Tag: commercial

Are Your Business E-Mail Messages Legally Compliant?

Overview:

You may have heard of The Can-Spam Act (“Can-Spam”), but if your business engages in email marketing, you must understand the requirements and put processes in place for compliance.  Can-Spam is a federal law that establishes requirements for all outbound commercial messages, regardless of whether they are B to B (business to business) or B to C (business to customer) messages.  The Act also provides recipients the right to have you discontinue your emails to them, which is referred to as an “opt-out” provision.   Finally, it instills high penalties for non-compliance.

Requirements:

The main requirements of Can-Spam are as follows:

  1. Header or subject line information must NOT be misleading.
  2. The subject line must be an accurate descriptor of the content of the message.
  3. Clear and Conspicuous identification that the message is an ad.
  4. Recipients must be provided your address.
  5. You must include an Opt-Out mechanism to avoid future messages.
  6. Opt-out requests must be honored promptly (i.e. within 10 business days).
  7. If you hire another company to handle your e-mail marketing, you are responsible for their compliance with Can-Spam.

Penalties for Non-Compliance:

Each separate email message that does not comply with Can-Spam may be the subject of up to $40,000 or more in penalties, and multiple people may be responsible for violations.  Therefore, both the company whose product or service is being advertised and the marketing company who originated the message may be legally responsible for violations.  In addition to the requirements of Can-Spam, commercial email messages must comply with other laws as well.  For example, if the content is deceptive or misleading information about a product, then the sender may be in violation of the FTC Act and/or other state laws regarding false and deceptive business practices.  Further, impersonation or the unauthorized use of the sender’s computer or system or other such acts are subject to criminal penalties.

Not all commercial messages require compliance with Can-Spam.  Only those messages whose primary purpose is commercial in nature.   For instance, emails to customers concerning their order, or other already agreed-to transaction with your company will avoid the necessity to comply with Can-Spam as they are viewed as relationship or transactional messages.  However, oftentimes a business will send a message that combines elements of transactional or relationship content with commercial content.  At that time, it is important to consult with an attorney for guidance as to whether such a message must comply with Can-Spam or if the message would not fall under the purview of Can-Spam.

If you have any further questions or wish to inquire about our fixed-fee advertising clearance services, please contact:

Natalie A. Remien at:

(312) 368-0100 or nremien@lgattorneys.com.

Engineering Work That Does Not Enhance the Value of the Subject Property Can’t Be the Basis of a Mechanic’s Lien Claim

In Christopher B. Burke Engineering, Ltd. v. Heritage Bank of Central Illinois, 2015 Ill. App. (3d) 140064 (January 27, 2015), the issue presented to the Illinois Appellate Court was whether certain engineering work on a construction site qualified for a mechanic’s lien claim under the Illinois Mechanic’s Lien Act (the “Act”).  The Court ruled that it did not.

The facts of the case are as follows. Burke was hired by Glen W. Harkins and Carol A. Harkins (collectively, the “Harkins”) to perform engineering work on real estate the Harkins proposed to purchase and subdivide for residential development.  The Harkins did, in fact, purchase the property and retained Burke to prepare the final plat of subdivision.  The record indicated Burke had performed “lot work” for the one house built in the subdivision as well as engineering work for the planning of sewers and roads on the property. Heritage Bank had a mortgage on the subject premises and became a defendant when Burke sought to foreclose on its claim of a mechanic’s lien. See Christopher B. Burke Engineering, Ltd. v. Harkins, 2011 Ill. App. (3rd) 100949-U (December 29, 2011).

On the issue of whether Burke’s engineering work could be the basis of a mechanic’s lien claim, the Court noted that Section 1(a) of the Act, 770 ILCS 60/1(a), calls for the contracting party claiming a lien to demonstrate that his services improved the property. The Court said that since mechanic’s lien claims were not recognized at common law, they were to be strictly construed and, “[i]n determining whether a mechanic’s lien is valid, a court focuses on whether the work performed actually enhanced the value of land”. Continuing, the Court stated that Burke had not produced a single case “. . . in which the recording of a final plat as the result of an engineering company’s work was found to enhance the value of land and we have likewise found no such case”. Christopher B. Burke Engineering, Ltd., 2015 Ill. App. (3d) 140064, ¶18.

The Court held that “the services provided by [Burke] for the Harkins defendants in fact did not constitute an improvement to the property under the Act.” See Id.

A dissenting opinion stated that the majority had erred because the issue was whether Burke’s services were provided for the purpose of improving the subject property.  The same dissenting opinion also noted that preliminary engineering work “was performed for the purpose of improving property”. See Id. at ¶39.

On May 27, 2015, the Supreme Court of Illinois granted the Burke’s petition for leave to appeal. Therefore, until the Supreme Court of Illinois holds to the contrary, although the Mechanic’s Lien Act has, since 1951, included professional engineers and land surveyors, such claimants must still prove their efforts enhanced the value of the land in order to have a mechanic’s lien claim.

To discuss mechanic’s lien claims relating to commercial or residential real estate, please contact:

Michael L. Weissman at:

mweissman@lgattorneys.com or 312-368-0100

or

Jeffrey M. Galkin at:

jgalkin@lgattorneys.com or 312-368-0100

Recent Illinois Supreme Court Case Clarifies That Prescriptive Easements Do Not Require Exclusive Possession

An easement is a right or privilege to enter and use land which is in possession of another. For example, if there are two parcels of land, owned by two separate property owners and one of the properties does not have access to the road, the property owner of the accessible land may grant the owner of the non-accessible land an easement to use a particular portion of the accessible property to reach the road. Another example is when a utility company desires particular access on, or over, or under a piece of property, the property owner will grant the utility company an easement. There are various types of easements, including express easements (which may be “granted” or “reserved” in a deed or other legal instrument), implied easements (which courts typically determine when there is a claim brought, and which involves an analysis of the intentions of the parties and takes into account the practices and customs for the use of the property) and easements by necessity (situations where a court determines if the easement is absolutely necessary, e.g., where a property is completely without access to a public way).

There is another kind of easement, an easement by prescription – which is the subject of the Illinois Supreme Court’s September 18, 2014 decision in Nationwide Fin., LP v. Pobuda, 2014 IL 116717, reh’g denied (Nov. 24, 2014). The plaintiff, Nationwide Financial, LP (“Nationwide”) became the owner of a parcel of land which was adjacent to a lot owned by the defendants, the Pobudas (the “Pobudas”). The Pobudas alleged that they consistently traveled over the northwest corner strip of Nationwide’s newly acquired property during the 22 year period prior to Nationwide’s ownership of the property. The prior owner had observed them using the strip and never raised an issue. Nationwide filed suit against the Pobudas, seeking a declaratory judgment that the Pobudas’ use of the strip amounted to trespass and the Pobudas’ counterclaimed, alleging that they enjoyed a prescriptive easement to travel over the strip.

According to the Court,  for the Podudas’ to establish an easement by prescription, “the use of the way in question must have been—for a 20-year period—adverse, uninterrupted, exclusive, continuous, and under a claim of right. Nationwide argued to the Court that the Podudas were required to prove that they “exclusively used” the easement property and “altogether dispossessed” the titleholder for the 20-year period. The concept of adverse possession is often confused with the concept of prescriptive easement. Adverse possession is when a party acquires ownership of land after meeting certain requirements, including  possession of the land of another, denoting physical control over the property. Therefore, when it comes to adverse possession, two people cannot possess the same thing. An easement is only one party’s limited right to use the servient land – there is not an element of ownership or control. The Court in Nationwide held that that for a prescriptive easement to exist, there is a lesser interest at stake, and therefore, two parties can simultaneously use the same strip of property over the 20-year period, and the property owner does not have to be totally deprived of possession in order for a prescriptive easement to arise or exist.

The outcome of Nationwide has various implications on real estate law and the practical issues which may arise in the purchase or sale of property, not only for residential properties but for commercial and industrial properties as well. Perhaps the most important of which is that a purchaser of property should investigate whether or not there could be a prescriptive easement (and for that matter, an implied easement) which may affect the land it wishes to purchase. While express easements may be recorded and be revealed in a title commitment, an implied easement or a prescriptive easement may exist due to practice, custom, or fulfillment of a prescriptive easement’s requirements, which may only be ascertained by visiting the property and/or speaking with the current property owners and/or neighboring property owners directly.

If you have any questions or concerns relating to easements in connection with real estate, or if you are interested in purchasing or selling property for residential, commercial or industrial purposes and would like to discuss legal issues relating to that purchase or sale, please contact:

Eli Korer at: ekorer@lgattorneys.com or 312-368-0100

or

Jeffrey M. Galkin at: jgalkin@lgattorneys.com or 312-368-0100

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