RSP QUARTERLYRSP QUARTERLY

Todd Bickel

Vincent Borst

Marshall K. Brown

William A. Castle, Jr.

Catherine A. Cooke

Kimberly A. Doucas

Richard H. Fimoff

Andrés J. Gallegos

Richard L. Gayle

Barry Glazer

Howard S. Golden

R. Kymn Harp

Crystal L. Kontny

Andrew W. Lapin

James M. Mainzer

Eric G. Patt

Stephen P. Patt

Nathaniel J. Pomrenze

Diana H. Psarras

Arthur Radke

Jeffrey M. Randall

Andrew M. Sachs

Paul T. Saharack

Edward S. Salomon

Daniel C. Shapiro

Donna M. Shaw

Caroline S. Smith

Scott D. Spears

Richard Lee Stavins

Tracy E. Stevenson

Robert J. Trizna

Robert McKenna Winter

Alan J. Wolf

Larry N. Woodard

IN THIS ISSUE

RSP GLENVIEW

2222 Chestnut Ave. | Ste. 101 Glenview, Illinois 60026 Tel 847.729.7300 Fax 847.729.7390

RSP CHICAGO

25 East Washington St. | Ste. 1000 Chicago, Illinois 60602 Tel 312.782.9000 Fax 312.782.6690

Article by: ANDRÉS J. GALLEGOS | 312.456.0381 | agallegos@rsplaw.com

A priest, a blind man, and a horse walk into a bar… After March 2011, that no longer was the opening line of a silly joke: it became the law of the land, well sort of.

Service Dogs and Miniature Horses for the Disabled

Service dogs and miniature horses for the disabled

COVER STORY

Is the real estate market getting better?

PAGE FOUR

Social media, local governments and free speech

PAGE TWO

Conventional wisdom, urban legends, RSP news, recent announcements, and more…

PAGE FIVE

How do they measure the “square footage” of a house or condominium?

PAGE SIX

Robbins, Salomon & Patt, Ltd. | Attorneys at Law The Difference is Clear ®

RSP QUARTERLY

The Question (answer on page five)

What public building at 1121 South State Street in Chicago was always referred to as Eleventh & State?CHICAGO

LOREFor more information, visit us online at www.rsplaw.com

RSP ATTORNEYS

New regulations under the Americans with Disabilities Act require all public entities (like state and local governments) and all places of public accommodation (like restaurants, bars, hotels, shopping centers, hos-pitals, doctor offices and condominiums) to permit people with disabilities to be accompanied by either a service dog or a miniature horse. Yes, a miniature horse!

Over the last 20 years, the list of permitted service animals for the disabled grew to include a variety of species: pigs, monkeys, snakes, lizards, birds and rodents. But now, a newly revised rule restricts

“service animals” to dogs that have been individually trained to do work or perform tasks for the benefit of an individual with a disability. Examples include assisting individuals who are blind or have low vision with walking and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, pulling a wheelchair, and retrieving items such as medicine or the telephone. Yes, if the dog can answer the telephone, he definitely qualifies.

Public entities and public accommodations may exclude the dog only if it is out of control and the handler does not take effective action to control it,

or if the dog is not housebroken. The dog must be on a leash, harness, tether or under voice control, signals or other effective means of control.

Public entities and public accommodations may not ask about the person’s disability, but can make two inquiries to determine whether a dog qualifies as a service animal: is the dog required because of a disability? and what work or task has the dog been trained to perform?

In addition to a dog, a disabled person may be accompanied by a miniature horse. What’s a miniature horse? As the name implies, they are tiny horses used like guide dogs for the blind and to pull wheelchairs and provide stability and balance for people with ambulatory impairments. For some disabled folks, a miniature horse can be better than a dog. A miniature horse’s average life span is 25 years, compared to seven years for a dog, and they are generally much stronger than dogs. So, if a disabled person enters your office or condominium building with a very small horse, be careful. He’s legal. On the other hand, if he arrives with a pig, out he goes.

Local governments are under

increasing pressure to provide

the public with greater access to

information. Social media sites –

Facebook, Twitter, MySpace,

YouTube, and Flickr – provide

increasingly useful outreach and

communication tools. However,

governmental entities face con-

stitutional issues that complicate

the use of social networking as

a communications strategy.

The interactive nature of social

media provides specific challenges

for units of local government.

A private user on Facebook is

free to restrict content or delete

unwanted posts from that user’s

“wall.” However, a municipality

does not have the same flexibility

when it comes to removing posts

that are deemed unwanted or

that express unpopular opinions.

By removing such posts from a

governmental entity’s wall, local

officials may run afoul of the

First Amendment of the U.S.

Constitution, which generally

prohibits the government from

regulating speech. Private entities

have no such restraints.

A local government’s social

media page will likely have some

level of interactivity, meaning

that citizens can post messages

and comment on information

provided by the local government.

Once that occurs, the page will be

characterized as a public forum.

Generally, a forum is considered

one of three types for governmen-

tal purposes: a traditional public

forum, a designated public forum,

and a non-public forum.

A traditional public forum is

a street, sidewalk, park, or

other place devoted to the free

exchange of ideas. In these

areas, government control of

access is permissible only to

serve a compelling governmental

interest, and that control must

be narrowly drawn to achieve

such interest.

A designated public forum is

one where the government

intentionally designates a non-

traditional public forum for

public discourse. Examples

include public comment time at

a sanctioned meeting of elected

officials, or the designation of

a specific area of government

property for holiday displays

at Christmas time. Government

restrictions on speech in a

TWO

Article by: ERIC G. PATT

ERIC G. PATT312.456.0373epatt@rsplaw.com

Social Media, Local Governments and Free Speech

by: RICHARD LEE STAVINS

Fact or Fiction; finders keepers, losers weepers. ARTICLE UPDATE

RICHARD LEE STAVINS312.456.0371rstavins@rsplaw.com

RSP QUARTERLY Fall 2009

Great Urban Legends Of The Law: Fact or Fiction?

Two years ago, we told our readers about an obscure Illinois statute, the Estrays and Lost Property Act, that sets up a legal procedure for a person to use who finds lost property whereby he reports it to the County Clerk, signs an appropriate affidavit, and eventually becomes the lawful owner of the property if no one claims it.

We commented: “Although no one ever complies with this law, there it sits at 765 ILCS 1020, waiting to be used someday.”

Fast-forward now two years. In September 2011, the Chicago Tribune reported on a McHenry County man who found $150,000 cash in his back yard and turned it over to the authorities and then “filed an affidavit in the McHenry County Clerk’s office under the Lost Property Act so that he can claim the money if no one else does.” Well, well, someone is finally using the Estrays and Lost Property Act. Good for him! Maybe he read our article.

THREE

designated public forum are

subject to the same strict scrutiny

standards as restrictions in a

traditional public forum.

A non-public forum is one where

the government does not intend

to permit expressive activity.

Examples are courtrooms, most

governmental buildings, and

legislative sessions. Control over

access to a non-public forum

can be based on subject matter

and speaker identity, so long

as the distinctions drawn are

reasonable in light of the purpose

served by the forum and are

viewpoint neutral.

What does all this mean for

social media? Because social

media is a new phenomenon,

it is questionable whether courts

would deem a social media site

as a traditional public forum.

A local governmental entity that

establishes its presence on an

interactive website effectively

grants permission to the public

to engage in expressive activity at

that site as a matter of course.

Accordingly, courts are more

likely to find that the govern-

ment intends the site to be

a designated public forum.

Therefore, any governmental

restrictions must be narrowly

tailored to serve a significant

government interest.

This means that restrictions on a governmental social media page must be reasonable and viewpoint neutral. For example, if a municipality allows people to post messages commenting on how terrific its Fourth of July fireworks show was, it must also allow them to post complaints about the show.

However, this does not mean that anything and everything must be permitted. Obscenities, libel, and threats may be barred from the social media site. Any governmental entity with a social media site must establish clear policies and guidelines to be used in determining the allowable topics of discussion at the site and the types of

comments that will be barred.

These policies must be estab-

lished in a content-neutral

manner, so that the municipality

is not engaging in viewpoint

discrimination, which is prohib-

ited under the First Amendment.

Posts critical of the government or

providing incorrect information –

so long as they are not obscene,

libelous or threatening – must

be allowed to remain. The gov-

ernmental entity’s site adminis-

trator could, of course, post

a response to the criticism or

correct any misinformation. The

First Amendment encourages

robust debate.

A social media policy with a

well-defined purpose, standards

for appropriate public posting

of comments, and that publicly

sets forth the municipality’s right

to delete certain objectionable

content will allow governmental

entities to take advantage of the

interactive nature of social media,

while limiting potential problems

and concerns regarding First

Amendment violations.

FOUR

Maybe – just maybe – the com-

mercial real estate market is

beginning to improve ever so

slightly. It sure couldn’t get

much worse.

Real estate investors and devel-

opers who have been mostly on

the sidelines are beginning to

jump back in the game to take

advantage of falling prices and

distressed projects. Recent local

examples include:

• A suburban Chicago retail

development that was dead in

the water two years ago is being

revived by a developer who

acquired the land through a

foreclosure sale, and will soon be

under contract to sell a portion

to a national retailer with plans

to retain and develop the rest.

• An investor is purchasing fully-

entitled land for a residential

development in western Illinois at

a fraction of the cost paid by the

prior owner just a few years ago.

• A developer is under contract

to purchase a Chicago parking

facility via a “short sale” with

plans to redevelop it.

• Another developer recently

purchased a vacant building on

Chicago’s north side and

has signed a lease with a

well-known retailer.

Commercial real estate bank

lending slowed substantially

following the 2008 market crises,

which made doing a real estate

deal extremely difficult if not

impossible. Banks now seem to

be getting a handle on whatever

real estate loan skeletons may

have been in their closets and

are cautiously getting back into

the business of again making

real estate loans. The terms are

much tougher, however, than

in the “good old days” of circa

2007. Typically, those terms

include lower loan-to-value

ratios, higher interest rates,

and requiring guarantees from

individuals with substantial

liquidity relative to the amount

being borrowed.

Nevertheless, new real estate loans are being made, rather than just modifications and extensions of existing loans, which have served as the bulk of the real estate

lending activity in recent years.

Recent new loans we have seen

include these properties:

• An office building and related

parking facility in Chicago.

• A retail property co-anchored

with national tenants in

Indiana.

• A health club facility in Chicago.

• A student housing complex

in Mississippi.

The economy in general is cer-

tainly not thriving, and S&P’s

downgrade of the U.S. credit

rating and recent nosedive in

the stock market is yet another

reminder of that. Nevertheless,

many of these projects would

likely have not gone forward even

one year ago.

The increased level of activity in

the real estate market, however

slight, seems to indicate it may

be getting better out there, and

for those who are affected by the

health of the commercial real

estate market, even a little bit of

good news is welcome, indeed.

Article by: TODD BICKEL

Is the Real Estate Market Getting Better?

TODD BICKEL 312.456.0192tbickel@rsplaw.com

By your beloved dynamic duo : RICHARD LEE STAVINS AND LARRY N. WOODARD

Recent Announcements & Conventional Wisdom

The Answer (to our quiz on page one)

The building at 1121 South State Street officially was the Central Police Headquarters, but no one ever called it that. It was always: Eleventh & State.

CHICAGOLORE

The publication of this legal newsletter by Robbins, Salomon & Patt, Ltd. is not intended as a solicitation of representation, but rather is a service to clients, other professionals and friends of the law firm. Written entirely by members of the firm, we welcome any comments or questions about topics covered in this issue. This newsletter is not intended as a replacement for individualized legal advice. The contents of this publication may be quoted or reproduced if credit is given to the source.

©2011 Robbins, Salomon & Patt, Ltd. FIVE

ACHIEVEMENTS OF NOTE

Robert Winter served as program facilitator for the Illinois Supreme Court’s orientation program for new law students.

Robert Trizna was appointed to the board of trustees of the Park Ridge Library.

Dan Shapiro and Jim Mainzer have joined Robbins, Salomon & Patt. Dan is a 1987 graduate with honors from Washington College of Law at American University. He concentrates his practice of law in zoning land use, municipal law and litigation. He lives in Deerfield where he serves on the Plan Commission. Jim is a 1978 graduate of Illinois Institute of Technology - Kent College of Law. After law school, he worked for five years as an Internal Revenue Service agent. He is also a certified public accountant. Not surprisingly, Jim concentrates his practice in tax law. He also advises small businesses.

Larry Woodard authored “Selling Commercial OREO: a Practical Guide,” which appeared in the Journal of Taxation and Regulation of Financial Institutions. Larry also was a speaker at an Illinois Institute of Continuing Legal Education seminar on the same subject. (see fig.1)

Kymn Harp authored “Give Them Their Due: Due Diligence in Commercial Real Estate Transactions,” which appeared in Probate & Property, a publication of the real property, trust and estate law section of the American Bar Association. (see fig.2)

Richard Stavins authored “Stay of Judgment Pending Appeal: Avoid the Appeal Bond Trap,” which appeared in the Illinois Bar Journal, a publication of the Illinois State Bar Association. (see fig.3)

Tracy Stevenson was appointed adjunct professor of law at the John Marshall Law School in Chicago. She will be teaching drafting of documents in civil litigation. Tracy will continue practicing law full time with Robbins, Salomon & Patt.

GREAT URBAN LEGENDS OF THE LAW

Fact or Fiction? “Possession is nine-tenths of the law.”

:: PARTLY FACT & PARTLY FICTION ::

We don’t know whether this is fact or fiction, because no one really knows what it means.

There are many explanations of what this oft-stated aphorism is supposed to mean. One is that “posses-sion is nine-tenths of the law” means that nine of the ten common law writs are possessory in nature. The problem with this explanation is that there are many more than ten common law writs and far less than nine require a possessory interest. So much for that theory.

Another explanation is that the phrase really is, “possession is nine points of the law,” and that the nine points are patience, money, a just cause, good counsel, believable witnesses, a true jury, a good judge, good luck and a hell of a good lawyer. This is pure urban legend.

The best theory – because several courts have said so – is that in a legal dispute concerning title to property, the party in possession of the property will often be declared to be the owner. Two federal courts have said that this aphorism is actually still a rule of the common law, not just a proverb, that it dates back to 1616 and that it means that in court a person who possesses property has

“a clear advantage” – whatever that means. Day v. Case Credit Corp., 2007 WL 604636; and Willcox v. Stroup, 467 F.2d 409. A Pennsylvania state court said that, “the maxim possession is nine-tenths of the law is not a legally accurate rule, but possession is an element to consider in determining ownership.” Commonwealth v. Younge, 667 A.2d 739.

WORDS TO LIVE BY

There are three things a person must do alone: testify, die and putt.

RICHARD LEE STAVINS312.456.0371rstavins@rsplaw.com

(above left)

(above right)

LARRY N. WOODARD312.456.0191lwoodard@rsplaw.com

fig.1

fig.2

fig.3

SIX

There are three ways of measur-ing square footage in a house or condominium unit. Each method will give different measurements for the same premises. No law mandates the use of one method or another.

1. GROSS SQUARE FOOTAGE

This includes everything within the outside perimeter walls. Assuming an example where the house or condominium unit is a perfect square or rectangle, it’s the distance from the inside of

the north wall to the inside of the south wall multiplied by the distance from the inside of the west wall to the inside of the east wall. All of the interior walls and columns that separate the various rooms are ignored. This method gives the largest number. Not surprisingly, this is the method most often used by sellers, real estates agents and braggarts.

2. NET SQUARE FOOTAGE: This is the gross square footage (No. 1 above) minus the space

occupied by all of the interior walls of the house or unit. This method gives the second largest number.

3. NET LIVING AREA:

This is net square footage (No. 2) minus the space occupied by the interior columns, which are often found in abundance in high-rise condominium units. This method gives the smallest number. Not surprisingly, it is the one rarely quoted by sellers, real estate agents and braggarts.

Article by: RICHARD LEE STAVINS

How Do They Measure the “Square Footage”

of a House or Condominium?

RICHARD LEE STAVINS312.456.0371rstavins@rsplaw.com

2011 | ISSUE 02

RSP QUARTERLY

The Difference is Clear ®

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