Five Stories That Matter in Michigan This Week – June 21, 2024

  1. Michigan is Top Cannabis Market in Country by Sales Volume

The Detroit Free Press recently reported that Michigan surpassed California as the top cannabis market in the country by sales volume, despite having one quarter of California’s residents.

Why it Matters: The growth of Michigan’s cannabis market is significant over the last five years. However, despite having higher sales volume, the dollar volume of California’s sales is much higher ($5.1 billion in California vs. $3 billion in Michigan). Michigan’s market continues to be plagued by declining product prices and profitability.


  1. Michigan Enacts Legislation Requiring Equal Insurance Coverage for Mental Health Treatment

Governor Whitmer recently signed into law legislation (Michigan Public Act 41 of 2024) requiring insurance providers in Michigan to provide coverage for mental health and substance abuse disorder treatment in a manner equivalent to medical coverage.

Why it Matters: This means that insurance providers cannot impose greater financial (e.g., co-pays, deductibles, or out-of-pocket maximums) or quantitative restrictions (e.g., limits on frequency of treatment, number of visits, days of coverage) on mental health and substance abuse disorder treatment coverage in their plans than they would for medical coverage.


  1. Election Year Considerations for Exempt Entities

As another election season approaches and the candidates and issues begin to come into focus, now is a good time to review the regulations that govern exempt organizations and their involvement in politics.

Why it Matters: This article focuses on the direct activities of certain exempt entities and not on the use and function of affiliate organizations, such as a Political Action Committees (PACs). Exempt entities may find it useful to establish a PAC for use in organizing and operating the political and lobbying activities supportive of the organization’s exempt purpose. Read more from attorney Bob Burgee.


  1. Fraser Trebilcock Attorney Obtains Full Dismissal for Firm Client

Fraser Trebilcock Shareholder and Real Estate Department Chair Jared A. Roberts obtained full dismissal of another Bureau of Professional Licensing complaint brought against a real estate brokerage and a salesperson.

Why it Matters: “The key to understanding and properly defending this case,” Jared advised, “was to perform a comprehensive review of all communications.” Once that was done “we were able to find party consent for an action that the Complainant and the Department were alleging was unauthorized.” As Michigan’s leading real estate broker defense attorney advises, carefully preserve all communications in your deal file – they may be instrumental in your defense. Learn more.


  1. The Ins and Outs of Cottage Succession Planning in Michigan (Part Two)

A cottage plan is an agreement that describes how a cottage will be shared, managed and passed on to future generations of family members. Cottage plans typically cover a range of issues that can impede the succession of a cottage if left unaddressed.

Why it Matters: There are significant advantages to having a cottage plan that utilizes an LLC or trust structure. There is no single option that is best for all families, so it’s important to consult with an experienced cottage law attorney to determine what option is right for you. Learn more from your Fraser Trebilcock attorney.

Related Practice Groups and Professionals

Cannabis Law | Sean Gallagher
Business & Tax | Robert Burgee
Real Estate Law | Jared Roberts
Cottage Law | Mark Kellogg

Five Stories That Matter in Michigan This Week – June 23, 2023

  1. Client Alert: PCORI Fees Due by July 31, 2023!

In Notice 2022-59 the Internal Revenue Service set forth the PCORI amount imposed on insured and self-funded health plans for policy and plan years that end on or after October 1, 2022, and before October 1, 2023.

Why it Matters: Notice 2022-59 sets the adjusted applicable dollar amount used to calculate the fee at $3.00. Specifically, this fee is imposed per average number of covered lives for plan years that end on or after October 1, 2022, and before October 1, 2023. For self-funded plans, the average number of covered lives is calculated by one of three methods: (1) the actual count method; (2) the snapshot method; or (3) the Form 5500 method. Learn more from your Fraser Trebilcock attorney.


  1. Michigan Legislation Aims to Make it Easier to Hire Teachers and Counselors

On Thursday, the Michigan House passed legislation—which cleared the Michigan Senate in April—that aims to reduce barriers for out-of-state teachers and school counselors to work in Michigan’s schools. Senate Bill 161 would change Michigan’s teacher certification requirements, and Senate Bill 162 would similarly ease the way for out-of-state counselors to work with Michigan students.

Why it Matters: Michigan schools, like many in other parts of the country, have faced staffing shortages similar to those other employers have struggled with.


  1. What You Need to Know About Pet Trusts

A pet trust is a legal document that allows you to provide for the care of your beloved pet if you become incapacitated and after you pass away. A pet trust can be created as a standalone document, or as part of a revocable (living) trust or will. In addition, a durable power of attorney can provide instructions to an agent for the care of a pet during your lifetime.

Why it Matters: Estate planning with pets in mind is an increasingly popular way for pet owners to ensure that their furry companions are taken care of, even when the owners can no longer care for themselves. Learn more about how to effectively care for your pets if you become incapacitated or pass away.


  1. New Distracted Driving Law Goes into Effect June 30

Beginning June 30, Michigan motorists will be prohibited from using any mobile electronic device while operating a motor vehicle, even if at a stop sign or red light. This includes sending/receiving texts, accessing social media, or recording videos.

Why it Matters: First time offenders will face a $100 fine and/or 16 hours of community service, in addition to one point being added to the individual’s driving record. Penalties will increase for repeated violations, and on the third offense, individuals may be required to take a drivers improvement course.


  1. Fraser Trebilcock Attorney Obtains Dismissal for Firm Client

Fraser Trebilcock attorney Jared Roberts recently obtained a dismissal in a circuit court case brought against a brokerage and salesperson.

Why it Matters: In this case, which involved interpretation of transaction documents, a county “Time of Sale” well and septic inspection ordinance and water quality issues, Mr. Roberts obtained dismissal in the first responsive document. Learn more about their practice and how they may be able to assist.

Related Practice Groups and Professionals

Employee Benefits | Bob Burgee
Employee Benefits | Sharon Goldzweig
Trusts & Estates | Elizabeth Siefker
Real Estate | Jared Roberts

Five Stories That Matter in Michigan This Week – June 16, 2023

  1. Changes to Michigan’s Elliott-Larsen Civil Rights Act

Employers should be aware of recent actions taken by the Michigan legislature with respect to Michigan’s Elliott-Larsen Civil Rights Act (ELCRA). Governor Whitmer recently signed into law an amendment that extends the ELCRA’s prohibitions against discrimination to individuals who have terminated a pregnancy. On June 8, 2023, the Michigan House of Representatives voted to pass, which amends the definition of race within ELCRA to ban discrimination based on hair and other traits associated with racial or ethnic identity. Governor Whitmer is expected to sign this bill into law.

Why it Matters: Lawmakers who introduced the bills argue that the legislation will increase access to support services for domestic and sexual violence victims, and also will protect their privacy and shielding them from additional harassment.


  1. CRA Publishes May 2023 Data, Average Price Hovers

Per data released by the Cannabis Regulatory Agency, the average retail price for adult-use sales of an ounce of cannabis is $90.64, a small increase from $87.76 in April. This is still a large decrease from May 2022, where the average price was $130.62.

Why it Matters: While the prices of cannabis and cannabis-related products continue to decrease and make consumers happy, growers on the other hand are seeing profits decrease resulting in them seeking ways to halt new licenses to be granted in an effort to steady prices. Contact our cannabis law attorneys if you have any questions.


  1. Fraser Trebilcock Attorney Obtains Dismissal for Firm Client

Fraser Trebilcock attorney Jared Roberts recently obtained a dismissal in a circuit court case brought against a brokerage and salesperson.

Why it Matters: In this case, which involved interpretation of transaction documents, a county “Time of Sale” well and septic inspection ordinance and water quality issues, Mr. Roberts obtained dismissal in the first responsive document. Learn more about their practice and how they may be able to assist.


  1. Detroit Mayor Unveils Land Value Tax Plan

At the Mackinac Policy Conference in May, Detroit Mayor Mike Duggan announced a proposal, called the Land Value Tax Plan, that if passed, would change property taxes while encouraging economic growth across Detroit.

Why it Matters: According to the plan laid out online, if enacted, would replace certain tax rates for homes and property structures with a higher rate of tax on land, with the purpose of targeting unused, unproductive, or vacant land while providing benefits to homeowners and businesses.


  1. CRA Revokes License for Marijuana Business for Illicit Products

The Michigan Cannabis Regulatory Agency announced on June 15 that it was revoking the license for marijuana business Candid Labs, which operates as Layercake Farms 2, after they were found to have illicit and unlicensed marijuana, in addition to other license violations including an inoperable video surveillance system.

Why it Matters: A requirement that every marijuana business must adhere to is properly working video surveillance system that is in place 24 hours a day, seven days a week, at all licensee locations. Failure to comply will result in fines, possible license suspension and/or license being revoked. Contact our cannabis law attorneys if you have any questions.

Related Practice Groups and Professionals

Labor, Employment & Civil Rights | Dave Houston
Cannabis Law | Sean Gallagher
Real Estate | Jared Roberts

Five Stories that Matter in Michigan This Week – July 22, 2022

  1. COVID, Force Majeure, and Frustration of Purpose

Courts have rejected COVID-related force majeure and frustration of purpose arguments on the reasoning that the pandemic and its effects were foreseeable. Now in its third year, disruptions related to the pandemic are no longer unforeseeable and businesses should take note.

Why it Matters: COVID-related frustration of purpose and force majeure are not cure-alls, and courts will not take these arguments at face value. However, with the right facts, frustration of purpose or force majeure arguments can be successful. Businesses should take positive steps to ensure that their interests are protected if/when COVID comes knocking again.


  1. Proposed Short-Term Rental Legislation Remains Stuck in Michigan House

Local communities will be limited in their ability to regulate short-term housing rentals if a bill passed by the Michigan House of Representatives, House Bill 4722 (“HB 4722”), becomes law. However, the bill remains on hold in the Michigan House, as powerful interest groups—local governments and Michigan realtors, in particular—remain at odds over the bill.

Why it Matters: The bill restricts local communities from adopting or enforcing zoning ordinance provisions that have the effect of prohibiting short-term rentals. On the one hand, local governments argue that the bill would undermine local control over zoning. On the other hand, realtors argue that the bill would dampen the real estate market. A lot is at stake, as Michigan homeownersreportedly made more than $250 million from Airbnb rentals alone in 2021.


  1. Decreased Costs Trending for Medical Marijuana Licenses

Last month the Cannabis Regulatory Agency (CRA) announced that medical marijuana facilities that need to renew their license or obtain a new license will pay less in fees for the upcoming fiscal year. Fees for each class and type of business have been reduced, a trend that started last year when the CRA reduced fees for this current fiscal year.

Why it Matters: As the number of medical licensees in the state continue to grow, associated costs of getting a new license or renewing are decreasing. If you have any questions or seeking to acquire a medical marijuana license, contact our cannabis attorneys.


  1. New Law Allows Non-Profit Corporation to be a Member of Limited Liability Company

Senate Bill 926 was recently signed into law by Governor Whitmer, which changes the definition of a person in the limited liability company act, allowing nonprofit corporations to be members of limited liability companies (“LLC”).

Why it Matters:  Michigan now joins other states that allow nonprofits to create LLCs that do not involve any financial gain or profit to perform certain functions while still maintaining their nonprofit status.


  1. Paid Sick Leave and Minimum Wage Laws Up in Air

Following the ruling by the Michigan Court of Claims recently, the “adopt and amend” strategy taken on by Michigan’s legislature in 2018 to find a compromise for two ballot initiatives which would have increased the minimum wage and enacted a paid sick leave law, was deemed unconstitutional.

Why it Matters: It is anticipated that the Michigan legislature will appeal the decision and request a stay. If the decision is not reversed, then changes will go into effect immediately. The state’s minimum wage will increase to $12 an hour, tipped employees will receive an increase, and nearly every size and type of business will receive 72 hours per year of paid sick time leave.

Related Practice Groups and Professionals

Litigation | Matthew Meyerhuber

Real Estate | Jared Roberts

Cannabis | Klint Kesto

Business & Tax | Ed Castellani

Labor, Employment & Civil Rights | Aaron Davis

Filing of Property Transfer Affidavits

Michigan law requires that a Property Transfer Tax Affidavit (“PTA”) be filed with the local assessor (city or township) upon the transfer of ownership of real property. As used in the statute “transfer of ownership” means the conveyance of title to or a present interest in real property or some personal property.  The PTA must be filed within 45 days of the date of transfer.

The penalties for failure to file can be severe. Generally, (i) if the sale price of the property transferred is $100,000,000.00 or less, the penalty is $20.00 per day for each separate failure beginning after the 45 days have elapsed, up to a maximum of $1,000.00 or (ii) if the sale price of the property transferred is more than $100,000,000.00, the penalty is $20,000.00 after the 45 days have elapsed. Note, the statute is complex and each situation needs to be carefully reviewed with your real estate attorney.

Additionally, if the assessor discovers the transfer in a later tax year, the assessor can go back and reassess the property for the three prior years and bill for the difference in the taxes actually paid plus interest and penalties.

In order to protect yourself, you must make sure that you have timely filed the PTA. When filing you should also have a copy time-stamped by the local assessor, so you can prove the PTA was properly and timely filed. The safest way to accomplish this is to hand-file the PTA and ask at that time for the copy to be time-stamped. However, in these days of COVID-19 shutdowns, many assessors’ offices are closed. If this is the case in the applicable jurisdiction, I suggest you utilize either (i) an overnight delivery service or (ii) certified mail, return receipt requested. You should send the original along with a copy to be time-stamped together with a self-addressed, postage-paid envelope and request in your cover letter that time-stamped copy be returned to you. Utilizing either an overnight delivery service or certified mail, return receipt requested will provide evidence that you did timely file the PTA.

We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.

Fraser Trebilcock Attorney Norbert T. Madison, Jr.Norbert T. Madison, Jr. is a highly regarded corporate and real estate attorney with more than three decades of experience. Primarily focused on real estate matters, Norb represents clients in all facets of the practice, including the purchase, sale, leasing, and financing of various types of real estate, as well as the development of industrial, office, retail, condominium and residential real estate. Contact Norb at 313.965.9026 or

Using Forbearance Agreements to Protect Commercial Real Estate Lender Interests During COVID-19

While much attention has been paid to the struggles of businesses, such as restaurants and retail establishments, to survive the economic downturn wrought by the COVID-19 pandemic, those who lend to such businesses for the purchase of real estate are also dealing with the fallout.

Every real estate loan payment missed by a borrower puts lenders in a more precarious financial position. Even borrowers who remain current on their loan payment obligations may find themselves in default, as lower property valuations result in borrowers failing to meet debt yield, loan-to-value or similar financial covenants.

While the economy in Michigan and across the country is reopening in fits and starts, it’s by no means “business as usual.” Economic woes are likely to continue, which means that lenders will be forced to deal with more financially distressed borrowers. In some instances, this means the possibility of foreclosure. In others, this means dealing with debtors in bankruptcy, as evidenced by a recent surge in bankruptcy filings. According to data from Epiq Systems, commercial Chapter 11 filings were up 48% in May as compared to May 2019.

However, more often, loan defaults by borrowers, and the possibility of future defaults due to financial distress, are dealt with outside of foreclosure or bankruptcy. In many cases, a lender is better off working out a deal that keeps a debtor in the property and running its business, so that it can work through the distress and remain solvent. The potential for recovery via foreclosure or bankruptcy is often limited—not to mention the costs associated with such processes are often steep, and with widespread court closures, any judicial action may be curtailed.

One of the primary tools lenders can use to accommodate distressed borrowers, while preserving their own rights and remedies, is a forbearance agreement.

In a typical forbearance agreement, the borrower acknowledges that it has defaulted on its obligations, and the lender agrees that it will refrain from exercising its remedies for such defaults as long as the borrower performs or observes the new conditions set out in the forbearance agreement, and, by a certain date, cures the defaults. A lender who forbears from enforcing remedies does not waive defaults, but rather grants a borrower time to work through its issues.

A forbearance agreement is best suited for situations where the lender has assessed that the borrower’s struggles are short term and will improve. Given that conditions for many borrowers will improve as the economy reopens, forbearance agreements will likely be widely used by lenders in the coming months.

While every forbearance agreement is customized to address a specific scenario, most contain common provisions, including:

  • Forbearance Period: The forbearance period is the period within which the lender will agree to forbear from exercising its default remedies under the loan agreement. The forbearance period typically lasts for a specified period of time (e.g., 120 days), subject to early termination by the lender if the borrower defaults in its obligations under the forbearance agreement.
  • Borrower Acknowledgements, Reaffirmations, and Waivers: Borrowers are commonly required to acknowledge and affirm key terms, representations and warranties from the existing loan agreement in the forbearance agreement. These may include waiving defenses, acknowledging amounts due under the loan, and affirming the validity of the lender’s lien, among other things. Lenders also typically condition their agreement to forbear on the borrower waiving claims against the lender based on the loan documents and dealings between the parties taking place prior to the execution of the forbearance agreement in order to avoid lender liability claims.
  • Agreements as to the Financial Terms of the Forbearance: A forbearance agreement will address financial terms, such as the interest rate the borrower will pay during the forbearance period, which may be different from the original interest rate under the loan documents. Additional terms may include the amount of any forbearance fee payable by the borrower, a reduction to the lender’s commitment to extend additional credit, reduction of overadvance or overformula balances, and any deferral or modification to the debt service payment schedule.
  • Additional Reporting: During the forbearance period, a lender may request reporting information in addition to what is required by the existing loan agreement. Such information may include the borrower’s cash flow status and expenses, weekly business updates from the borrower, and access to the property for inspection.

A forbearance agreement can benefit both a borrower and lender. A borrower is given time to work out its business issues or attempt to sell or refinance the property, and a lender can shore up its position by addressing deficiencies in the original loan documents and negotiating more favorable terms as described above, and hopefully avoid having to exercise foreclosure or other default remedies under the loan agreement. For some borrowers, foreclosure and/or bankruptcy may be inevitable. But commercial real estate lenders are often well-served by pursuing a forbearance agreement in order to better align the interests of lender and borrower during the borrower’s recovery period.

If you have any questions about forbearance agreements, or real estate workout issues in general, please contact Douglas J. Austin at 517.377.0838 or at

We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.

Fraser Trebilcock attorney Douglas J. Austin has been at the center of real estate law for over 45 years. In addition to being a shareholder at Fraser Trebilcock, Doug is also the chair of our Real Estate Law department. He can be contacted at 517.377.0838 or at

NEW VIDEO: Understanding Eminent Domain Law

Our country has a rich history surrounding eminent domain – from the brick and mortar that built its foundation – to modern-day infrastructure projects like roads, airports, and bridges. Even our Founding Fathers understood the great impact this would have on private landowners as well as the condemning agencies.

“Interestingly, condemnation law was so critical that the Founding Fathers put it right in the Constitution,” said Mark Bush, eminent domain attorney at Fraser Trebilcock. “Without it, roads, bridges, highways, airports, and virtually all other aspects of the critical infrastructure we use daily would not have been possible.”

For more than 30 years, Fraser Trebilcock attorneys have successfully worked with clients to improve, protect, and defend properties of all shapes and sizes, in a broad range of projects that include: petroleum pipelines, highway construction, airport expansion, county roads, drains, water and sewer projects, and more.

“As a result of that work, I’ve actually represented both condemning agencies and landowners in a multitude of public improvement projects,” said attorney Kirby Albright. “The eminent domain area has very unique procedural requirements and any client that’s affected by the eminent domain process it’s imperative that they have knowledgeable and experienced counsel to help them navigate that procedural process.”

This video gives an interesting look back at the history of eminent domain law in the U.S. and some of the cases we have handled.

Mark A. Bush is a veteran litigator and trial specialist with over three decades of hard-earned experience handling cases ranging from condemnation to wrongful death and catastrophic injury. Contact him for more information on this matter at 517.377.0815 or

H. Kirby Albright has amassed a wide range of litigation experience over the last 30 years, including successful representation of clients on both sides of eminent domain law. He has been elected by his fellow shareholders to serve on the Fraser Trebilcock Board of Directors. Contact Kirby for more information on this matter at 517.267.0538 or

Michigan Supreme Court Rules Landlords Must Request Police Involvement for Criminal Acts

The Michigan Supreme Court has recently held that landlords have a duty to request police involvement when the landlord or its agent is placed on notice of potential criminal acts in a common area of the premises.

Continue reading Michigan Supreme Court Rules Landlords Must Request Police Involvement for Criminal Acts

Mortgage this!

On August 25, 2011 the Michigan Court of Appeals published a final opinion in Richard v. Schneiderman & Sherman, P.C., No. 297353.  (The court had previously issued an opinion on August 11, 2011 which it later vacated on August 22, 2011.)  The opinion is important because it confirms that Saurman (previously discussed on this blog)  is retroactive in nature; however, it limits the application of Saurman by requiring a mortgagor to challenge the foreclosure by advertisement during the foreclosure or eviction proceedings.  The court specifically points out that that if the foreclosed property has already been sold to a bona fide purchaser then Saurman does not apply.

Continue reading Mortgage this!