Potential Buyers 

Ohio Residential Property Disclosure Form

In Ohio, sellers must disclose all known, material, and latent defects, regardless of any legal exemption or "as-is" clause, to avoid claims of fraudulent nondisclosure. While the doctrine of caveat emptor (buyer beware) still exists, Ohio case law has carved out exceptions for fraud.

“This form is required by Ohio Revised Code Section 5302.30.”

…if this form is not provided to you prior to the time you enter into a purchase contract for the property, you may rescind the purchase contract…”

https://com.ohio.gov/divisions-and-programs/real-estate-and-professional-licensing/salespersons-and-brokers/transaction-forms-and-disclosures/residential-property-disclosure-form

1. Water Supply

   • A private hand pump (non-electric) well exists and appears nonfunctional.

   • Public water supply is not available.

2. Sewer System

   • Pit outhouse remains likely, given found on neighboring property.

   • Public sewer access is not available.

3. HAZMAT

   • Sodium pentobarbital, formaldehyde, and other chemicals are potentially in groundwater from the pet cemetery.

   • PFAS is potentially in groundwater being down river from Dayton Airport.

   • Radon level detected at surrounding property: 1-50 pCi/L.  Two most recent previous owner occupants of 6340 Frederick Pike diagnosed with lung cancer; one died.

4. Drainage/Erosion

   • Owner of landlocked 5 acres owes for past and ongoing costs of drainage/erosion shared driveway issues and repairs, which drainage issues have contributed to at least one human fatality.

   • Culvert for access to 5 acres clogged, contributing to water logging of shared driveway foundation, which contributed to structural failure of shared driveway; culvert therefore removed; expenses owed.  

   • Whereas the shared driveway is in a narrow/ravine on lower wet ground, it has a history of sinking/drainage/freezing over issues contributing to vehicle collisions, particularly at the bottom of the hill going across Frederick Pike, causing a car to hydroplane leading to the death of a driver.  Freezing over of the driveway and across Frederick Pike toward Stillwater River is also common.  There is a failed drainage system under the driveway, which leaks out for days after a big rain and occasionally freezes over down the hill.  Ditches and culverts occasionally clog and freeze over the driveway (see pictures attached).  Any snow on the driveway hill going down to Frederick Pike and the Stillwater River may be enough to conceal ice or otherwise prevent a vehicle or person from stopping.

5. Zoning/code violations

   • The 5-acre lot is landlocked, which is nonconforming with Butler Township Zoning Regulations in not having the minimum required road frontage for any otherwise legal use/construction.

   • Nonconforming uses place burden on the surrounding area which devalues properties, evident by sale prices and foreclosures of properties which share the same driveway as the subject property (included below).  Decades of foreclosures are in part the result of property values driven by neighbor issues centered around the shared driveway, and therefore also a result of nonconforming with zoning.  The intent of zoning is to not remove an occupant from an existing structure, but end nonconforming uses upon end of use, which is intended to make the land only valuable to those who can provide road frontage to eventually end of the burdens of landlocked properties and end burdens of shared driveway issues upon end of legal use.

   • The end of legal use of the subject 5 acres was approximately 50+ years ago, evident by satellite images and documentation on file with Butler Township Zoning.

   • Permits for construction, even an addition on existing structure, on landlocked property within the Narrows have previously been rejected.

   • To attempt a nonconforming use would be going against zoning regulations and the oldest pet cemetery in Ohio.  Butler Township and Montgomery County Courts historically sides with the public when it comes to nonconforming construction/development.

   • Property landlocked within the Narrows no longer have roadside trash service and may be lacking access to other utilities due to abandonment of nonconforming use(s).  ORC 3734 states dumping on another’s property (for example: by Frederick Pike on cemetery property supposably for trash pickup) may be charged as a felony, where the prior cemetery owner was arrested and fined for allowing dumping at the cemetery.

6. Proposed assessments

   • The owner of the landlocked 5 acres owes driveway maintenance costs, for which a judgement lien is being pursued with the intent to foreclose again to collect payment.  The current owner of the 5 acres was likewise a lienholder in foreclosing against the previous owner of the 5 acres.  The owner is required to disclose the obligation of contributing to the shared driveway, including what is owed from the past for the subject property.  Costs to maintain access to the property stay with the property like property taxes and HOA fees.  If any part of this is not disclosed, the next owner may sue the prior owner for not disclosing costs already owed.  Evidence of prior owner knowledge is available to aid in lawsuits.  The current owner still owes share in all past, current, and future shared driveway costs.  The exact amount as of any date may be requested by contacting the cemetery.  The cemetery plans to complete another driveway replacement after incinerators are installed, as there’s little justification for the driveway to be replaced again prior to offering desired services appurtenant to the cemetery.

   • Montgomery County recommended the shared driveway servicing the subject properties width be increased to a minimum 22 feet wide without curb and gutter per county standards for rural streets.  The driveway also needs to be built and maintained to handle the weight of equipment used to maintain the preexisting 16” high pressure gas line, trash service, delivery services, and for fire department access.

   • The shared driveway lighting, which preexists current parties ownership, failed and is being replaced.  Butler Township Zoning also previously asked about addressing lighting for the shared driveway servicing the subject properties, where the developer responded street and landscape lighting will be provided and maintained with shared driveway expenses.

   • Example: if one party spends $200,000 to replace the shared driveway 22 feet wide 1,300 feet long, and $40,000 on maintenance, lighting, and snow/ice removal totaling $240,000 in a given period, the other party then owes half of $240,000 which is $120,000, which may be placed as a lien and foreclosed again to collect payment. 

7. Shared Driveway

   • Shared driveway easements include approximately 0.85 acres out of the 5 acres, which also includes approximately 90% of the perimeter of the 5 acres.

   • A shared driveway agreement was recorded to allow the landlocked 5 acres to exist, in providing it legal access.  The recorded shared driveway agreement states, (with spelling errors, scan of original agreement also included below),

“Said grantors [cemetery owners separating/selling 5 landlocked acres] agree to reserve a 15 foot strip of Ground on north side of said 5 acre tract and likewise dedicate a 15 foot strip off the south side of his 20 acre tract [remaining cemetery property] which will be adjacent to said First 15 foot strip left open for road purposes so both grantors [cemetery] and grantee [5 acres] may have egress and ingress to said tracts; all expenses of maintainence and building said roadway to be borne equally by grantors [cemetery] and grantee [5 acres] herein.”

7. • The recorded agreement is “all expenses… to be borne equally” between only two parties listed, where today only two parties exist.  It is not split by number of lots, amount of use, type of use, number of uses, people, buildings, square footage, parking spaces, acreage, cars, whether or not a party uses it at all, how much money someone has, ability to pay, or any other way. 

   • In this agreement, there are no votes involved with specific driveway expenses.  It is the landowner's choice to enter and remain in said agreement by owning land part of said agreement.  If there were votes, the minority would owe whatever the majority votes and is still be subject to liens and foreclosure, as how property taxes and often HOA fees are voted upon and if unpaid foreclosed to collect payment.

   • The shared driveway originated in 1928 with the division of the landlocked 5 acres.  This was after the start of the Narrows Pet Cemetery in 1926, which was also a farm then, so the existence and operation of the cemetery, which has existed continuously since 1926, does not present a change to or abandonment of said agreement.  Building on an abandoned landlocked property, having been not used for more than 2 years (50 years total estimated), however would be a new nonconforming use.

   • For cost estimating: the original shared driveway easement is 1,300 feet long and 30 feet wide; it is currently paved 18 feet wide plus retaining walls, culverts, and lighting.  It gets narrower with sections of concrete in gravel.  However, the county has requested it be 22 feet wide to bring it up to current county rural road standards, even as a private shared driveway.

   • Additional shared driveway easements exist on the 5 acre property for shared benefit with a 10-acre property, which includes a 20-foot-wide driveway easement along and within the entire north edge of the 5 acres, a 40-foot-wide driveway easement within the east corner of the 5 acres, and a 10-foot-wide easement along and within the south edge of the 5 acres from Frederick Pike to “level ground”.

8. Encroachments

   • The physical shared driveway encroaches beyond legal driveway easements onto 6330 and 6350 Frederick Pike properties, whereas as much as the entire width of the paved driveway is physically outside the legal easement before reaching the landlocked properties.

   • The primary structure at 6340 Frederick Pike encroaches into the shared driveway easement.

9. Other Material Defects

   • Ruins exist from prior driveway and structure on the 5 acres last used approximately 50 years ago per public records.

Other Information (not necessarily required to be disclosed)

10. The current owner of the landlocked 5 acres was previously sued for falsely selling land (as part of another development of his, not near the cemetery) as a “buildable”.  Reference: Montgomery County Clerk of Courts, case number 2019 CV 05554.  After over 10 years after residential construction started on the lot and years in court the sale was reversed.  The two developers involved, including one who currently owns 5 acres landlocked within the cemetery, were also held responsible for court costs.

11. The current owner of the landlocked 5 acres acquired the 5 acres after foreclosure lawsuit against the previous owner, in which the current owner had a mortgage lien against the prior owner.  The prior owner tried to build on the landlocked 5 acres.  Several have said they tried to acquire the cemetery, bulldoze it, and include it as part of the development.  The development appears failed due to not being able to acquire the cemetery, therefore not having required road frontage and/or not being large enough of a development to justify running public utilities.  The prior owner was two business partners under an LLC, one filed for bankruptcy.  Reference: Montgomery County Clerk of Courts, case number 2008 CV 11167.

12. The completely surrounding cemetery and appurtenant animal incinerator uses are regulated and protected/exempt by state law; reference: ORC 961 & OAC 3745-31-03(B)(1)(rrr)

    • The pet cemetery is deed restricted as a pet cemetery in compliance with ORC 961, which covers appurtenant uses such as incinerators for handling of animal remains.  Regarding certain requirements, the pet cemetery preexists state laws regulating pet cemeteries.

    • Ohio EPA exempts incineration of 600lbs/hr of animal remains per incinerator with no limit on hours of operation.  Animal incineration chemical and particulate emissions limits were largely eliminated in 2023.  Incinerators larger than 600lbs/hr are subject to specific Ohio EPA approval.  Additional approval is being sought to handle remains exposed to infectious and zoonotic agents.

    • Cemetery expects animal incineration services to be focus of services/income going forward.

13. Due to previous owners of landlocked properties dumping in the cemetery, use of illegal drugs, unlawful firearm discharge, vandalism, theft, refusing to contribute to driveway maintenance, and even pay for trash service (evident by past liens from township), anyone involved with landlocked properties is no longer welcome on cemetery property beyond the right of way.  This also means no river access for landlocked properties.  If a vehicle is left on cemetery property or blocking a driveway easement, even because one couldn’t make it up the driveway due to snow (which has not been plowed by landlocked properties in years), the vehicle will be towed without further warning.  Contact Sandy’s Towing at 1-800-762-4357 to retrieve your vehicle.

14. Video surveillance may make perimeter intrusion alert sounds and sends notifications when someone enters cemetery property, including when passing through cemetery property to a landlocked property.  Alert sounds, and PA systems are audible throughout the Narrows properties.  Alarm sirens for the cemetery and agricultural land uses are audible from several miles away.

15. Agricultural fences are energized with 7,000 volts per ORC § 3781.1011(C)(6), which will eventually surround the perimeter.  If your dog can get to the fence or livestock, you have failed to control your animal.  You will answer to police.

16. ORC 2923.162: “(A) No person shall … (1) … discharge a firearm upon or over a cemetery or within one hundred yards of a cemetery;”

Sample video evidence: https://www.youtube.com/watch?v=yFxzHeF1Vb0