this matter your honor is the purpose of the illinois mechanic's lien act is to provide protection to those who provide labor materials or services for the purpose of improving or for the physical improvement of property the decision of the appellate court majority in this case affect the bleep of this race the protection that tens of thousands of design professionals throughout the state have sought under the mechanic's lien act for well over one hundred years both lower court decisions in this case ignored this court's precedent established for even versus right her and crowing versus miers precedent that has existed in this state for over one hundred years y into the facts of this case yet that is why we are here today we are here today because the appellate court majority decision changed illinois law the facts of this case are very straightforward and they play themselves out in real estate transactions while the state on a daily basis in april two thousand and eight burke contracted with harold and glen harkins to provide engineering services in furtherance of the harken desire to develop a track into a residential subdivision however at the time that that contract was entered into that property not own by the heart it was owned by carol shame so in august of two thousand and eight the harkins purchased the property from shank and then after that the mortgage from the act police heritage bank and then as things happen in two thousand and eight development went on there and the harkens filed bankruptcy the first lien wasn't valid and the court held that it was invalid because one of the services that burt had provided it not provide an improvement or a benefit to the land and secondly that shane had engineer such as burke to maintain a mechanic's lien on a real piece of real estate the engineer must establish that its services resulted in either improvement on the property or enhancements in the value of property opportunity to establish clear guidelines for trial courts to use when they are confronted with design professionals and what services those design national buy and determine what those services are  here to ask this court clear guidelines for the lower courts of use when these types of services are provided to one from the owner of the real estate knowingly permits to contract for those services now under illinois law there are two requirements in order to maintain a mechanic's lien first the claimant the lien claimant must have provided one of the listed services under section one of them and explain act this is the issue of lien ability or whether or not the services are available the second is that the services must be performed or either directly for the owner under contract with one whom the owner is authorized on credit or the or for one whom the owner knowingly permits the contract the first issue was actually raised by happily and it deals with the statutory interpretation of section one of the mechanics leanings with clear it's first position of mechanic's lien act section one is is clear and that one design professional section  provides services under section one of mechanic's lien at when they provide services or design services for the purpose of improving property those services by definition arleen a bill now the bank asks interpret section one of in a way that was eerily limit the lien rights of architects and engineers and for all intents and purposes a limited lien rights for land surveyors and property managers are you arguing that architects work is the same as engineers in the statute for the purpose of improving or for the improvement of real property that answer questions so with respect to the statutory argument the issue really turns on this comma versus s remove any house there too and the phrase or perform services as an architect or a structural engineer for any such purpose now the bank makes much out of this common and according to the bank's argument they insist that with this need when you read the particularly because they clearly and if you look at the statute there's nothing in the legislative history that we could find in grants it's scary but that would make sense to have limited the rights of architects engineers was clear that had to be that it was for one purpose of improving property when they were doing that work because you will again we cited or have a look at the statute related just the lancers and what land surveying it and you would see that those services have nothing to do with raising lowering or moving a house so it's just basic common sense is that act comma was an inadvertent change that in fact should have remained a semi colon we wouldn't be having this discussion the majority how this i say did that hurt services were not meaningful because birds engineering did not hands the value the property was no prove meant to the property we submit that this is not the law of the state under section one of the can if we now we believe there are problem now the pope has is applied when a contractor instructs a building goes on and that has looks at whether or not there was a benefit to the property or whether the value of the problems increase as a result of  rather this approach simply were the services that were performed by the design professional what they want was one of the listed design fashions covered by the act and to was it done for the purpose of improving the property under this task architects engineers land surveyor and property managers for that matter do not need to plead and prove that their services enhanced the value of the property or resulted in the construction mechanical improve we would submit is understand if this were to look at the history of the mechanics lean laws in this state or that or the mechanics lean pinions in this state me again there are many a lot of us use very old case law because there's not a lot that there are very few cases if you look at that are really on the test the crawling times and that's because very few times architecture engineers or land surveyors left in a position where they are not paid an elite but to be clear decision knowing as the descend correctly observed it's clear as i stated to justice for the architect drawings specifications architects engineers plan not result in a physical improvement sprecher they are not a physical thing themselves they result in improvements in property and it's clear that they are prepared for a possible war in the words of section one of the managers who perform any service or incur and use fans for any purpose are entitled julie in this case the services that burke performed are clearly legal under the act as the record demonstrate they prepared a pla subdivision which was ultimately recorded one house was constructed on a lot and the services that burke provided facilitated the destruction of that house on that block and furthermore the engineering services that burke did perform would allow for the construction  the services are fully lien of all that were performed now again remember the one thing that sort of gets messed up in this is that the service is commenced in august i'm sorry in april of two thousand and eight but continued far beyond august of two thousand and eight when hearkens became the owner of the property all under one contract so there would be no there beat really no basis to say what we're going to look at what was pre purchase and we're not going to allow that to be included in the lean to consider everything post purchase essentially what that would be doing is advocating or had almost any application of the after acquired title doctrine to the situation and we neither of us have discussed yet required title doctrine the the doctrine here but really in terms of attachment your attachment question it would be an evil of two thousand and eight and all the values all services would be legal that fact what justice that and had done was it a very detailed examination of why architects and engineers lancer there is are entitled to liens i got that part of it but then there's a there is a state at the very beginning of the dissent that talks about a concept that justice freeman mentioned at the very end of the dissent where he recommends that if you return to the trial court for a determination of valuation our belief is consistent with the way the mechanic's lien is treated it is from the time of attachment until the services are completed is how you would determine the value of the services if you were to extend the the logic to what is a common situation that you would find yourself in where a architect would be hired to build buildings and they're hired before the property is sold and they do all of their work on the front end before the property is purchased by their plant and then their client purchase the property and all they do afterwards is complete the construction ministration phase and they go on paid under that shanker miss shayne and didn't know didn't make the contract and really was nowhere is there in which she was aware she wasn't aware that goes to the issue of attachment that's the knowingly permitted exception and that's one of the things that we were focused on contract and a failure to object and i would recommend the court look at the case of construct illinois versus kaiser which is a more recent decision but in that case in the defense of the defendant hand made a very similar argument to the argument that the bank made which is that you know how would we know i would be know that they're that they're what we deal with we don't know right away while the port in construct sad the minute that you know you object and if you object the minute that you know that you are not knowingly permitting the work to be done but the record shows that this shed knew that the services were being performed by burke for the sale of the they are a third party mortgage lienholder which is important in this case also it's important this case is that it is not a situation where there is an on track directly to the owner it is a contract with a third party and it is under the lien situation there are there is a requirement under all my law for an improvement to enhance the value of the property and for the actual owner to accept were to receive a benefit and there's really two analytical analytical deficiencies that believe in the in the appellants arguments in their positions one is that they fail to recognize the overwhelming with the owner and contracts that he'll with third party contract contracts not directly and those cause their arguments to get off the rail first that the this court that construe the eighty nine five version and the one nine hundred twenty nine version of the case while they're somewhat similar to the current version there are some differences as far as the the commas and the semi i separate those just so it's a little easier to to review those and a plain review of the third subsection states that that language regarding architects and engineers  states that for any such purpose that has to refer back to the language within that subset with those semi colons now even if you're even if it's argued that it can refer back to prior language even outside such purpose revert back to the language in a different subsection subsection one day the which is the purpose of improving and they make that leap and state that you go from third subset and subsection one b up to subs up to said section one way to that language and first of all that's not how you would construe the statute and even if you did it's a with the the two subsets i guess before that those there's in the semi colons there's language regarding excavation the landscaping and then the first one is essentially buildings and houses so if the court would construe the for any such purpose language to go back through subsection b then that would cover services by the land surveyors and property managers with respect to buildings and structures property managers provide services for buildings and structures which is referenced in the first part of section one be in the same for later surveyors that they can provide services respond to your question i believe that you think that if the court would construe the phrase a purpose back through just subsection one be itself that it reconciles that it gives it gives the facts to the language that they need for their purposes and that is the purpose of proving but again that takes the question the question is which the powers counsel has not answered and reframe or in argument my i think that you have to insert for the purpose of and then the improvement whatever the purposes are and that's that's why there is there was no overturning of it pro in case state improvement under section one b or it wasn't that at that time that it was it was for the in this case in our situation it's for the purpose of constructing a building or house apply under the analysis of power and in this situation where it's a knowingly permitted situation if under the opponent's position the only thing i would have to happen is that you might have five or six suitors for the purchase of some commercial property and they each come up to the seller and say i'm not sure if i want to buy or not i'm going to go talk to my engineer and find some things out that in itself under the that's if that is what the court would adopt that would have huge ramifications on the sellers of russia marshal property in the duties that they would have to do would be imposed on them by just is that the actors would be strictly construed and so that the burden and the onus should be upon the lien claimants because they are asking for really extraordinary purchasing property you should be able to pretty easily find out who the owner is and if it's not that the person you're contracted with is not the or property then the onus should be  potential lien claimant to determine what the situation is what kind of knowledge and it's it's clear that it's stated in our brief it's a situation where not quite situations in the cases that have been provided by the talent that there's a owner that has virtually no knowledge in this case the only them we believe strongly strongly in that is the situation with not only permitted to say person the owner has knowledge and the owner then needs to be able to object well the issue of the improvement and the benefit comes into play with regard to whether or not the owner needs to object so essentially whereas there are some cases where it's not explicitly stated that improvement needs to be made or a benefit needs to be received by the owner that's the trigger event for the duty to object in order for the owner to be required to object there has to be some approval that they see or they have to receive a benefit and in that case it would be an equitable for the owner to sit back not object it was a case where the railroad licensed property to a licensee and they put in some electrical cable require them to to object to it even though they had valid of it and presumably accepted it because it was part of their  to the hit on the public policy issue again a situation where multiple potential buyers come into your cellar and just make a statement as to the fact that they may i see that my again that afternoon your honors there were a lot of things that my skin opponent brought up and a lot of this is also addressed in our briefs and i don't think that it's necessary to delve into it  tremendous detail but there are some things that i want to address the first is with respect to the strict construction strict construction of a mechanic's lien act as a matter of when you get into it once you're in the mechanically now it's to be liberal construction really related to perfection the way the timing whether it was of your subcontractor ninety days whether if you're asked to third parties recorded within one month after the last date that strict construction i don't think that interpretation of section one turns on a question of strict construction in fact i would submit that it turns on a question of liberal construction once you're within the act it's to be liberally construed then with respect to this issue on the purpose of improving the lattice on the on that they have built houses on this residential development that work services weren't for the purpose of that improvement clearly you need a lack of subdivision in order to  subdivision so i think that even the notion that a plot of subdivision is not for the purpose of improving is without merit the fact of the matter is what the trial court said is it did not improve the property the trial court never looked at the question of whether it was for the purpose of improvement and with respect to this dichotomy between section one and section one b section one a is says you're entitled to a contract interest into a contract with one knowingly permitted to contract for the purpose of or in the improvement of real property shall be in the common that's what section one section one d defines what it means to improve and section one besides for the purpose of for the purpose of improving improvement or an impertinence so that would follow into roads sewers and with respect to land surveyors there plaid of survey or because those are related to the purpose of improvement or  are so again i think that the act itself covers things i don't think that there should be much of the debate and in fact surprising that we get into this discussion i don't think that anybody who practices in this area would ever think that a survey or a pl subdivision is not amenable activity under the act performed by a lancer there is for the purpose of improving and therefore it's an improvement with respect to those benefits are this is this is this issue that i tried to segregate between  his work and then stopped in later selves property to meit same situation we have here exactly the same way should have and you see this court says nothing about the benefit to soc and they said nothing about of improvement having to be made to those two parcels of property they say that crown is entitle to will mean for the services with respect to the performance of now there's this issue on this public policy and and he says council says that what will you do if you have you own a piece of property i have six sued and they're all interested in the well i w simply has to say i am not authorizing anybody to perform services with respect to this property at that point you have cut off any leanings it's the same in the landlord tenant context in mechanics lean in the area if you look at the way the courts come out they look at the lease if the lease is in those cases civically said the landlord does not consent to the tenant making any improvements to the property the landlord has not knowing that so i would submit that in that situation it's far easier for the salary a parcel of property to advise the purchaser the potential purchasers that it will not allow any services to be performed with respect to the property than the reverse which is to require each design professional to independently investigate and bend over by the property owner that they are going to be providing services in the scope of services as they're going to be provided and then with respect to those benefits if again there is no requirement for benefits to be provided by an architect engineer or land all that is required under the act is that they provide services for the purpose of improvement there's no case