Can I Be Awarded Money Damages for Interference with an Easement

The decision to bring a lawsuit against a trespasser or neighbor is a competing question of strategy and goals. Does one seek money damages, an injunction, or both? The easier case, in a practical sense, is just to obtain a court order to halt a trespasser from his or her illegal acts. Moreover, seeking money damages for loss of the use of an easement has been difficult because there has been a question whether such a legal remedy even exists under Michigan law. That has now changed. Continue reading “Can I Be Awarded Money Damages for Interference with an Easement”

Deadlines via the Statute of Limitations Matter

When bringing suit, one of the common defenses property law attorneys (like the one at OLC) look for is known as the statute of limitations. It is also one of the most misunderstood aspects of property law, even for judges.

Most lawyers know that when filing a lawsuit, there are time limits on when to file. For contracts, it is six years from the breach. For personal injury, it is three years from the accident. For FOIA requests, it is 180 days. It all depends on the nature of the claims.

Under Michigan property law, the applicable statute of limitations depends on the nature of the claim and how the judge views the claim. The limitation runs from the date it “first accrues.” Continue reading “Deadlines via the Statute of Limitations Matter”

Michigan Wetlands Have Complicated Compliance Regulations

Michigan law protects property deemed a wetland. Wetlands are define to include “land characterized by the presence of water at a frequency and duration sufficient to support, and that under normal circumstances does support, wetland vegetation or aquatic life, and is commonly referred to as a bog, swamp, or marsh.”

If property is part of a wetland, the owner is prohibited, without a permit, from depositing/placing fill materials; dredging or removing soil or minerals; maintaining any use or development; or draining surface water. “Fill material” is defined as “soil, rocks, sand, waste of any kind, or any other material that displaces soil or water or reduces water retention potential.” Continue reading “Michigan Wetlands Have Complicated Compliance Regulations”

Ditch the Co-Owner with a Partition Action

So the great idea of co-owning a recreational property seemed like a good idea at the time. Expenses can be shared. The property could be regularly used. Many hands make light work of a vacation home.

Then reality sets in.

Squabbles over taxes and electric bills fill the air. Passive-aggressive texts of what you were “supposed” to do that last time the property was visited. Hurt feelings and disproportionate expenses abound. You need to get out but the others do not want to sell or buy you out. What can you do?

File what is known as a partition action.

Under Michigan law, any person who has an estate-in-possession in the lands (except for rights of reversion or remainder) may seek to partition or divide the property co-owned by two or more owners.  Physical division of the jointly-held property is the preferred method of partition, but the court may also order sale and division of the proceeds when it concludes that an equitable physical division cannot be achieved.

If property owners own different percentages, the Court would normally divvy up the property in the respective proportions. However, where such a division results in an unfair amount, the court may award money payments to offset the difference.

In other words, if you want out, you can get out by filing a partition action. You don’t have to stay with the one you bought with.

Walking on the Wild Side Is Permissible and Not Prescriptive

In Michigan, prescriptive easements “arise” where a person merely uses, but does not possess, the land of another for a particular purpose without permission for 15 years. The legal fiction behind this claim is “founded on the supposition of a grant” of property rights because the applicable statute of limitations has run.

The legal claim of prescriptive easement is highly similar to an adverse possession claim. At its basics, Michigan law provides that when someone uses another’s land in the same manner for 15 or more years, the trespasser can claim that he or she now has a proper permission, i.e. a prescriptive easement.

However, a common overlooked exception to a claim of prescriptive easement is the “wild lands doctrine.”

When a 15+ year trespasser goes to court and claims to have a prescriptive easement, it must be proved 1.) the use was not based upon permission of the current landowner, 2.) the use was “hostile” to the owner. Hostility has a specialized legal definition, meaning to act contrary to the legal interests of the property owner.

A few early 1900 decisions of the Michigan Supreme Court recognizes, however,  the “general custom” of owners of “wild and unenclosed lands” implied providing ongoing permission for the public to pass over such land without hindrance.  In other words, the use for a way of passage of unenclosed vacant land not in use by the owner, or even mere possession of it, is not in itself hostile to the owner; a lack of hostility means a lack of successful prescriptive easement claim.

This is known as the wild lands doctrine. It has been successfully used to kill prescriptive easement claims.

Legal authority: Du Mez v Dykstra, 257 Mich 449 (1932); Menter v First Baptist Church, 159 Mich 21 (1909).

Permits Are Required for Many, But Not All, Shore Land Activities

Beachgrooming is the “ten dollar word” for cleaning up the beach area on a portion of one of the Great Lakes. As a surprise to many, it traditionally required not one, but two permits: one from the state via the Michigan Department of Environmental Quality and one from the federal government through the Army Corp of Engineers.

Continue reading “Permits Are Required for Many, But Not All, Shore Land Activities”

Michigan is a Water Wonderland

Mlive.com has posted a unique story involving water usage in Michigan. For the recent ten year span, Michigan residential and commercial users consumed 38.5 trillion gallons of water from the Great Lakes. In perspective that’s about 59 million Olympic swimming pools. The Great Lakes (not including underground water sources) has about 6,000,000,000,000,000 gallons of water.

Big thanks to the continental ice glacier for this sweet quality of life resource. Such a resource provides the legal “riparian” right to extract water for domestic (i.e. household) use.

Interesting, only a tenth of utilized Great Lakes water was for residential or public water supplies while over 85 percent was consumed for, of all things, electricity generation.

But despite the high extraction of water from the Great Lakes, we won’t be running out of water anytime soon. Water levels in 2016 are up from last year’s reduction.