior to the rights
of “the owner.”
{¶ 43} Simply put, there is no authority to support the position that a “vendee”
must be considered “the owner” for purposes of R.C. 4735.18(A)(17) in all
circumstances. We specifically reject the argument that OREC’s adjudication order
“created a new standard” for licensed real estate brokers, and therefore find Harding’s
fourth assignment of error not well-taken.
VII. Conclusion
{¶ 44} Under the circumstances of this case, we cannot conclude that the lower
court abused its discretion in finding that OREC’s adjudication order was supported by
reliable, probative and substantial evidence that Harding offered property for sale,
without the consent of the owner. We also find the trial court’s conclusion, that by her
actions Harding violated R.C. 4735.18(A)(17), was not contrary to law. Accordingly, we
affirm the judgment of the Lucas Count Court of Common Pleas and find Harding’s
assignments of error not well-taken.
{¶ 45} Pursuant to App.R. 24, Harding is ordered to pay the costs of this appeal.
Judgment affirmed.
20. Harding v. Ohio Real Estate Commission C.A. No. L-23-1010
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Myron C. Duhart, P.J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
21.