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ISBA Statehouse Review for the week of August 6, 2014

ISBA Director of Legislative Affairs Jim Covington reviews legislation in Springfield of interest to ISBA members. In this episode he covers Independent examination in mental health proceedings (Public Act 98-853), Transfer on death instrument (Public Act 98-821), Common Interest Community Association Act (Public Act 98-842) and Mechanics Lien Act (Public Act 98-764). More information on the bill is available below the video.

Independent examination in mental health proceedings. Public Act 98-853 (Murphy, R-Palatine; Sandack, R-Downers Grove) fleshes out how a respondent gets an independent medical examination in a proceeding seeking involuntary admission, a proceeding seeking to administer psychotropic medication or electroconvulsive therapy, or a proceeding seeking discharge of the respondent. Requires the court to determine the fees of the expert, which are to be paid by the respondent’s county of residence. If the respondent is not a resident of Illinois, the fees are to be paid by the county in which the proceeding is pending. Effective January 1, 2015.

Transfer on death instrument. Public Act 98-821 (Barickman, R-Bloomington; Sims, D-Chicago) makes several changes to the Illinois Transfer on Death Instrument Act. (1) Makes the recording of a notice of death affidavit a permissive action that can be taken by the beneficiary to confirm title to the residential real estate but is not a mandatory requirement to perfect title. (2) Allows a bona fide purchaser for value and without notice before the recordation of a lis pendens for an action to set aside or contest the transfer on death instrument (TODI) to take free and clear of any such action or contest. (3) Clarifies that acceptance of the TODI by the beneficiary during the owner’s lifetime is not a requirement. (4) Eliminates the right of an agent acting under a durable power of attorney from creating or revoking a TODI. But it doesn't affect the agent’s right or power to sell, transfer, or encumber the residential real estate if so authorized under the POA. (5) Clarifies that only substantial compliance with the execution formalities is required. Effective January 1, 2015.

Common Interest Community Association Act. Public Act 98-842 (Haine, D-Alton; Kosel, R-Mokena) allows an association to waive the current statutory requirement in its community instruments that a leasing unit owner must deliver a copy of a lease to the association. Effective January 1, 2015.

Mechanics Lien Act. Public Act 98-764 Mulroe, D-Chicago; Kelly Burke, D-Oak Lawn) provides that language barring certain agreements does not prohibit an agreement to subordinate a mechanics lien to a mortgage lien that secures a construction loan if that agreement is made after more than 50% of the loan has been disbursed to fund improvements to the property. Allows contractual provisions to be binding between the owner and contractor or a contractor and subcontractor that no lien or claim may be filed or maintained or that a contractor’s lien must be subordinated to the interests of any other party as long as it is not otherwise prohibited by this Act.

It deletes language providing that the only admissible evidence of specified conditions of a contract as against a subcontractor or material supplier shall be proof of actual notice to him or her before the contract is entered into. Deletes language providing that certain subordination provisions of contracts is not binding on the subcontractor unless completely set forth in writing in the contract between the contractor and subcontractor or material supplier. Effective July 16, 2014.

Posted on August 6, 2014 by Chris Bonjean
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