Category Archives: Michigan Real Estate Law

Quit Puttering Around – Slow Property Owner Loses Land to Jack Nicklaus Signature Championship Golf Course

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Introduction

On March 17, 2020, the Michigan Court of Appeals approved for publication its December 19, 2019 opinion in New Products Corporation v Harbor Shores BHBT Land Development, LLC, __  Mich App __; __ NW2d __ (2019) (Docket No. 344211), holding that a property owner abutting a Jack Nicklaus Signature championship golf course lost its rights to a disputed parcel of land when it did not object during construction of the golf course’s 18th hole in the disputed area. The Michigan Court of Appeals determined the golf course’s potential loss of status as a Jack Nicklaus Signature championship golf course outweighed the property owner’s rights in the disputed parcel in light of the fact the property owner did not object to the construction until the golf course was completed and open to the public.

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On the Waterfront: Fighting Lakefront Erosion Through Easement Maintenance

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On February 12, 2020, the Ottawa County Circuit Court issued a decision in the consolidated cases Duke, et al v Wittenbach, et al, Case No 19-5989-CH and Wittenbach v Duke, et al, Case No 19-5995-CH.  The Duke cases are interesting because at first glance they appear to arise out of the intersection of riparian rights and property owner rights but are ultimately resolved through the application of the ordinary easement principles described in more detail below.  Nonetheless, given the increase in Great Lakes water levels, the issues presented in the Duke cases may resurface in future cases, and the Court’s means of resolving the dispute could be applied in any such future cases.

 

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Locked Out? The Court of Appeals Decides Whether an Unlocked Gate Can Be Installed Within an Easement

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Introduction

On January 28, 2020, the Michigan Court of Appeals issued a published opinion in Smith v Straughn, __  Mich App __; __ NW2d __ (2020) (Docket No. 345391), holding that a landowner can install a gate across an easement so long as the gate is not erected for the purpose of interfering with another’s use of the easement and the gate does not actually interfere with the use of the easement. The Michigan Court of Appeals utilized a reasonableness-under-the-circumstances test that will be relied on in future disputes between fee owners and easement holders as to whether a fee owner’s use of the easement interferes with the easement holder’s use.

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The Dangers of Owning Property as Joint Tenants with Full Rights of Survivorship

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There are several ways in which property can be held by multiple owners.  For married couples, one of the most commonly used estates is the tenancy by the entireties.  It provides a right of survivorship that enables a surviving spouse to hold property without having to proceed with probate.  In Michigan, this estate is only available to married couples.  In some instances, parties may seek to mimic the right of survivorship contained in a tenancy by the entirety by holding property as joint tenants with a full right of survivorship.  Similar to a tenancy by the entireties, this estate cannot be unilaterally severed by the act of one of the parties, and it provides an indestructible right of survivorship to the surviving joint tenants.  This may make it appear to be a more attractive option, in some circumstances, to a tenancy in common which is the presumptive estate for unmarried individuals in Michigan.  However, parties seeking to utilize a joint tenancy with full right of survivorship should be aware of the risks that come with such an estate.

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The Evolving Landscape of Sex Discrimination in Housing

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Aimee Stephens worked as a funeral director for R.G. and G.R. Harris Funeral Home in Garden City, Michigan for several years. Throughout that time, she struggled with her gender identity and, in 2013, she began dressing as a woman at work. The funeral home’s dress code was strictly gender-based and Stephens’ refusal to dress as a man, in compliance with the gender-based dress code, resulted in her termination (see more information here). Aimee Stephens filed a complaint with the Equal Employment Opportunity Commission (the “EEOC”), alleging her termination was the result of unlawful sex discrimination. The EEOC brought a lawsuit against the funeral home in the Eastern District of Michigan and the case is now in front of the United States Supreme Court, with oral arguments recently heard on October 8, 2019 (see more information here). Read more

Vacating a Road or Alley under the Land Division Act

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In Michigan, a significant portion of commercial and residential real estate development occurs through the creation of either subdivisions or condominiums. Typically, an owner of a large parcel of land will establish a condominium or subdivision as a means of dividing the land into various smaller lots (called “units” in a condominium) that can be individually sold. Although the more recent trend, particularly in residential developments, is to create condominiums, most older developments were done through creating platted subdivisions under the Michigan Land Division Act, MCL 560.101, et seq., or one of its predecessor statutes.

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

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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

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