In Michigan, as in most states, the state authority has significantly limited access to public places, stores, restaurants, movie theaters, offices, and other businesses through the issuance of executive orders prohibiting such access. For businesses whose viability depends on the public’s ability to access that business’ physical location, the issuance of such orders has resulted in a loss of use of the property and a severe interruption in business. For some, their insurance policies may appear to insure against loss of use of the insured property when a civil authority prohibits the insured from using the insured property, such as through issuance of an executive prohibiting such access, or there is damage to the property resulting in its loss of use. While it may seem as though the business climate created by the Coronavirus (COVID-19) is unique to our generation, this is not the first time a Governor’s executive order has impacted businesses in Michigan and there are several cases from the Michigan Court of Appeals which can provide guidance.
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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.
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.