State Law “Tops” Federal Land Patents in Michigan “Bottoms-lands” Dispute

Ownership of riparian property automatically includes that portion of a lake’s bottomlands known as the riparian or littoral extension. This principle is well established under Michigan property law. A recent Michigan Court of Appeals decision reconfirms the same but added a further clarification.

Continue reading “State Law “Tops” Federal Land Patents in Michigan “Bottoms-lands” Dispute”

Restrictive Covenants Can Be Strictly (and Harshly) Enforced

Many properties in Michigan, whether on lakes or in cities, are covered by restrictive covenants. Restrictive covenants, sometimes called deed restrictions, are private-party agreements that run with or ‘go with’ the land and control any number of uses and prohibitions for the use of property. These property restrictions are usually created by a subdivision developer or by a vote of a group of property owners.

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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”

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).