Hinch Law

This is a continuation of my previous post on the topic of renewable energy project contracts.  The first post focused on contract drafting and review concerns for landowners to note. Again, wind and solar projects in particular have been moving forward through local government approvals lately.  Since my first post, the McLean County Board has, on a 10- 8 vote, followed the recommendation of its Zoning Board of Appeals and approved one wind proposal.  See this recent article from the Bloomington Pantagraph . In this post, I want to focus particularly on one of the contract issues I mentioned last time, as it affects certain third parties - namely, contract provisions regarding liens and lien rights that are within the easement agreement / lease.  These provisions typically indicate that the renewable energy system is personal property and not an improvement to the real property itself, and that as such will be exempt from the Mechanics Lien Act .  Thi...

Illinois appears to be undergoing a resurgence in renewable energy projects, in the form of wind farms and now solar farms.    It's only a month into 2018, and McLean County, Illinois has had several such projects in the news, from at least three different energy companies (both wind and solar).  The Bloomington Pantagraph  newspaper calls it a " renewable energy boom ."  The news has primarily been about local government land use hearings, at which evidence is heard regarding the effects and economic benefits of such projects.  There's some opposition being raised for various reasons, with the economic development of the projects and the big picture benefits of renewable energy raised as supporting arguments.  I'm not here to debate all that. These projects can be critical to landowner farmers and their families as a revenue stream that is not tied to the ups and downs of agricultural markets, but also can be realized without having to give up...

Last winter I wrote about the First District Appellate court decision in  Murphy Hylton v. Lieberman Management Services, Inc . Here is that previous post .  After that decision, one of the parties petitioned the Illinois Supreme Court to hear the case, and the court granted the petition.  In the spirit of the season, the Illinois Supreme Court last week issued its decision , affirming the First District ruling. My previous post went through the case and potential liability and immunity under the Snow and Ice Removal Act ; I will not repeat that all here.  But essentially, the ruling (at both courts) finds that the Act, which provides immunity and limits liability for negligent removal of naturally accumulated snow and ice, does NOT apply to limit liability for negligently creating an unnatural condition that causes ice to accumulate.  In this case, the plaintiff alleged that a faulty downspout installation caused the ice accumulation.  The Court is...

As I write this post, Central Illinois is having a severe ice storm on the heals of a very wet Christmas.  Thus I read with interest today the First District Illinois Appellate Court's recent decision in Murphy-Hylton v. Lieberman Management Services, Inc. , as to the scope of the Snow and Ice Removal Act and "natural accumulation." At Illinois common law, a landowner has no duty to remove natural accumulations of snow, but can have a duty to remove unnatural accumulations, and if undertaking to remove snow, can incur liability if done negligently.  The Act changed the common law to provide immunity for injuries sustained by a person as a result of attempts to clear snow or ice, albeit negligently.   In Murphy-Hylton , the plaintiff apparently injured herself by slipping on a patch of ice on an otherwise clear sidewalk.  Her complaint did not allege negligent removal of snow or ice.  Instead, the plaintiff argued that her injury was caused by the defend...

I just  posted  a few days ago about the Illinois implied warranty of habitability and the recent case of  Fatah v. Bim , which found that contractors can be liable for a claim of warranty breach by a subsequent homeowner, not the initial buyer, even when the initial buyer signed a waiver with the builder.   The implied warranty is again  in the news  today, for a  second Illinois appellate case , this time about whether the warranty extends to architects for alleged design flaws.  The court held that the warranty addresses the construction itself, not design, and therefore found the warranty did not extend to the architect.   The case is also significant for the court's consideration of warranty disclaimer language in the contracts signed by the buyers, as to potential liability of the developer and other defendants.  The court found the disclaimer, which was in all caps, was sufficiently conspicuous as a matter of law, and that th...

Illinois recognizes an implied warranty of habitability by the builder-seller of a new construction home to the buyer, that the home will be suitable for habitation.  This warranty is breached when (1) there are hidden, latent defects in or around the residence, that (2) interfere with the dwellers' use of the residence. See  Board of Directors of Bloomfield Club Recreation Association v. Hoffman Group, Inc . Builders can disclaim this implied warranty and buyers can waive it, by an express written agreement, provided that the disclaimer specifically references the implied warranty of habitability, the disclaimer language is brought to the purchasers' attention, as well as the consequences of waiver, and the purchasers knowingly waive their right to pursue any action for breach of the implied warranty of habitability.  This is often coupled with a replacement, express warranty from the builder (for example, to fix any defects within the first year after construction). ...

The Illinois Appellate Court Second District's recent opinion In Re Estate of LaPlume   provides an interesting case of foreclosure law and the Probate Act in conflict - which one wins? T he foreclosure statute at issue was the Mortgage Foreclosure Act , and the plaintiff was a bank who had filed a mortgage foreclosure action separately from the decedent owner’s probate estate. The bank’s lien totaled about $165,000, and the total of liens and mortgages encumbering the property was more than $207,000.  The executor meanwhile found a potential buyer willing to pay $200,000 for the property, and filed a petition in the probate court under section 20-6 of the Probate Act , asking the court to order a short sale as per the offer.  The two cases were then consolidated in the probate court and during briefing of arguments, the executor received a revised offer to pay $205,000 for the property.  The trial court ruled for the bank and dismissed the executor’s petitions...

Over the past few months I've had the opportunity through the Illinois State Bar Association  on two occasions to provide continuing legal education presentations about commercial general liability (CGL) insurance and coverage of defective construction.  This can be a tricky area and the law can vary by jurisdiction; the Illinois line of governing cases differs from other States. An insurance policy is essentially a contract between the insurer and the insured, consisting of 1) the declarations, 2) the insuring agreement, 3) conditions, 4) exclusions, and 5) endorsements.  In the CGL world, many insurers use a variation of a nationally standardized form.  One thing that trips folks up is that some of the endorsements seem to say there should be coverage for certain things (for example, defective work done by a subcontractor) and so the temptation is to put the cart before the horse. In Illinois, you don't even get to the endorsements unless the court first finds ...

The Illinois Appellate Court, 1st District recently released its opinion in People v. Smith , affirming a circuit court's award of summary judgment on claims alleging a contractor violated the Consumer Fraud and Deceptive Business Practices Act  (CFA), the Home Repair and Remodeling Act  (HRRA), and the Illinois Roofing Industry Licensing Act .  The trial court awarded $50,000 damages and, in a first for an HRRA case to the best of my knowledge, permanently enjoined the contractor from "future home repair and remodeling work in Illinois." The case was brought by the Illinois Attorney General against the individual contractor personally, as well as two corporations for which he served as agent.  Apparently several consumers had filed complaints with the Attorney General alleging that they had hired this contractor to do home repair and remodeling work and paid a significant down payment, but that the contractor had never completed the work nor returned their mone...

I am honored to have had an article I wrote published in the October 2011 issue of the newsletter for the Illinois State Bar Association 's Construction Law Section, entitled "Must a homeowner establish the contractor's state of mind to state a claim for a violation of the Illinois Home Repair and Remodeling Act?"  I have written extensively about the HRRA on this blog (I believe this will be my 20th post carrying the "home repair and remodeling" tag), both because it is directly related to one of my core practice areas, construction law, and also because it is an area of the law that has been a veritable hornet's nest in recent years, and therefore fascinating.   The statute was amended last summer and the Illinois Supreme Court released an important case opinion at essentially the same time.   Further amendments were enacted this summer and will take effect in January 2012. Before last summer, the controversial question was essentially this - ...

Earlier this month Governor Quinn signed into law Public Act 97-235 .  The Act takes effect on January 1, 2012, and is aimed at protecting consumers faced with a catastrophic loss from contractor abuses at a time when they are most vulnerable.  Here's a summary of the changes: 1.  The Illinois Roofing Industry Licensing Act , 225 ILCS 335/5, et. seq , is amended by new Section 5.1 to require roofing contractors to post their license number and licensee's name on all commercial vehicles (see previous Section 5(b), a violation for which carries a $250 civil penalty.  The section also authorizes local government "code enforcement officials" to enforce this provision. The Home Repair and Remodeling Act , 815 ILCS 513/1, et. seq , (the "HRRA") is amended as follows: 2.  Added new Section 18, "Repairs following damaging weather," providing requirements for contractors offering home repair and remodeling services to consumers who have suffered a ...

I'm honored today to have the opportunity to write a guest piece at an award-winning, very highly regarded blog, Virginia construction law attorney Christopher G. Hill's Construction Law Musings .  Chris does an excellent job at consistently providing thoughtful, useful posts that reach an audience not just within the construction industry, but among other lawyers as well.  Among its honors, "Musings" was just recently named to LexisNexis' " Top 50 Environmental Law & Climate Change Community Blogs for 2011 ".  In that vein, my guest post is on " How (Not) to Work with the EPA and Your State Environmental Agency ." If you are not familiar with Musings, I encourage you to check it out. Nate Hinch is an attorney and partner at the law firm of  Mueller, Reece & Hinch, LLC .  He has offices at 404 N. Hershey Road, Suite C, Bloomington, IL 61704, and 809 Detweiller Drive, Peoria, IL 61615, and can be reached by phone at (309) 827-4055 a...

I'm honored to have the opportunity to write a guest blog post today for fellow construction law attorney Melissa Brumback's award-winning " Construction Law in North Carolina " blog.   The post is about selecting and using form construction contracts. Construction Law in North Carolina was recently named " 2011 Best Construction Law Blog " by Construction Marketing Ideas .  I have personally found Ms. Brumback's writing to be an excellent resource for legal issues affecting the construction industry. Nate Hinch is an attorney and partner at the law firm of  Mueller, Reece & Hinch, LLC .  He has offices at 404 N. Hershey Road, Suite C, Bloomington, IL 61704, and 809 Detweiller Drive, Peoria, IL 61615, and can be reached by phone at (309) 827-4055 and email at  nhinch@mrh-law.com .

This is the third in a series of posts about the Illinois Prevailing Wage Act ,  820 ILCS 130/0.01,   et. seq.   First we introduced the Act, then we addressed concerns from the public entity's perspective .  Up next - contractors and other private entities awarded contracts for "public works" projects.     The Act requires that "prevailing wage" be paid to laborers, mechanics and other workers for "public works" projects.  A public works project includes essentially any construction, maintenance, and equipment installation for any "public body" or for any project receiving certain public funding. Right out of the gate, contractors need to know this: IT IS THE CONTRACTOR'S RESPONSIBILITY TO PAY PREVAILING WAGE FOR ANY PUBLIC WORKS PROJECT, EVEN IF THE PUBLIC BODY DOES NOT TELL YOU TO DO IT!  Yes, the public entity is required to notice contractors that prevailing wages must be paid for a project, and the public entity can incur liabi...

Last week we introduced the Illinois Prevailing Wage Act ,  820 ILCS 130/0.01,   et. seq, and summarized the broad scope of the Act.  This post will elaborate on the Act from the standpoint of the public body.  The Act requires that "prevailing wage" be paid to laborers, mechanics and other workers for "public works" projects.  A public works project includes essentially any construction, maintenance, and equipment installation for any "public body" or for any project receiving certain public funding.  A public body is defined by the Act to include  State agencies, municipalities, public districts (yes, this includes fire protection districts, drainage districts, water and sanitary districts, soil and water conservation districts, etc.), school districts, "and every other political subdivision."  A public entity would be well advised to assume that it is required to pay prevailing wage unless it has specific opinion from counsel to the contrar...

Illinois' Prevailing Wage Act , 820 ILCS 130/0.01, et. seq , has been around for a long time but was revamped in the past few years, and the changes are significant.  The Act requires that "prevailing wage," as determined for similar work for the county or locality in which the work is to be performed, be paid to all "laborers, mechanics and other workers" employed in any "public works," and includes hourly cash wages plus fringe benefits for training and apprenticeship programs, health and welfare, insurance, vacations, and pensions.  "Works" is essentially construction work, but "construction" is defined to include maintenance, repairs, and equipment assembly and disassembly.  "Public" works are defined to include any "public body," including State agencies, municipalities, public districts, school districts, "and every other political subdivision...," and also to include work done by a private entity...

I previously noted here that the Illinois Supreme Court's November 2010 Docket included petitions for leave to appeal for four recent cases involving the Illinois Home Repair and Remodeling Act  (the "HRRA).  Here are the four cases: Artisan Design Build v. Bilstrom  , ILSC No. 109371, discussed  here . Fandel v. Allen , ILSC No. 109887, discussed  here . Roberts v. Adkins , ILSC No. 109909, discussed  here .     Universal Structures, LTD. v. Buchman   , ILSC No. 110842, discussed  here . On November 24, the Court denied leave to appeal to all four.  For Artisan Design Build , Fandel , and Universal Structures , this means that the decision of the appellate court is final (although these cases are not necessarily over, depending on the disposition of each case at the respective trial courts).  For the Roberts case, however, the Supreme Court directed the Third District Appellate Court to vacate and to reconsider its ...

In the wake of the Illinois Supreme Court's recent decision in    K. Miller Construction Co. v. McGinnis , ILSC Case No. 109156, the Court's November Docket book includes four more Home Repair and Remodeling Act cases in the Leave to Appeal Docket.  This means a party in each of these cases has sought to appeal the decision of the Illinois Appellate Court, but the Illinois Supreme Court has not yet determined whether or not it will grant the appeal and hear the case.  The four cases have all been discussed on this blog previously, as follows: Artisan Design Build v. Bilstrom , ILSC No. 109371, discussed here . Fandel v. Allen , ILSC No. 109887, discussed here . Roberts v. Adkins , ILSC No. 109909, discussed here .     Universal Structures, LTD. v. Buchman   , ILSC No. 110842, discussed here . The Court will likely announce by the end of the month whether or not it will hear appeal of these cases.  Stay tuned. Nate Hinch is an attorne...

The Illinois Supreme Court issued an opinion today in K. Miller Construction Co. v. McGinnis , Case No. 109156, holding that a contractor who violated the Illinois Home Repair and Remodeling Act (HRRA), 815 ILCS 513/1 et. seq , by not working under a written contract and failing to give the homeowner the consumer rights brochure required by the HRRA, still had a right to be paid for its work under both legal and equitable theories.  The First District Appellate Court had held last year that the contract was void as against public policy, but that the contractor still had a right to be paid for its work under the equitable theory of quantum meruit (literally, "as much as he has deserved"). In July the HRRA was amended to clarify that a homeowner who suffers actual damages as a result of an HRRA violation has recourse under the Consumer Fraud and Deceptive Business Practices Act (CFDBPA), 815 ILCS 505/1 et. seq .  However, as previously discussed on this blog , exactly h...