Whiteman Law Whiteman Law 2025-03-31T13:57:19Zhttps://www.whitemanborden.com/feed/atom/WordPress/wp-content/uploads/sites/1604101/2022/12/cropped-cropped-favicon-new-1-32x32.pngby Adam Whiteman<![CDATA[You Get What You Deserve]]>https://www.whitemanborden.com/?p=476052023-12-06T09:54:23Z2023-11-07T11:03:50ZIllinois State Bar Association Publication May 2023
“You get what you deserve.” We have all heard this phrase used. Most commonly, it has a negative connotation. When you do something wrong, “you get what you deserve.” But when expressed in Latin, the phrase presents a different coloring. The term quantum meruit means “as much as he deserves.” It is an expression that describes the amount that could be awarded on a contract implied in law (also called a quasi-contract) and is based on the reasonable value of the services performed. Quantum meruit can be pursued as an equitable remedy to provide restitution for unjust enrichment. It is often pleaded as an alternative claim in a breach-of-contract case so that the plaintiff may recover even if the contract is unenforceable or there is no contract.
An interesting application of this principle can be found in the case of Restore Construction Co., Inc. v. The Board of Education of Proviso Township High Schools, 2019 IL App (1st) 181580 (June 28, 2019).
In Restore Construction Co. v. Board of Education of Proviso Township High Schools District 209 (supra), the plaintiffs provided restoration services after a district high school was damaged by fire. The plaintiffs completed $7,271,000 worth of work pursuant to two separate agreements but were paid only $5,816,223.08. The school district refused to pay the outstanding balance of $1,428,553.90 claiming that the agreements were never properly voted on and approved by the school board. The plaintiffs brought a suit which stated counts asserting quantum meruit as a basis to recover for the value of the work performed. The school district moved to dismiss plaintiff’s quantum meruit counts, arguing that a school district cannot be held liable under a theory of quantum meruit when the contracts purporting to bind the district were void ab initio. The trial court granted the school district’s motion to dismiss the complaint, but the appellate reversed.
The issue, according to the appellate court, was “not whether the Proviso Board can be held liable under a void contract, but whether the principles that preclude the enforcement of a void contract also preclude the application of quantum meruit.” Id. at ¶ 34. According to the court, the term quantum meruit means “as much as he deserves and is an expression that describes the extent of liability on a contract implied in law (also called a quasi-contract)” Id. at ¶ 28. The court noted that “Illinois courts have held governmental units, like a school district, liable on contracts implied in law even where proper contractual forms were not followed.” Id. at ¶ 37. Citing authority, the court explained that “A contract implied in law is one in which no actual agreement exists between parties, but a duty to pay a reasonable value is imposed upon the recipient of service or goods to prevent unjust enrichment.” Id. at ¶ 39. Since the Proviso Board did not dispute that it accepted all of plaintiffs’ service without objection, it would be unjust to allow it to retain said services without paying reasonable value for them.
In order to recover under a theory of quantum meruit, a plaintiff must prove that: “(1) it performed a service to the benefit of the defendant, (2) it did not perform the service gratuitously, (3) defendant accepted the service, and (4) no contract existed to prescribe payment for the service.” Id. at ¶ 43. The court determined that plaintiffs plead facts establishing these four elements. That the agreements were void ab initio was not determined to be a bar to relief, but rather, an allegation satisfying the fourth element of the pleading standard—i.e., that no contract existed to prescribe payment for the service.
The lesson is, don’t give up. It must have been quite frustrating for the plaintiffs in this case to have obtained agreements signed by persons purportedly acting on behalf of the school district, to have performed over $7 million worth of work, to have gotten paid for almost $6 million worth of said work only to learn that the last $1.4 million would not be paid because the contracts were not voted on and approved by the school board. Should they have known better when dealing with a governmental entity that proper ratification procedures should be followed? Possibly. But the opinion also notes that plaintiffs were asked to provide “emergency mitigation services to the District” and they were advised that “the District would approve a contract…to mitigate and remediate damage from the fire.” The plaintiffs thereafter “provided emergency mitigation services.”
In the end, the plaintiffs were permitted to go forward with their suit seeking to recover the fair value of their services, and the school district was not permitted to use a procedural technicality as a way of evading their financial responsibilities. It seems like both parties in this case got what they deserved.*
*Adam Whiteman of Whiteman Law maintains a law practice in Northern Illinois concentrating on the areas of real estate, construction, and commercial litigation. Adam@WhitemanLaw.com]]>On Behalf of Whiteman Law<![CDATA[Tips For Filing And Enforcing A Mechanic’s Lien On An Owner, Or One Who Occupied Residence]]>https://www.whitemanborden.com/?p=474492022-12-16T08:06:29Z2022-12-15T11:29:50Z60 Day Notice
You must give the owner written notice that you have furnished labor or material for his home improvement within 60 days of starting your work or after the first delivery of supplies (Note the 60 day notice does not apply to new construction).
This notice must include: (a) the subcontractor's or material persons' name and address, (b) the date on which the subcontractor began to work or to deliver supplies, (c) what was done or to be done, (d) a description of the supplies delivered or to be delivered and (e) the contractor's name who requested the work. Additionally, the following warning, set out in BOLD PRINT must accompany this notice:
NOTICE TO OWNERTHE SUBCONTRACTOR PROVIDING THIS NOTICE HAS PERFORMED WORK FOR OR DELIVERED MATERIAL TO YOUR HOME IMPROVEMENT CONTRACTOR. THESE SERVICES OR MATERIALS ARE BEING USEDIN THE IMPROVEMENT OF YOUR RESIDENCE AND ENTITLE THE SUBCONTRACTOR TO FILE A LIEN AGAINST YOUR RESIDENCE IF THE LABOR, SERVICES, MATERIAL, FIXTURES, APPARATUS OR MACHINERY, FORMS OR FORM WORK ARE NOT PAID FOR BY YOUR HOME IMPROVEMENT CONTRACTOR. A LIEN WAIVER WILL BE PROVIDED TO YOUR CONTRACTOR WHEN THE SUBCONTRACTOR IS PAID, AND YOU ARE URGED TO REQUEST THIS WAIVER FROM YOUR CONTRACTOR WHEN PAYING FOR YOUR HOME IMPROVEMENTS.
NOTE: Where you are uncertain whether the project involves an existing, owner-occupied, single family residence, be safe and send the notice. If you fail to provide the homeowner the 60 day notice your lien rights be in jeopardy.
EXCEPTION: If you sent the notice late (after 60 days from FIRST furnishing materials and labor), your lien rights might be preserved, but only to amount of monies not yet paid to the Contractor by the Owner.
90 Day Notice of Lien
You must also give the owner and his lender written notice of your claim for a mechanic's lien within 90 days (not 3 months) after completing the work or from the last day materials were delivered to the job site. To locate the lender's name, you may need to go to the Recorder's Office and search the public records. Both the 60 and 90 day notices must be personally served (personally handing the written notice to the owner) or sent by certified or registered mail, return receipt requested with delivery limited to the name of owner or his agent, or architect, or the superintendent in charge of the project. If served by mail (addressing the notice to "occupant" is insufficient), the notice is deemed served when deposited in the mailbox. The 60 and 90 day notices must state the name of the owner, the contractor, a description of the work furnished, the property in question and the amount due.
By doing this, you will notify the owner of your lien in the event the Contractor failed to list you in his affidavit and will place the legal duty on the owner to withhold payment to the contractor in the amount of your lien.
NOTE: Serving the 90 day Notice of Lien may be excused if you are listed in the Contractor's Statement but your lien claim will be limited to the amount indicated in the Contractor's Statement. The Notice may also be excused if you cannot locate the owner (or his agent) because he is a non-resident or, after reasonable diligence, cannot locate him in the county. In that situation, you must file your notice in the Recorder's Office. If the property is held in joint tenancy, the notice must be served on each owner; service on only one of the joint tenants will bind only his interest. and
File Claim For A Lien Within 4 Months
If after serving the 60 day and 90 day notices you still have not been paid by the owner or contractor, you must then file a claim for a mechanic's lien within four months (not 120 days) of the last delivery of materials or last day of work on the job.
The subcontractor's claim for a lien must be verified and contain a brief statement of the subcontract, a statement as to whether the subcontract is oral or written, the date of the subcontract, a description of the kind of work done, a statement as to the amounts paid and the amount currently due and the specific amount for which a lien claim is being made, and a legal description of the property to which the lien applies.
File Suit
If the lien notices were properly served and the claim for a lien properly recorded, you must file a lawsuit to foreclose a mechanics' lien claim (i.e., to force the sale of the improved property to satisfy your lien) against the owner and the general contractor within 2 years from completing the work or from the last delivery of materials, and you should include all necessary parties such as other lien holders.
By doing all of the above, you can successfully assert a lien against both the original owner as well as any new owners or other third persons.]]>by Whiteman LLC<![CDATA[Force majeure clauses and commercial leases in the age of COVID]]>https://www.whitemanborden.com/?p=471692022-12-09T08:27:55Z2021-06-21T15:19:06ZWhat is “Force majeure?”
The origins of most legal languages come from Latin, but there is one classic French edict that still governs basic contract language. Force majeure, which means “superior strength,” is a common clause that covers unforeseeable circumstances that prevent someone from fulfilling a contract.
Loosely defined as an “Act of God,” the provision is designed to protect one or both parties from liability if their ability to provide goods and services is interrupted. In this evolving age of COVID-19, broad discussions are taking place about obligations, rent abatement and evictions.
Who should qualify? How long should relief be granted? And should property owners suspend business or claim their contracts were breached?
Some of those questions may be answered if there was a force majeure clause in the lease. People can mitigate the spread, but no person can control a virus. Any small business owner could argue that COVID-19 was unforeseeable when crafting a contract and unavoidable when it struck.
There may be a way to mitigate losses or negotiate a settlement that preserves the agreement.
Preserving relationships
Commercial leases are binding documents, but they also are relationships between property owners and tenants. Viewing obligations through the lens of this unprecedented hardship may provide more common ground than not.
A proactive approach to conflict and an advocate experienced in contracts and real estate law may be able to save all parties money and preserve business relationships built on trust and empathy.
]]>On Behalf of Whiteman LLC<![CDATA[New rights accorded to tenants in Cook County after negotiation]]>https://www.whitemanborden.com/?p=469822021-04-15T18:21:07Z2021-04-07T18:20:42ZOrdinance grants new rights to renters and landlords in Cook County
Two county commissioners forged an agreement that was unanimously approved by the Cook County board. Representatives for landlords and tenants made concessions to make the agreement possible. The legislation is known as the Residential Tenant and Landlord Ordinance. In it, the county has issued new rules that place a limit on security deposits and late rent fees. Renters now have the right to withhold their rent if there are repairs that haven't been made, if there are utilities that are supposed to be provided but are not, and they can issue punishments for lockouts.
Nearly a quarter-million local renters are now shielded with the ordinance. Rights violations are common for low-income individuals. Some landlords have been accused of taking advantage of people who do not have the means to move forward with an extended protest or are unaware of their rights.
Buildings in which the owner resides and have six units or less are exempt from the ordinance. Also, single-family residences where the owner or a relative of the owner lives are exempt. Landlords have some leeway to repair a problem in two business days and avoid a lawsuit. The ordinance goes into effect on June 1.
Tenant rights have become even more critical
Now more than ever, tenants need to understand their rights. The pandemic has placed many people who were not in the unfamiliar situation where they are suddenly concerned about their housing status and if they faced eviction or other problems due to late rent. This ordinance provides a respite to some of the challenges renters were facing. There are other laws in place to protect them. When there is a landlord-tenant dispute, tenants should be protected and have guidance and advice from experienced legal professionals who have their interests in mind.]]>On Behalf of Whiteman LLC<![CDATA[The need for experts in a home construction defect case]]>https://www.whitemanborden.com/?p=470572021-05-25T16:49:51Z2021-03-29T16:49:26Zconstruction defects.
Proving fault in a construction dispute
You may have to initiate a lawsuit against the contractor, in which case, you will need to prove the existence of the defect, that the contractor caused the defect, and the damages relating to that defect.
This may require the use of other contractors and other individuals as experts. The type of expert depends on the defect. You may need a building code expert if the construction was not up to code. You may need an expert on the materials used, or one experienced in the manner of constructions.
Construction defects can ruin what may have started out as an exciting building project. Be careful about how you choose a contractor. Vet them by examining on line reviews, interviewing references, and examining past projects. If a dispute arises, make sure to obtain competent legal representation who will help you prove your case with the correct experts.]]>On Behalf of Whiteman LLC<![CDATA[After a year of lows, foreclosure rate increases]]>https://www.whitemanborden.com/?p=470292021-03-22T15:33:51Z2021-03-22T15:33:51Zrise of 16 percent. So far in 2021, the hardest hit states have been Utah, Delaware, Florida, Illinois, and Louisiana.
This uptick has come as many pandemic relief measures, such as mortgage forbearance and foreclosure moratoriums, are still in place. For this reason, some have been surprised by the development.
"[L]oans on commercial properties, investment properties, and properties that are vacant and abandoned do not always have the same protections. This could be why we're seeing a slight increase in foreclosure starts despite the government programs," Rick Sharga, executive Vice President of RealtyTrac, told the Motley Crew.
It’s not clear whether the trend will continue. It’s important to note that the foreclosure rate over the last 12 months is still incredibly low. Furthermore, an additional influx of stimulus cash is on the horizon which may prop up many distressed properties.
Protect what you’ve built
It takes years of hard work and saving to buy a home. For this reason, getting a notice of foreclosure is a devastating experience.
However, even if you’re foreclosed upon, you still have rights. The first step in ensuring those rights are protected is hiring an experienced foreclosure defense attorney. They can guarantee that the mortgage company and creditors abide by the law throughout the process.
If cost is a concern, many attorneys offer a free initial consultation at no out of pocket cost to the client.
]]>On Behalf of Whiteman LLC<![CDATA[What is a quiet title action, and when may you need to file one?]]>https://www.whitemanborden.com/?p=470152021-03-19T00:12:54Z2021-03-02T01:12:09Zquiet title action.
What is a quiet title action?
A quiet title action is a type of lawsuit. The intention of such claims is to settle the title to the property by removing the claim or objection uncovered through the title search where title ownership is in question. If successful, the plaintiff will be awarded full possession of the property and will be protected from future claims of ownership of the property.
When might a quiet title action be necessary?
Quiet title lawsuits are common when ownership of the property is disputed. For example, there may be a mortgage lender dispute, in which the lender’s interest in the property was not properly handled. In addition, the title owner may have died and there may be questions regarding the notification to the owner’s heirs of the sale. Or there could be a case of adverse possession in which a third party is occupying the property even if it is not legally theirs, with the intent of laying claim to the property. Finally, the property may have been unoccupied for a long time period, allowing third parties to bid on the purchase of the property.
Learn more about real estate litigation in Chicago
Ultimately, this post is for educational purposes only and does not contain legal advice. Those who want to learn more about property litigation are invited to explore our firm’s website for further information on this topic.
]]>On Behalf of Whiteman LLC<![CDATA[Overcharging and Kickbacks]]>https://www.whitemanborden.com/?p=469662021-04-01T21:15:07Z2021-02-15T17:24:37ZAdam@WhitemanBorden.com – (312) 655-1000]]>On Behalf of Whiteman LLC<![CDATA[Resolving mechanic’s lien disputes]]>https://www.whitemanborden.com/?p=469902021-05-25T16:47:35Z2021-02-02T22:02:47ZWhat is a mechanic's lien?
A mechanic's lien is a legal claim against a piece of property. Subcontractors use them as a way to make sure they are paid for their work. If the contractor refuses to or is unable to pay the subcontractor, the lien gives the subcontractor a legal interest in the property, which means they can be compensated for their work through a share of the proceeds when the property is sold.
Liens can be established during the construction of the property, or later during a remodel.
Unfortunately, some homebuyers and sellers are unaware of a lien until they are well into the process of transferring ownership. Learning that someone has a lien on the property can throw complex negotiations into turmoil.
Illinois protections
Illinois law provides some protections to homeowners that can help them avoid problems with mechanic's liens. When contracting with builders and remodelers, homeowners can request a complete list of all persons supplying labor and materials. All these people must respond.
The homeowner can then request a lien waiver from all the concerned parties. By signing the waiver, the parties give up their right to place a lien on the property.
Fixing problems after the fact
Those who need help with lien issues should seek out the assistance of a real estate attorney with experience in mechanic's lien issues.]]>On Behalf of Whiteman LLC<![CDATA[The downside of the eviction moratorium]]>https://www.whitemanborden.com/?p=470542021-05-25T16:50:14Z2021-01-20T19:18:12ZAn unforeseeable risk for investment properties
The appeal of a residential rental property is undeniable. If the building is in fair condition, it is a safe, steady way to build equity and earn rental income. While every property owner has headaches, the benefits vastly outweigh the difficulties.
The coronavirus pandemic upended that revenue model. Many smaller landlords, those with one or two rental properties, now find that they’ve lost the ability to pay their multiple mortgages. In one notable case, a property owner reports that her tenants refused to pay their rent and mocked her over the situation.
What does this mean for renters and landlords?
As of this writing, on April 1st the moratorium on evictions ends. No one knows what will happen at that point. What we do know is that the recently passed stimulus package includes 25 billion for rental assistance. That amount equals what is own collectively in back rent, but dispersal across the county and here in Illinois has been stalled.
When the moratorium ends, there’s likely to be a “rush” on eviction notices. That rush might stress the system in unexpected ways causing further issues.
Fears for the future
Owners of rental properties had no way of seeing the coronavirus pandemic coming. However, now that it has come, they will have to worry about something like this in the future. Some expect that landlords will raise their requirements for credit history and backgrounds for new tenants as a response.
Whatever the future, property owners of all sizes will need to assess their legal options to protect their investments against possible future catastrophes.]]>