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Real Property: Common Law and As-Is Clauses

Caveat Emptor, let the buyer beware.
Historically, sellers of real property have sought to limit their liability for defects in such real property, to prospective buyers by relying on the common law doctrine of “caveat emptor”, or let the buyer beware. Essentially, without an express agreement to the contrary, the seller’s liability, for property conditions, ended when the deed changes hands. This of course has been modified by American Jurisprudence, after all, a house (which is generally what most real property transactions center around today) is a vastly different creation today than it was just a few decades ago.

Fraudulent Concealment and Misrepresentation (Michigan).
Outside a fraudulent statement on the Michigan Seller’s Disclosure Statement, a seller commits intentional misrepresentation when:
• made a representation of a material fact;
• such representation was false when it was made;
• the representation was knowingly false or made recklessly, without knowledge of its truth;
• such representation was made to induce the buyer’s reliance;
• the buyer acted in reliance; and,
• the buyer was injured as a result of such representations.

This has been taken further where, fraud may be committed by silence. Where a seller has an affirmative duty to speak but fails to disclose material facts, causing the plaintiff to have a false impression. This has also been extended to sellers who acquire information which makes a prior statement misleading. However, a defendant is protected from claims of innocent misrepresentation where the contract contains an effective “as is” clause.

A buyer commonly sue, sellers, real estate brokers and sales associates, and property inspectors for such above misrepresentation.

A seller commits fraudulent concealment when:
• it concealed or suppressed a known material fact;
• that this material fact was not within reasonably diligent attention, observation, and judgment of the plaintiff;
• that the defendant suppressed or concealed this fact with the intention that the plaintiff be misled as to the true condition of the property;
• that the plaintiff was reasonably so misled; and,
• that the plaintiff suffered injury as a result.

Generally, public policy dictates that society is better served where both sides have a fair opportunity to assess the transaction. A seller who knows the ‘drywall’ in the basement is just painted newspaper has a duty to the buyer to disclose such fact. Or for another example, where a seller knows the roof leaks in spring, and it is now early summer, such fact should be disclosed to the buyer. If however, the buyer refuses to hear such information, or refuses to read such disclosures, or generally knowingly and voluntarily waives its rights, the law will not protect such buyer.

Will an as-is clause shift liability?
In 1839, in Smith v Richards, a seller of a gold mine induced a buyer to buy by ‘salting’ the mine (fraudulently adding gold (or other minerals) to a mine to make it appear better than it is). The seller wrote “I, however, sell it for what it is, gold or snowballs; and leave it to you to decide, whether you will take it at my price, or not.” The Court found the seller liable for fraud. Generally, an “as-is” clause depends on the situation, it will permit a seller to sell the property in whatever condition it may be in, but not also to require the buyer to go on an Easter-egg hunt to discover fraud of the seller.

With the exception of perhaps Alabama, a seller may not hide behind an as-is clause to shield itself from misrepresentation. In Dygert v. Leonard, sellers repaired and painted over cracked foundation of the house. Whilst in the purchasers possession, the foundation began to show cracks. The purchasers sued the sellers for fraud. Ruling in the purchasers favor, the court denied the sellers’ motion for summary judgment (called summary disposition in Michigan), for reason that an ‘as is’ clause does not “shield defendants from judicial inquiry into specific allegations of fraud in the inducement of the contract.”

As put by the Texas Supreme Court, “A buyer is not bound by an agreement to purchase something ‘as is’ that he is induced to make because of a fraudulent representation or concealment of information by the seller. . . A seller cannot have it both ways: he cannot assure the buyer of the condition of a thing to obtain the buyer’s agreement to purchase ‘as is’, and then disavow the assurance which procured the ‘as is’ agreement.”

A seller may find it prudent to seek the advice of counsel prior to listing their home with statements such as “According to previous owners new roof shingles were installed in [date]” and “Home being sold AS-IS with Seller not contributing toward repairs.” Because although many red-flags are raised between the lines of those two conflicting statements, does the seller know something that they should have disclosed to the buyer? Could the purchaser discover a flaw in the roof and successfully argue that the seller provided assurances? Is the seller assuring the buyer of the condition of something and then disavowing the assurance?

Noncompete Agreement Update Early-2017

Reasonableness was once a common misconception amongst commercial noncompetes. The Michigan Supreme Court in Innovation Ventures, LLC v Liquid Mfg LLC, 499 Mich 491 (2016) has resolved this confusion once and for all by making it clear, employee noncompetes must be reasonable to be valid, while commercial noncompetes are invalid only if they fail the “rule of reason” within the antitrust (a much higher standard).

Employee noncompetes must be reasonable: limited in “duration, geographical area, and the type of employment or line of business” (scope) and only so necessary as to protect the employer’s legitimate competitive interest (“competitive business interests”) MCL 445.774a. Reasonableness underscores the enforceability. This means from a lawyers perspective, drafting an enforceable employee noncompete is a challenge, it means you should not use a form, and the agreement should consider the particular employee and the particular interest being protected. The literal language of an agreement may not even define the enforceability of the noncompete. Employees have a general freedom to change employment and maximize the value of their labor (it sort-of violates public policy, for societal harm, to tie a productive employees hands behind their back).

Employee noncompetes should be standalone signed agreements (not in the handbook). Multi-jurisdicational employers should consider which state law will control (California and North Dakota prohibit certain noncompetes and Illinois requires a duration of employment). Will the employee be preforming services in other states from where the employer is located, where does the employee live (domicile)?

The noncompete must protect a legitimate business interest and competition is not a legitimate business interest. A reasonable geography could be a few miles, state, or world. Reasonable duration varies as well, a fast pace industry may only support a few months, where as a corporations long term strategy may be supported for years. And the restrictions are employment must be limited to only those jobs where the competitors could benefit from the employer’s proprietary information. Legal consideration is required in all noncompetes (value in exchange for covenant).

Commercial noncompetes may be broad and so long as they do not have an adverse impact on the competition in the relevant market they will generally be enforceable. More time is often spent on these noncompetes since the parties to the contract will consult with a lawyer and are sophisticated enough to consider the commercial implications of unreasonable terms.


Michigan Liquor Licenses

The Michigan Liquor Control Commission is a panel of five governor appointed commissioners that issues liquor licenses (MCL 436.1201 et seq); the commission has the “sole, right, power, and duty to control the alcoholic beverage traffic… within the state”.  And holders of these liquor licenses and liquor producers naturally employ thousands of people in various establishments (wineries, bars, restaurants, theaters, etc.). A single violation, by the employee or the holder, may jeopardize the business or the other employee’s jobs. It is important that a license holder is diligent in complying with the requirements of the commission.

Common violations, include:
• Right to inspect and search for liquor violation(s)
• Licensee receive aid or assistance (rebate, gift, loan)
• Misdemeanor to sell or furnish alcohol to a minor
• Sell, or serve or allow intoxicated person to consume or loiter
Licensee or employee intoxicated on premises
• Allow person under 21 to consume or posses
• Employ person under 18 years of age
Sell or furnish alcohol to a minor or intoxicated person
Selling alcohol without a license
Gambling or possession of gambling equipment
Unlawful consumption of alcoholic liquor on unlicensed premises
Dancing or entertainment without permit
• Adulterated, misbranded or refilled spirits
Selling or purchasing on credit
Allow alcoholic liquor sold for on-premise consumption to be removed from the premises
• Giving away alcoholic liquor on unlicensed premises
Selling before noon on Sunday without permit
Illegal act on premises
Licensee convicted of a felony, OUIL, etc.
Failure to cooperate with law officers (obstruction)
Knowingly allow soliciting/prostitution
Allowing fights on/in licensed premises
• Controlled substances/narcotics paraphernalia
• Improper or no display of liquor license/permits
• No contests allowed using alcoholic liquor as the prize
• Alteration, sale or transfer portion of premises without permission
• Sales, service, consumption during license suspension
• Illegal use and benefit of a liquor license
• Operation other than legal hours/days

See: Michigan LARA

Michigan Builders Trust Fund Act

 A little known statute, the MCL 570.151 et seq. commonly referred to as the Michigan Builders’ Trust Fund Act (“MBTFA”) is a statute that imposes a trust on any monies paid to a contractor; the benefit of the person making the payment and for persons whom the money is to be paid. It was designed to eliminate a common practice at the beginning of the 20th century where a builder would take money to pay for another job’s expenses. Which ultimately if things go wrong, the persons at the end of the ‘passing expenses on’ chain, lose. The Michigan legislature believed this to be such a problem that it created this as a criminal statute as a right of prosecution.

Contractors are automatic trustees. In re Certified Question from U. S. Dist. Court for Eastern Dist. of Michigan, 411 Mich. 727, 311 N.W.2d 731 (1981). The MBTFA imposes a duty upon the trustee, “The appropriation by a contractor, or any subcontractor, of any moneys paid to him for building operations before the payment by him of all moneys due or so to become due [to the trust beneficiaries], shall be evidence of intent to defraud” (see MCL 570.153). Any trustee who, with such intent to defraud, retains or uses the proceeds, or any portion thereof, for any purpose other than first paying trust beneficiaries is guilty of a felony for appropriating such funds (see MCL 570.152). Although this is a criminal statute, Michigan courts have long recognized that the MBTFA creates a private cause of action for civil redress (see Reiter v. Kuhlman, 59 Mich. App. 54, 57, 228 N.W.2d 830 (1975); and, Livonia Bldg. Materials Co. v. Harrison Const. Co. 276 Mich.App. 514 (2007)).

So what does this mean to a contractor, owner, subcontractor?

Money paid to a contractor can only be used for the owner’s project. If for example, an owner pays a contractor $5,000, that money is held in ‘trust’ by the contractor (knowingly or not). If the owner preforms $2,500 worth of work and materials, and then gets fired before the job is completed, the contractor must return the $2,500. Furthermore, this money falls outside of bankruptcy, since it is not part of the contractors estate.

No debt is dischargeable in bankruptcy that was incurred by larceny, embezzlement, fraud, or defalcation whilst acting in a fiduciary capacity (see 11 U.S.C.A. § 523(a)(4)). And a violation of the MBTFFA is an act of defalcation while acting in a fiduciary capacity within the meaning of section 523(a)(4) of the Bankruptcy Code. (see In re Strickfaden, 421 B.R. 802, 62 Collier Bankr. Cas. 2d (MB) 1602 (Bankr. E.D. Mich. 2009), aff’d, 2010 WL 3583427 (E.D. Mich. 2010)). Note, an objective standard exists for determining defalcation, which does not require a debtor to know the laws or possess an intent or motive to violate the laws (see In re Johnson, 691 F.2d 249, 255, 7 Collier Bankr. Cas. 2d (MB) 685, Bankr. L. Rep. (CCH) P 68874 (6th Cir. 1982), citing Citizens Mut. Auto. Ins. Co. v. Gardner, 315 Mich. 689, 696–699, 24 N.W.2d 410 (1946)). The In re Johnson court further noted that this position is consistent with the standard for liability imposed by MCL 570.153.

A sole shareholder, director, or corporate officer who oversees the day-to-day financial affairs of the company is personally liable for the corporation’s breach of its fiduciary duty to the beneficiary under the MBTFA. (see In re Kriegish, 275 B.R. 838, Bankr. L. Rep. (CCH) P 78701 (E.D. Mich. 2002), aff’d, 97 Fed. Appx. 4 (6th Cir. 2004)). Corporate officers who control the distribution of trust funds are personally liable for the corporation’s breach of its fiduciary duty. People v. Brown, 239 Mich. App. 735, 743, 610 N.W.2d 234 (2000) (criminal liability); and, Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65, 31 Fed. R. Serv. 2d 1615 (2d Cir. 1981) (civil liability)). It has been acknowledged in Whipple, that in most cases it is practically impossible to prove exactly how a contractor spent the construction funds. Rather, a reasonable inference of appropriation arises from the payment of constructions funds to a contractor and the subsequent failure of the contractor to pay those entitled to payment under the statute (see People v. Whipple, 202 Mich. App. 428, 435–436, 509 N.W.2d 837 (1993); and expanded by, H.A. Smith Lumber & Hardware Co. v. Decina, 258 Mich. App. 419, 670 N.W.2d 729 (2003), judgment vacated in part on other grounds, appeal denied in part, 471 Mich. 925, 689 N.W.2d 227 (2004)).

The Sixth Circuit Court of Appeals considered the issue of an ‘estate’ in bankruptcy and held that a Michigan building contractor does not have sufficient beneficial interest in funds impressed with the statutory trust to constitute property of the bankruptcy estate (see Selby v. Ford Motor Co., 590 F.2d 642, 647, 19 C.B.C. 466, 1 Collier Bankr. Cas. 2d (MB) 42, Bankr. L. Rep. (CCH) P 67033 (6th Cir. 1979)). Thus, trust funds held by the debtor contractor at the time of filing the bankruptcy petition will not be available for distribution to creditors in the bankruptcy proceeding (see Huizinga v. U.S., 68 F.3d 139, Unempl. Ins. Rep. (CCH) P 14834B, 95-2 U.S. Tax Cas. (CCH) P 50574, 76 A.F.T.R.2d 95-7025, 1995 FED App. 0315P (6th Cir. 1995)).

In an ideal world, a contractor should hold any money they receive in a segregated account, however if they do not, the owner and subcontractors have a method through criminal and civil prosecution to get paid (or paid back).

Litigation and Personal Jurisdiction

Personal jurisdiction is the courts power to hear a case, the power to decide a case over a defendant (and plaintiff, but its not usually a plaintiff’s issue). If a defendant files a motion to dismiss for lack of personal jurisdiction (MCR 2.116(C)(1)), the plaintiff bears the burden of establishing that the court does indeed have personal jurisdiction over such defendant. However, the burden is only prima facie.

In Michigan, when analyzing a summary-disposition motion pursuant to MCR 2.116(C)(1) the “complaint must be accepted as true unless specifically contradicted by affidavits or other evidence submitted by the parties.” Yoost v. Caspari, 295 Mich.App 209, 221 (2012). Therefore, the Court must draw the facts from the Plaintiff’s complaint in the first instance, but modify the allegations in the complaint if evidence is presented by the parties that contradicts those allegations. The analysis takes a two-fold test: (1) do the defendant’s acts fall within the applicable long-arm statute, and (2) does the exercise of jurisdiction over the defendant comport with the requirements of due process.” See W.H. Froh, Inc. v. Domanski, 252 Mich. App. 220, 226 (2002).

Every state has a long-arm statute, and every attorney who filed a complaint has preformed a test to determine of personal jurisdiction exists under the long-arm statute of the state, although under most circumstances it is a very simple and obvious answer. On occasion, it is not. The general five relationships that are briefly tested are: (1) [t]he transaction of any business within the state; (2) [t]he doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort; (3) [t]he ownership, use, or possession of any real or tangible personal property situated within the state; (4) [c]ontracting to insure any person, property, or risk located within this state at the time of contracting; (5) [e]ntering into a contract for services to be performed or for materials to be furnished in the state by the defendant. MCL 600.725(1)-(5) …  et seq…

If the long-arm statute is satisfied, the constitutional requirements of due-process may limit jurisdiction even if the statute permits. Under most circumstances a lawyer will only apply these tests in cases where jurisdiction is a true issue (99.9% of filed cases, in a statistic we made up, jurisdiction is a non-issue).

“The Due Process Clause of the Fourteenth Amendment ‘does not contemplate that a state may make binding a judgment in personam against an individual or a corporate defendant with which the state has no contacts, ties, or relations.'” Witbeck v. Bill Cody’s Ranch Inn, 428 Mich. 659, 666 (1987). “For a State to exercise jurisdiction consistent with due process, the defendant’s suit-related conduct must create a substantial connection with the forum State.” Walden v. Fiore, 134 S.Ct 1115, 1121 (2014). First, the relationship must arise out of contacts that the defendant himself creates with the forum State. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). Second, the “minimum contacts” analysis looks to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there. Walden, 134 S.Ct at 1122. If the question is whether an individual’s contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party’s home forum, we believe the answer clearly is that it cannot. Kulko v. Superior Court of Cal., City and County of San Francisco, 436 U.S. 84, 93 (1978)). Due process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the ‘random, fortuitous, or attenuated’ contacts he makes by interacting with other persons affiliated with the State.

From there the analysis is broken down in greater detail balanced between purposeful availment and substantial fairness. And this matters in particular, because if you attempt to sue someone in Michigan for an action that only vaguely touched Michigan, you might get thrown out of court.