Amending Deed Restrictions: Giving Meaning to Successive Terms without Ignoring Declarant Intent

Introduction

Restrictive covenants in Michigan are valuable property rights and have been effectively used to assist in the orderly development of Michigan communities.  The rights contained in restrictive covenants are used by developers to implement their community visions and by property owners to protect and enhance the value of their homes.  Once adopted these provisions often require unanimous consent to change or modify by default, however, in many cases the original declarant includes an amendment provision to permit a stated percentage of lot owners (or other interested parties), less than all, to adopt an amendment.  The effective date of an amendment, even if validly adopted, may be subject to interpretation if the restrictive covenant creates successive terms.  Any party seeking to adopt an amendment to its declaration should be aware of these risks and the potential impact of the expiration of a period of time contained in their declaration. Read more

MICHIGAN COURT OF APPEALS RULES IN FAVOR OF TOWNSHIP IN ZONING ORDINANCE DISPUTE OVER SHORT-TERM RENTALS

BACKGROUND

On October 25, 2018, the Michigan Court of Appeals issued an unpublished opinion in the matter of Concerned Property Owners of Garfield Township, Inc v Charter Township of Garfield, unpublished per curiam opinion of the Court of Appeals, issued October 25, 2018 (Docket No. 342831). The Garfield case involved the interpretation of a zoning ordinance that addressed short-term rentals of residential properties in certain districts. In Garfield, a number of homeowners frequently rented out their homes for short-term intervals, usually for about one week in duration. In September 2013, the Garfield Township Zoning Administrator expressed an opinion that the zoning ordinance then in effect, called “Ordinance 10”, permitted short-term rentals.

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“Necessary” Farm Operations under the Right to Farm Act: Township of Williamston v. Sandalwood Ranch, LLC

Introduction 

The Michigan Court of Appeals recently provided clarity regarding interpretation of the term “farm operations” under the Michigan Right to Farm Act, (“RTFA”), MCL 286.741, et seq., in Williamston Twp v Sandalwood Ranch, LLC, ___ Mich App __; ___ NW2d ___ (2018) (Docket No. 337469).  In its decision, the Court of Appeals held that in order for a use to be protected under the RTFA that use must be “necessary” for farm operations under the RTFA, and while “absolute necessity” was not required, such a use must be more than just a matter of convenience to warrant protection.

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Hirzel Law on Fox 2 News involving controversial Westland boundary dispute

Hirzel Law, PLC has been hired to resolve a boundary dispute between the owners of lots in a platted subdivision and the developer of a proposed 88 unit site condominium in Westland, Michigan.  The attorneys at Hirzel Law, PLC have had previous success in representing clients on issues related to adverse possession and acquiescence.  The proposed development is on the site of the former Nankin Mills Elementary School that closed in 2006 and was demolished in 2014.  The boundary  between the subdivision and proposed development has been established by fence lines for decades.  The developer has thus far refused to maintain the existing boundary lines and has submitted plans that would require the removal of portions of fences and landscaping from various yards in the subdivision.  The news story can be viewed here.

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The Growth of Form-Based Codes in Michigan Zoning

            In Michigan the governmental regulation of land use is largely achieved through the Michigan Zoning Enabling Act, (“MZEA”), MCL 125.3101, et seq.  The MZEA allows local municipalities to adopt zoning ordinances which regulate the physical appearance and use of property within their jurisdiction.  For decades zoning ordinances adopted pursuant to the MZEA or its predecessors focused primarily on regulating the use of property, and not necessarily on the physical form of the property and its buildings.  Over the past two decades there has been a slow and gradual shift from use-based zoning to zoning based on the physical form of property, especially in downtown areas.

 

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Court rules that Michigan HOA cannot collect assessments after restrictive covenant expires

In Deghetto v Beaumont’s Seven Harbors White and Duck Lack Association, issued June 22, 2017 (Docket No. 330972) (Unpublished Opinion), the Michigan Court of Appeals recently ruled that a homeowners’ association could not continue to collect assessments after the restrictive covenant expired.

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In Case of First Impression, Michigan Court of Appeals Rules that Foreclosure by Advertisement Sale Surplus Funds Must Be Distributed According to Priority of Interests in the Foreclosed Property

On May 9, 2017, the Michigan Court of Appeals issued an opinion in ‘In re $55,336.17 Surplus Funds.  The Surplus Fund case is important as the Court was called on to interpret the procedure for distributing foreclosure sale surplus funds and determining the priority of parties claiming an interest in the surplus funds.

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