Property, Lake, and Riparian Law Updates
Discussions on property, water, and lake rights from Attorney Philip L. Ellison at Outside Legal Counsel PLC
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.
Continue reading “Restrictive Covenants Can Be Strictly (and Harshly) Enforced”
We’ve all heard it from those longing for yesteryear–a handshake was enough to make a deal. Unfortunately, that has never been the case in property deals under Michigan law. Continue reading “A Handshake Is Not Enough for Property Deals”
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”
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 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”
In Michigan, property is held by “title”–a legal concept as to who is the owner or are the co-owners of land and homes. However, the declaration of title in a deed also affects who becomes the owner of land and homes at the time of a co-owner’s death. Continue reading “It’s All about the Title When it Comes to Property”
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.
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).
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”
One of the common issues which comes up with clients of Outside Legal Counsel is the claim of adverse possession under Michigan law. Continue reading “Michigan Adverse Possession Law; Simple Possession is Not Enough”
