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...

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...

The Appellate Court of Illinois, Second District issued an opinion on August 6, 2010 in another Illinois Home Repair and Remodeling Act (HRRA) case, F leissner v. Fitzgerald , Case Number 2-09-0805.  In Fleissner , a home repair contractor sued a homeowner to enforce an oral contract, by asserting four counts - I. Mechanics Lien Foreclosure; II. Breach of Contract; III. Unjust Enrichment; and IV. Quantum Meruit .  The homeowner moved to dismiss the suit under Code of Civil Procedure Section 2-619(a)(9) because the contractor failed to provide and have the homeowner sign a written agreement, and failed to give the homeowners the consumer rights brochure required under the HRRA.  The trial court granted the homeowners' motion and the contractor appealed. On appeal the contractor argued that the trial court erred in dismissing the equitable remedy counts (Unjust Enrichment and Quantum Meruit ) but the Appellate Court determined that the contractor did not contest the dism...

In Mostardi-Platt Associates, Inc. v. Czerniejewski , the Fifth District Illinois Appellate Court affirmed the trial court's dismissal of the plaintiff's mechanics lien claim, where the plaintiff completed "air quality construction permitting and disperson modeling services" for Power Holdings of Illinois, LLC, who had an option to purchase the property at issue.  Case No. 5-09-0339 (May 11, 2010).  The Appellate Court held that plaintiff had not contracted with the "owner" of the land under the Mechanics Lien Act; that the contract between Power Holdings and the owners (Power Holdings was actually assigned this contract from another entity) only authorized feasibility studies, not improvements to the land; and that the services provided by the plaintiff did not result in any improvement to the land or benefit to the owner. The court analogized the case to L.J. Keefe Co v. Chicago & Northwester Transportation Co , in which a plaintiff subcontractor so...

The Second District Appellate Court of Illinois recently held that an owner by filing a demand under Section 34 of the Mechanics Lien Act (the Act) can be deemed to have waived a contractual right to compel arbitration.  The case is Illinois Concrete-I.C.I, Inc. v. Storefitters, Inc , No. 2-09-0854 (2nd Dist. 2010).  In Storefitters, the plaintiff contractor filed a mechanics lien claim alleging that the defendants had failed to pay it for its work.  The Defendants then served notice on the plaintiff pursuant to Section 34 of the Act, requiring the contractor to file suit to commence an action to enforce the lien within 30 days, or else forfeit the lien claim (the "Section 34 Demand").  The contractor filed suit as required, at which point the defendants filed a motion to compel arbitration pursuant to a mandatory arbitration clause in the parties' contract (it appears from the opinion that the contract language actually called for mediation followed by arbitration)...