Generally, nearly every estate plan will be governed, in some form, by the Michigan Estates and Protected Individuals Code (EPIC) (MCL 700.1101 et seq.) and the Michigan Trust Code (MTC) (MCL 700.7101 et seq.). When developing a proper estate plan, both statutes and common law should be reviewed.

As a legal title holder of valuable assets, such as real property or jewelry, it is essential that a procedure is developed, well before death, to assure they are handled properly after death. Placing those assets legal title under the management of a trust is one step in ensuring smooth passage of assets to proper parties (beneficiaries) after death (MCL 700.7401). A living trust (inter vivos trust) is different in several aspects from a trust created at death (testamentary trust); those aspects should be considered with the assistance of legal and tax professionals.

Choosing a trustee wisely is an important step to consider. The trustee is responsible for the proper management, safeguarding, and administration of trust assets. Thus, not only should the trust creator (settlor/grantor) choose wisely, it is critical that the trustee (him or herself) understands the full weight of accepting the position. They should be counseled on the details of the asset management of the trust as well as any liability that accompanies (statutory, implied, or written).

The establishment of a trust and regulation thereof, is outlined in MCL 700.7401 et seq. When you consult with your professionals, be clear and frank with him or her. Think about what your 5 year and 10 year goals are before and after death so you may articulate those goals to your chosen professionals. Establishing a trust is a very detail rigorous process, thus it is important that you express your desires to your attorney and accountant so that the trust may take over, as you wish, in the case of incapacity or death.

If you have ever received SPAM e-mail, or junk e-mail, from businesses that you have never had an affiliation with, then you may have been subject to unsolicited commercial e-mailing. In Michigan, the Unsolicited Commercial E-mail Protection Act protects against this type of e-mail solicitation by requiring the sender to include certain notices and options for the receiver (you). A few of these are (i) clear statement of advertisement, (ii) valid contact information, and (iii) an option to ‘opt out’. (see MCL 445.2501 et. seq.)

Clear statement of advertisement requires unsolicited commercial e-mails to contain a subject line indicating that they are indeed an advertisement. The Act states that the sender must include “ADV:” as the first four characters of the e-mail’s subject line. This allows you to clearly discern that the e-mail you are receiving is of a commercial basis, and may regard it as “junk”.

Valid contact information must be established, as this allows the receiver to contact the sender regarding any information being distributed. It is required that the sender has a valid toll-free telephone number, e-mail, and return mailing address thus allowing access for the receiver to cancel contact from the sender.

Option to opt out allows the receiver to be removed from any future contact by the sender. The provided means of contact must be at no cost to the receiver, as well as no cost to be removed from their e-mail list. For example, they cannot have a cancellation fee, since you were never asking to receive their information. Additionally, this option must not be hidden in fine print, and must be conspicuous to the receiver.

Be careful! Just because you view an e-mail to be unsolicited commercial “junk”, does not mean it falls under this act. Any time that you voluntarily give your e-mail to a company they are able to send you promotional advertising, and may not need to follow the required guidelines listed above. Due to an existing relationship between you and said business, they are not necessarily bound by this act. If you have ever signed up to receive more information from a company, business, store, etc. then you have established that you have a relationship with that entity, thus all information sent via e-mail would not be considered to be “unsolicited”.

Further, federal law CAN-SPAM (Chapter 103 of 15 U.S.C.) provides individuals and businesses a federal cause of action, and generally preempts state law on this subject matter.

In Michigan, a common clause to see in service and products contracts is one entitled indemnification. Within each indemnity clause are three separate and independent concepts: (1) Indemnify; (2) Hold Harmless; and (3) Defend. Each point conveys certain rights, duties, and obligations to the other party.

For example, a common indemnification clause is similar to:
“Contractor hereby releases and will defend, hold harmless, and indemnify the Company, from and against any allegation or claim based on any loss, arising from any act or omission by Contractor.” Here you see the 3 independent concepts and independent duties.

(3) “Defend” creates a duty to defend (obviously) the Company in a lawsuit, which includes the duty to prepare for and control of the defense. Immediately upon filing and notice of a claim, the Contractor’s duty is triggered. Occasionally it may be wiser to control your own defense, so use this carefully in conjunction with the other clauses.

(2) “Hold Harmless” means that the Company is not liable for the described damages. This essentially means, that the Contractor (the party indemnifying) may not sue the Company (the party being indemnified). Indemnification and hold harmless are closely related ideas and occasionally may mean the same thing (creating a redundancy, but not usually ambiguity).

(1) “Indemnification” means that the Contractor must compensate the Company for losses or damages described within the paragraph. This is independent of other clauses describing damages, such as liquidated damages. This will likely occur after the judgement has been filed against the Company.

Clearly, these clauses direct liability and risk from one party to the other; they should be considered carefully when agreeing to the terms of a contract. Generally, the contract price itself may be heavily dependent upon these clauses. Discuss with your attorney how best to price your fees within a contract containing a clause like the one above.

Traditionally, landlords had no duty to make properties safe for tenants. However, the law has evolved over the last several hundred years to include five exceptions: (1) Latent Defects; (2) Common Areas; (3) Public Use; (4) Furnished Short-Term Residences; and (5) Negligent Repairs (by (a) landlord, or (b) third party). These exceptions generally exist because under modern law, landlords are presumed to have the greatest knowledge and control over the premises.

Latent defects are those dangerous conditions that exist at the time of lease creation that the landlord should know about; and that a tenant could not discover through reasonable means (out of sight out of mind could be reasonable). These defects must be disclosed to the tenant, and failure to disclose those defects will subject the landlord to liability for any injury caused. However landlords generally cannot protect themselves by disclosure for short-term residences that are furnished.

Common areas are controlled by the landlord on behalf of the limited public and other tenants. Any dangerous condition reasonably discoverable by a landlord (out of sight out of mind might not be reasonable) must be made safe. Injuries subject the landlord to liability.

Public use. The landlord is liable for injuries to the public for dangerous conditions when the landlord has reason to believe that the public may be invited on to the property.

Repairs. Landlords are liable for injuries from negligent or ‘deceptively safe’ repairs.

Expansion in this area of law has progressed even beyond these common law rulings, with legislation in Michigan the landlord tenant act creates several duties for both landlords and tenants.

Unfair Competition in Michigan describes the interference, though malice or intention, of another businesses activities. Examples of unfair competition are the induction of one party to breach a contract with another party and, the use of a competitors trade secrets. Breach of contract involves one party exerting some influence towards the goal of causing another party not to enter into a contract or to exit a contract prematurely. Use of trade secrets requires a non-patented advantage unavailable to the public and, the trade secret must be taken in a wrongful manner. Michigan courts have explicitly described how to protect trade secrets in employment severance agreements. It is wise to actively pursue unfair competition in your industry.