Blog : Services We Provide

Michigan Court of Appeals affirmed Parmenter O’Toole’s trial court victory

Michigan Court of Appeals affirmed Parmenter O’Toole’s trial court victory.  Parmenter O’Toole was retained to defend several clients who were involved in state court litigation regarding stock redemption agreements.  The stockholders who were redeemed later claimed fraud and forgeries.  The trial court judge dismissed the plaintiffs’ claims and plaintiffs filed an appeal to the Michigan Court of Appeals.  In a 2-1 opinion, the appellate court ruled in favor of Parmenter O’Toole’s clients.

Veterans Aid and Attendance

VA Benefits: What is Aid and Attendance?

Aid and Attendance is a monthly pension benefit available to qualifying Veterans and surviving spouses of qualifying Veterans who need the aid and attendance of another person to perform the personal functions required for daily living.  This brochure contains information about the Aid and Attendance qualification requirements, the dollar amount of benefits currently available and how to begin the process for filing a claim.

For information on Aid and Attendance, please download our brochure.

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Estate Administration

Beneficiary Designation

We understand that losing a loved one can be extremely difficult.  In addition to being emotionally and physically draining, you suddenly have the responsibility of finalizing your loved one’s estate.  The concept of “estate administration” can be overwhelming and it is difficult to determine what to do first.  The information contained in this brochure may be helpful as an initial guideline.

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Why Should I Register A Copyright?

Copyright Protection:

What is a Copyright?

A copyright is the protection created under the United States Copyright Act which protects “an original work of authorship.” Copyrights protect music, photographs, video, films, works of art, software, buildings, and architectural drawings when they are put into a fixed form that can be copied and distributed.

What are the Advantages to Registering a Copyright?

A Copyright exists when the work is created by the author. It is created when it is in a form that can be copied and distributed to others. This “common law” copyright protects the author’s creation against unauthorized copying. However, the US Copyright Act preempts the enforcement of common law copyrights. Therefore, in order to sue to enforce the author’s copyright in his or her work, the copyright must be registered with the US Copyright Office. The following are advantages of registering your copyright:

  • You can immediately sue to enforce your copyright in your work;
  • You may be entitled to attorney fees;
  • The presumption that the registered owner’s copyright in the work is valid;
  • You can record your registration with US Customs and Boarder Protection to stop infringing products from entering the US.

Who is the Owner of the Copyright in a Work?

Generally, the author is the owner of copyright. If there are multiple authors, they may share the copyright and there may be several layers of copyrights in a work. For example, if one individual writes the text to a book and another does the illustrations, the author of the text owns that copyright in the text and the illustrator owns the copyright in the illustrations.

Ownership of a copyright right will reside in one who is not the author only:

  1. if the copyright has been assigned,
  2. if the work is a “work made for hire,” or
  3. the copyright is transferred by law, such as by will, descent, or bankruptcy.

A “work made for hire” is defined as:

  1. a work prepared by an employee within the scope of his or her employment; or
  2. a work specially ordered or commissioned in a signed writing for use as:
    • contribution to a collective work
    • a part of a motion picture or other audiovisual work
    • a translation
    • a supplementary work
    • a compilation
    • an instructional text
    • a test
    • answer material for a test
    • an atlas

Courts have ruled that this definition is narrow. Even if the parties expressly agree in a written instrument that the work shall be considered a work made for hire, it may be determined by the court that the work is not one of the defined “works made for hire” as described in the statute. Therefore, care must be taken to make sure all rights are assigned to the correct party in writing.

Protection of copyrights based on several levels of the same work can be complicated. When multiple individuals are involved in the creation of the work, various levels of ownership need to be discussed and reviewed carefully. It is important to have an experienced copyright attorney involved throughout the process of creating the work to highlight any issues early in the process. This can save you headaches and money in the long run.

Our intellectual property lawyers take the time to assess, discuss, and guide you through copyright ownership, licensing copyrights, copyright royalties, confidentiality agreements, and, when necessary, copyright litigation. An original work of authorship often represents years of hard work. Securing that work with copyright protection is essential to protect your rights.

If you have questions regarding copyrights or other intellectual property, please contact Jeffery Jacobson.

Residential Home-building Exempt from Michigan Consumer Protection Act

The Michigan Supreme Court in Liss v. Lewiston-Richards, Inc. issued a very important and favorable decision for residential homebuilders in the State of Michigan. After the Court’s decision in Liss, residential homebuilders are no longer subject to a homeowner’s claim that the builder’s actions violated the Michigan Consumer Protection Act.

The Consumer Protection Act prohibits “unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce.” Builders would inevitable be faced with a Consumers Protection Act claim, in addition to a breach of contract claim, when litigation was pursued by a homeowner, because the Consumers Protection Act would allow a homeowner to recover both actual damages and reasonable attorney’s fees from the builder.

Seven years ago in Forton v. Laszar, and again two years ago in Hartman & Eichhorn Building Company, Inc. v. Dailey, the Michigan Court of Appeals allowed for homeowner recovery of attorney fees for a successful claim against the builder under the Consumer Protection Act. However, the Consumers Protection Act includes an exemption for any “transaction or conduct specifically authorized under laws administered by a regulatory board or officer acting under statutory authority of this state.

In Liss, the builder was faced with a Consumer Protection Act claim from the homeowner for failure to complete construction on time and in a workman-like manner. Agreeing with the builder’s argument that Forton and Hartman were wrongly decided because of the above exemption, the Michigan Supreme Court held that because the Michigan Occupational Code requires residential builders be licensed and regulates the builder’s activities, any residential building activity that requires the builder to be licensed is exempt from the Consumer Protection Act.

This is an important decision for residential homebuilders because homeowners no longer have the superior position of being able to threaten the builder with the recovery of attorney’s fees upon a successful Consumers Protection Act claim.

The comments in this article are not intended to be a substitute for legal guidance or advice for a specific situation.  You should obtain informed legal counsel to assist in your decisions relating to any issues which may be raised in this article.

Show Me the Money! – Michigan Law Helps Contractors Get Paid

The Michigan Construction Lien Act (CLA) states that those who provide improvements to real property by providing services, labor, or materials have a lien against the property to secure payment for the improvements so long as the requirements of the CLA are followed.  This means that if a lien is properly placed on the property and the individual or company that provided the services, labor, or materials is not paid, the individual or company may pursue a foreclosure action against the property.  If successful in the foreclosure, the result is a forced sale of the property and payment for the improvement from the proceeds of the sale.  This can often prove to be an invaluable remedy in situations where the homeowner refuses to pay for the improvement or the general contractor has absconded with the homeowner’s payments.

The homeowner and persons with competing security interests may be unaware of other claims against the property.  Therefore, it is important to strictly adhere to the time, notice and filing requirements contained in the CLA in order to “perfect” a lien and establish priority over other creditors.  The following is a brief overview of the steps that must be taken upon entering into a contract to provide labor or materials in order to perfect a construction lien:

Prior to Performing Work or Providing Materials:

Subcontractors and suppliers who do not have a contract directly with the owner must mail a Notice of Furnishing by certified mail to the owner or lessee and the general contractor, or deliver it in person, no later than 20 days after first providing labor or materials.  The corresponding Proof of Service of Notice of Furnishing must also be sent along with the Notice of Furnishing.  If the notice is not sent out within the 20-day period, any payment from the owner to the general contractor that is earmarked for a subcontractor may reduce the subcontractor’s lien amount.

Upon Completion of Work or Provision of Materials:

A Claim of Lien must be recorded with the Office of the Register of Deeds (in the County where the property is located) within 90 days from the last day of furnishing significant labor or materials to the job.  The Claim of Lien must have attached to it a Proof of Service of Notice of Furnishing.  Additionally, within 15 days of the date of recording the Claim of Lien, the Claim of Lien must be served, personally or by certified mail, on the owner or a designee named in the Notice of Commencement along with any Proof of Service attached to the Claim of Lien. If these steps are properly followed, the Claim of Lien will be “perfected.”

Following Perfection of a Construction Lien:

If the lien claimant has not been paid after the Claim of Lien has been perfected by following the procedures above, a construction lien foreclosure lawsuit must be filed within one year from the date of recording the Claim of Lien.  The lawsuit must be filed in the Circuit Court where the property is located.  The lawsuit will foreclose on the construction lien, force the sale of the property and, with any luck, pay for the labor and materials provided from the proceeds of the sale.

Special Warning for Residential Construction Contracts:

A contractor has no right to a lien against a residential structure unless the improvement has been made pursuant to a written contract.  Any changes to the contract must also be in writing.  The contract is also required to have a variety of warnings to the homeowner concerning the contractor’s licensing information.  If a contractor provides an improvement to the property without having the necessary written contract, the contractor will not be permitted to foreclose on its Claim of Lien.

The CLA can be the best friend to a contractor, subcontractor or supplier who has not been paid on a construction project.  However, the CLA is a complicated act, fraught with pitfalls for the unwary contractor.  If you have not been paid on a construction project and are interested in the remedies provided by the CLA, you should contact your attorney.

* Douglas Winkle is an associate attorney with Parmenter O’Toole in Muskegon, Michigan.  Parmenter O’Toole is a full-service business and real estate law firm with extensive experience in the area of construction law.  The comments in this article are not intended to be a substitute for legal guidance or advice for a specific situation.  You should obtain informed legal counsel to assist in your decisions relating to any issues which may be raised in this article.  For additional information regarding the above topic, or any other legal issues you may have, Mr. Winkle can be reached at (231) 722-1621 or djw@parmenterlaw.com.

Can Falling Real Estate Prices Help You?

It’s that time of year again!  You should be receiving or have received your property tax assessment notice in the mail.  Your tax assessed value is based on half the value of your property.  If you do the math, you may be in the situation that the market value of your property in this depressed real estate market is less than the value used to determine your tax assessment.

So what can you do to fix this problem and take advantage of the downside of the market to save some taxes this year and going forward?

Your assessment notice should include instructions on appealing your assessment. You may loose your right to appeal the assessment if you do not follow the proper procedure.  If you believe that your assessed value is greater than 50% of the value of your residential property, you must request relief first from the assessor in some jurisdictions, and in others, the Board of Review.  Your assessment notice should state the proper procedure, and you should confirm that procedure with your local assessor’s office.

Beginning in 2007, an appearance at the local Board of Review is no longer required for most business property.  However, you should confirm this requirement with your attorney for your particular property before skipping the Board of Review.

If you go to the Board of Review to appeal your tax assessment, a written determination by the Board of Review must be provided to taxpayers.  If you have not received your determination by May for business property, or June for residential property, you may want to file an appeal with the Tax Tribunal to protect your appeal rights.  The deadline for filing a petition with the Michigan Tax Tribunal is May 31 for most business property and July 31 for agricultural and residential property.

What should you show the Board of Review to help your case for lowering your assessment?

Your recent purchase of your property at a purchase price that is below 50% of the assessed value is good evidence that the true cash value of your property has decreased.

You may also obtain an appraisal of your property which compares similar properties to show that the value of your property has decreased. Also, the State Tax Commission has issued bulletins to address single year sales studies and foreclosures in valuing real property.

Even if you do not appeal your assessed value, it may be worth looking over the property card on file with your local assessor to confirm that all the information is correct.  Mistakes on the property card, such as incorrect square footage, can affect the assessed value of your property.

* Jeff Jacobsonis an associate attorney with Parmenter O’Toole in Muskegon, Michigan.  Parmenter O’Toole is a full-service business and real estate law firm with extensive experience in the area of construction law.  The comments in this article are not intended to be a substitute for legal guidance or advice for a specific situation.  You should obtain informed legal counsel to assist in your decisions relating to any issues which may be raised in this article.  For additional information regarding the above topic, or any other legal issues you may have, Mr. Jacobson can be reached at (231) 722-1621 or jaj@parmenterlaw.com.

Seller Disclosure Requirements for Residential Property

In general, a seller of residential property must give prospective buyers a disclosure statement before the purchase agreement is signed, and the seller must disclose the presence of known lead-based paint in the house.

Seller Disclosure Act

The seller must provide the buyer with a disclosure statement in the statutorily required form, which includes disclosure of 1) the condition of all major appliances, systems and services, 2) the general condition of the property, including basement and roof leaks, 3) infestations, 4) underground storage tanks, 5) pending litigation, and 6) the seller’s length of ownership.  In addition, the seller must immediately disclose any changes to the structural, mechanical or appliance systems of the house after the date of signing the disclosure statement.

If the seller fails to provide a disclosure statement before the buyer signs a purchase agreement, the buyer has the right to void the purchase agreement.  While a buyer’s rights under Michigan’s Seller Disclosure Act end upon closing of the property, the buyer may still have a fraud or negligence action against the seller for statements made in the disclosure.

Lead-Based Paint Disclosure

Before a buyer executes a purchase agreement, the seller must provide an EPA-approved hazard information pamphlet, disclose the presence of known lead-based paint, and give the buyer at least 10 days to conduct a risk assessment or inspection for lead-based paint.

The lead based paint disclosure requirements only apply to houses built before 1978, and a seller is not required to conduct any evaluation of lead-based paints or hazards.

While the violation of lead-based paint disclosures do not affect the validity of a sale, there are significant civil and criminal penalties if a buyer discovers that a seller knew of lead-based paint hazards and did not make a disclosure.

 

Protecting the Vulnerable Adult

Recent articles in area newspapers advise us that financial exploitation of vulnerable adults is on the rise, and billboards on the highways advise us to protect the vulnerable adult. Michigan’s current economic conditions may push even the most “trustworthy” person to commit crimes against unsuspecting vulnerable adults. You should be aware of those certain adults that are vulnerable and how you may help.

A vulnerable adult is a person age 18 or over who is in need of protection because of advanced age, physical disability or mental illness. The vulnerable adult is unable to  provide for their own personal care or to manage their property.

Perhaps you are this vulnerable adult and you are afraid to ask for help. Perhaps your parent is a vulnerable adult and you are afraid to offer your assistance for fear of taking away their independence.

Society understands that everyone wants to maintain their independence. And we also understand that people are reluctant to interfere if they just suspect that someone may need assistance. But if you have reasonable cause to believe that a vulnerable adult is in danger you should get involved.

If you have reasonable cause to believe that a vulnerable adult is in danger you may contact the police or the Family Independence Agency in your community. A verbal report to the Family Independence Agency is sufficient to begin an investigation of suspected abuse, neglect or exploitation.

There also are steps a person can take before they become a vulnerable adult. A person can sign a Durable Power of Attorney while still able to make their own decisions. The Durable Power of Attorney is a document that gives another person the power to act for you to assist with your finances and daily living activities. It provides for management of your property when you are not able to make decisions on your own. Parmenter O’Toole can help you with the preparation and signing of this document.

* Nancy Ann Hornacek is an associate attorney with Parmenter O’Toole in Muskegon, Michigan.  Parmenter O’Toole is a full-service business and real estate law firm.  The comments in this article are not intended to be a substitute for legal guidance or advice for a specific situation.  You should obtain informed legal counsel to assist in your decisions relating to any issues which may be raised in this article.  For additional information regarding the above topic, or any other legal issues you may have, Ms. Hornacek can be reached at (231) 722-1621 or nah@parmenterlaw.com.

Estate Administration

To Lease or Not to Lease

With the current state of the economy and soft real estate market, many people may be tempted to supplement their income through rental property.  While a consistent tenant may provide an excellent source of additional income and a means to build equity in a home, there are many issues one must consider before he or she embarks on a landlord-tenant relationship.

Whether the tenancy is for a fixed-term or for an indefinite duration, i.e. a month-to-month tenancy, a landlord should have a written lease memorializing the relationship.  The lease may be used to resolve misunderstandings that arise during the term of the lease.  A residential lease agreement should include: (1) the name and signature of the landlord; (2) the name and signature of the tenant; (3) the rental amount to be paid, the frequency of payments and when and where it is to be paid; (4) the address of the rental property; (5) the starting and ending dates if it is a fixed-term tenancy; (6) the landlord’s mailing address; (7) the amount of the security deposit, if any; (8) the name and address of the financial institution holding the security deposit; (9) notice of the tenant’s obligation to provide a forwarding address to the landlord within 4 days of terminating the tenancy; (10) who is responsible for paying the utilities; (11) repair and maintenance responsibilities; (12) eviction procedures; (13) any other terms and conditions that the landlord and tenant agreed to; and (14) the following statement must be provided in a prominent place in the lease, in at least 12-point font size: “NOTICE: Michigan law establishes rights and obligations for parties to rental agreements.  This agreement is required to comply with the Truth in Renting Act.  If you have a question about the interpretation or legality of a provision of this agreement, you may want to seek assistance from a lawyer or other qualified person.”

If a landlord intends to collect a security deposit from the tenant, the security deposit may not exceed 1½ month’s rent.  At all times, the security deposit remains the lawful property of the tenant.  The security deposit must be deposited into a regulated financial institution (e.g. bank) OR the landlord must deposit a cash bond or surety bond, to secure the entire deposit, with the Secretary of State.  Note: If the landlord does the latter, he or she may use the money at any time for any purpose.

Within 7 days from the date the tenant moved in, the landlord should require the tenant to complete an inventory checklist noting the condition of the rental unit.  Within 14 days from move in, the landlord must provide the tenant in writing: (1) landlord’s name and address for receipt of rent and communications; (2) where the tenant’s security deposit will be held; and (3) a notice in 12 point boldface type which is at least 4 points larger than the body of the notice or lease agreement which states: “You must notify your landlord in writing within 4 days after you move of a forwarding address where you can be reached and where you will receive mail; otherwise your landlord shall be relieved of sending you an itemized list of damages and the penalties adherent to that failure.”

After the tenant moves out, the landlord should complete a termination inventory checklist, noting the condition of the rental unit.  Within 30 days of the tenant’s move out, the landlord must mail to the tenant an itemized list of damages with the following statement in 12 point boldface type which must be at least 4 points larger than the body of the notice: “You must respond to this notice by mail within 7 days after receipt of same, otherwise you will forfeit the amount claimed for damages.”  Note: only unpaid rent, unpaid utility bills and damages to the rental unit beyond reasonable wear and tear caused by the tenant may be claimed against the deposit (not cleaning fees).  Along with the notice of damages, the landlord must mail the balance of the security deposit to the tenant.  If the tenant disputes the amount of damages claimed, the landlord must, within 45 of the move out, file a lawsuit against the tenant for damages in order to be entitled to keep the disputed amount of the security deposit.  If the landlord fails to follow the foregoing procedures, the landlord may waive the damages claimed and the landlord may actually be liable to the tenant for two times the amount of the security deposit.

While rental property can be an excellent source of income, there are many issues that must be taken into consideration in a landlord-tenant relationship.  If you are considering leasing property, you should have your attorney draft a lease for you and have him or her assist you with the move-in and move-out procedures to assure compliance with the law.

* Douglas Winkle is an associate attorney with Parmenter O’Toole in Muskegon, Michigan.  Parmenter O’Toole is a full-service business and real estate law firm with extensive experience in the area of landlord/tenant law.  The comments in this article are not intended to be a substitute for legal guidance or advice for a specific situation.  You should obtain informed legal counsel to assist in your decisions relating to any issues which may be raised in this article.  For additional information regarding the above topic, or any other legal issues you may have, Mr. Winkle can be reached at (231) 722-1621 or djw@parmenterlaw.com.