Posts from: April 2016

Water Leaks in Condominiums–Who is Responsible for Repairs?

Water leaks are one of the most common causes of disputes between condominium owners. Water can travel between condominium units and cause significant damage to multiple units and association common areas in a short period of time. While common sense may dictate that the owner of the unit the leak originated from is responsible to pay for any resulting water damage, the condominium governing documents and applicable laws often provide otherwise.

Many factors are involved in determining who is liable for water leaks, including the cause of the damage, the association’s declaration and bylaws, and the insurance carried by the association and unit owners.

Generally, a unit owner is not responsible for damage to a neighboring unit unless the owner failed to take reasonable care in maintaining their unit or acted negligently or intentionally. For example, a unit owner would be liable for damage caused by his failure to fix a slow leaking pipe, but would not be responsible for damage caused by major storm that results in a leak from the unit. The condo association declaration, however, can expand a unit owner’s liability and could require that unit owners obtain insurance for damage to another unit caused by the unit owner’s negligence, or regardless of any negligence.

Due to the fact that all association declarations are different and that the situations in which water damage to a unit arise are different, a condominium association or unit owner should contact legal counsel in addition to their insurance carrier to determine how to handle each situation.

If you have any questions regarding your condominium association governing documents or a water leak in your condominium , please contact:

Kristen E. O’Neill at: or 312-368-0100.

Powers of Attorney v. Guardianship: How They Interact

Powers of attorney are an essential piece of the estate planning puzzle.  There are two types of powers of attorney in Illinois.  A “power of attorney for property” appoints an agent to make financial decisions for the principal; meanwhile a “power of attorney for health care” appoints an agent to make day to day living and health care decisions for the principal.  In an estate planning context, powers of attorney are usually used to ensure someone you trust is in place to make the difficult decisions that, due to unfortunate circumstances, you are not capable of making yourself.

But powers of attorney are revocable by the person making the power of attorney, at any time.  755 ILCS 45/3 et seq.  So, what happens when someone slowly loses the ability to make his or her personal and financial decisions and does not realize it?

This is all too common in the case of someone suffering from dementia.  The person executes a power of attorney (let’s call him Steve) while still fully cognizant and appoints an agent (let’s call her Sally) to act for him in the event he becomes disabled.  But now Steve has slowly lost the ability to make decisions, and is unable to recognize the extent of his own decline.  Steve wants to continue living alone but he is unable to safely do so, and Sally finds herself in conflict with Steve over what is in his best interest.  Or alternatively, problems could arise if Sally decides that Steve should continue to live alone, when it is not in his best interest.

Under such circumstances, a guardianship may be necessary.  As noted above, Steve may revoke the power of attorney at any time, even if he no longer as capacity to make his own decisions.  The law provides that any interested person, including the agent under the power of attorney, may petition the court to construe the power of attorney and review the agent’s conduct under the power of attorney.  755 ILCS 45/2-10. Depending upon the court’s findings, the court may uphold the power of attorney or revoke the agency.  If the court revokes the agency and finds that the holder of the power of attorney disabled, upon appropriate petition, the court will likely appoint a guardian.  The guardian will have the authority and responsibility of making the personal and financial decisions for the disabled adult under the watchful eye of the court.

Using our example above, if Steve advised others that he orally revoked his power of attorney and Sally feared for Steve’s safety, Sally could petition the court to have herself appointed as Steve’s guardian. Likewise, if another interested party (including Steve) believed that Sally was not acting in Steve’s best interest under the power of attorney, that party could petition to revoke the powers and appoint a different person as Steve’s guardian.

If the principal and the agent are acting harmoniously under the power of attorney, it is a preferable arrangement to guardianship.  If the disabled adult has any assets, Guardianship comes with considerable additional financial burdens, including the entry of a probate bond, guardian ad litem fees and attorney’s fees related to administration of the estate.  However, when the principal under the power of attorney and the agent disagree as to what is in the principal’s best interest, or if an interested party believes that the agent is not acting in the best interest of the principal, then a guardianship proceeding may be necessary to either appoint a guardian or to give the agent the authority he/she needs to keep acting in the best interest of the principal.

If you would like to learn more about the adult guardianship process or if you need assistance preparing an estate plan, please contact:

Robert G. Cooper at: or 312-368-0100.

Employee Bound by Handwritten Note Settling Employment Discrimination Case

People are often encouraged to “put it in writing”.  Generally, that is an excellent idea.  But occasionally it may be a disadvantage, especially if what was thought to be an informed memorandum turns out to be a definitive settlement agreement.

Martina Beverly sued her former employer, Abbott Laboratories, for employment discrimination.  The parties agreed to mediation.

The Mediation session lasted fourteen hours with each party being represented by an attorney.  Toward the end of the mediation, Beverly, as well as an Abbott representative and both parties’ attorneys signed a handwritten memo that read as follows:

I Jon Klinghoffer will commit that my client will communicate to its internal business client the fact that Abbott/AbbVie has offered $200,000 + Abbott/AbbVie pays cost of mediation to resolve this matter and that Martina Beverly has demanded $210,000 + Abbott/AbbVie pays cost of mediation to resolve this matter. Both parties commit [sic] that their offer and demand will remain open until Tuesday, July 22, 2014, 3:00 PM central.

The next day, Abbott’s attorney sent an email to Beverly’s attorney agreeing to accept Abbott’s $210,000 offer and attaching a formal settlement agreement for review.  Almost immediately, Beverly’s attorney emailed an enthusiastic response and, concurrently, sent the settlement agreement to Beverly for her review.

Beverly ultimately refused to sign the formal settlement agreement and Abbott went to court to enforce the hand written agreement.

Abbott asserted the handwritten agreement contained an offer, Abbott’s acceptance and a meeting of the minds.  Beverly claimed the handwritten agreement was simply a preliminary memorandum that a contemplated the drafting and execution of a formal settlement agreement.

The court ruled that Beverly was bound by the handwritten document because it set forth all of the essential terms of the settlement and because both parties and their respective attorneys had signed it.

Although Beverly argued the handwritten agreement omitted a number of material provisions such as identification, future cooperation between the parties, Beverly’s future employment options with Abbott, the allocation of the $210,000 between back pay (which is taxable) and damages, (which was not) and any language regarding waiver and release, that made it unenforceable, the court ruled a contract may be enforced even if some contract terms are missing or are left to be agreed upon at a future date.

This case demonstrates that when parties are engaged in efforts to resolve a disputed matter they should approach with great caution a rush to produce an informal memorandum of understanding.  It may have a legal significance that transcends their expectations when they signed it.

If you have any questions in this area, please contact:

Michael L. Weissman at: or 312-368-0100.


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