May 2010

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“Non-Verbal” Parol Evidence Can Create Prescriptive Easement

By Patricia Paruch, Kemp Klein Law Firm

After the MDNR placed a locked gate cutting off access to a two-track road through state land, owners of a landlocked interior parcel claimed a prescriptive access easement over the road. MDNR argued that the property owners did not demonstrate continuous use for 15 years prior to 1998, the effective date of the ban on prescriptive easement actions against the state. (MCL 600.5821(1)). MDNR relied on Killips v. Mannisto, 244 Mich App 256 (2001), which held that to show privity by tacking onto predecessors’ possessory periods, either the parcel deed must include a description of the disputed land, or the parties must have made parol statements transferring the land at the time of conveyance. The deed did not mention the easement, and the various family members who held title for three generations never specifically discussed transferring the road. MDNR also claimed plaintiffs could not place pallets on the road without a wetland permit.

Relying on von Meding v. Strahl, 319 Mich 598 (1948), the Court of Appeals held that the parol rule can be satisfied with no verbal statements when the tacking property owners are “intimately acquainted” and there is “clear and cogent evidence” that the predecessors intended to transfer their rights. Matthews v. MDNR, (2010 WL1328970, Mich. App. No. 288040, April 6, 2010). The Court argued that to require verbal statements would “needlessly impose an artificial requirement” which would deny properly vested rights. The Court also held that even with a prescriptive easement, the property owners needed a permit to place fill material in the wetland.

Practitioners hoping to rely on this holding to establish a prescriptive easement by tacking should accumulate as much persuasive testimony as possible from prior owners concerning the intent of the parties at the time of transfer to satisfy the “clear and cogent” evidence standard.

Smoking Goes Up in Smoke

The Michigan Smoke Free Law (2009 PA 188 or the "Dr. Ron Davis Law") amends Part 126 (Smoking in Public Places, MCL 333.12601 et seq.) and Part 129 (Food Service Establishments, MCL 333.12901 et seq.) of the Public Health Code. Effective May 1, 2010, individuals cannot smoke in "public places," which include "places of employment" (enclosed indoor areas that contain 1 or more work areas for 1 or more persons employed by a public or private employer) and “food service establishments.” The law covers commercial office buildings, malls, restaurants, and the indoor common areas of apartment and condominium buildings. The law exempts gambling areas of casinos, cigar bars, and tobacco specialty stores existing on May 1, 2010. Home offices are exempt when the owner or tenant is the only person working in the home office.

Owners, operators, managers, and persons having control of public places and “food service establishments” must do the following by May 1:

1. Clearly and conspicuously post “no smoking” signs or the international “no smoking” symbol at the entrances to and in every building or other area where smoking will be prohibited;

2. Remove all ashtrays and other smoking paraphernalia from indoor areas; and

3. Ask an individual who is smoking in a public place to refrain from smoking, and if such individual refuses, ask him/her to leave the public place.

There is nothing in the law regarding distance requirements for smoking outside of a building—however, there may be local ordinances that specify distance requirements. With respect to maintenance of apartments and condominiums, the law does not prohibit smoking when maintenance staff performs work within the individual apartments or condominiums (ie. residents are free to smoke within their own residences even if employees of the landlord are working within the residences).

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Thursday, May 13, 2010
2:00–5:00 p.m.
Homeward Bound
Only Fools Rush In : The Fundamentals of Real Estate Due Diligence
Inn at St. John’s, Plymouth
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Thursday, June 3, 2010
7:30–9:30 a.m.
“Groundbreaker” Breakfast Roundtable
Current Issues in Multi-Family Housing Law and Financing
The Townsend Hotel, Birmingham
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July 14–17, 2010
2010 Summer Conference
The New Normal–Working With Today’s Realities
Crystal Mountain Resort, Thompsonville
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