SBM Real Property Law Section eNewsletter

November 2013

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Howard A. Lax, Bodman PLC

Patricia Paruch, Kemp Klein Law Firm

Busy Season for Property Rights Opinions

By Scott Timmer, Miller Johnson

1. The Michigan Supreme Court vacated a Court of Appeals (COA) decision that the defendants established a prescriptive easement to construct a dock and moor boats. The Court relied on the plaintiff's prior owner's affidavit that for thirteen years prior to the sale, "any use of a dock or boat moorings on or at the easement was done with our permission and consent." The court also relied on Fractional Sch. Dist. No. 9 in Waterford and Pontiac Twps., Oakland Cnty. v. Beardslee, 248 Mich 112(1929), "holding that a period of permissive occupancy cannot be tacked onto a period of hostile occupancy, to show adverse possession."

2. Weeks earlier, the COA issued a detailed opinion describing the requirements for establishing adverse possession or, alternatively, acquiescence to a common boundary. Arbour v. Albert (Mich. App. No. 307234, May 23, 2013, unpublished). The plaintiffs purchased a parcel in 1994 adjacent to the defendant's parcel. From 1995 on, the plaintiff/appellants used a disputed area between the parcels for various outdoor purposes. However, the defendant's father had also planted trees, mowed, and installed a pet cemetery and satellite dish there. The Court held that evidence of adverse possession must be "clear and cogent" as defined in McQueen v. Black, 168 Mich App 641(1988), which approaches "the level of proof beyond a reasonable doubt," such that "there must be little doubt left in the mind of the trier of fact as to the proper resolution of the issue."

3. In Andrews v. Alter, (Mich. App. No. 305666, July 30, 2013, unpublished), the COA found that the defendants' lawn mowing to a claimed boundary line for over 20 years without complaint established the boundary by acquiescence and affirmed that the defendant acquired a prescriptive easement for a seasonal dock.

Courts will require more than just a preponderance of evidence to support adverse possession, prescriptive easement, and acquiescence claims. The evidence should be clear and unrefuted.

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November 5, 2013
2013-2014 Homeward Bound Series
Multi-Family & Manufactured Housing Deals: Forms, Customs, & Problems
2:00-5:00 p.m.
Inn at St. John's, Plymouth

Save the Date
March 13-15, 2014
Winter Conference 2014
Palazzo Resort Casino Hotel, Las Vegas

Interested in writing a future article for the e-Newsletter?
Please contact co-editors:
Howard Lax at or Patricia Paruch at

2013 Amendments to Michigan's Wetland Protection Program

In July, 2013, the Michigan Legislature approved a number of revisions to Michigan's wetlands regulatory scheme by amending various sections of the Michigan Natural Resources and Environmental Protection Act. 2013 PA 98 (SB 163). The Michigan Legislature's analysis of PA 98 notes that among other things, the amendments:

  • Require MDEQ's decision on a permit application to be based on evidence meeting the standards for admission of evidence in contested cases. PA 98 also revises standards used by MDEQ to deny a permit and extends them to any review upholding the decision. Where the decision is based on scientific information, those standards incorporate the language of the Michigan Rules of Evidence, MRE 702, for admission of expert testimony.
  • Establish a rebuttable presumption as to the availability of a "feasible and prudent alternative" to a proposed use impacting a wetland. The amendments also revise the conditions for establishing an alternative.
  • Require MDEQ to establish a program of grants and loans for eligible municipalities to establish wetland mitigation banks.
  • Revise the exemptions from permit requirements for farming, horticulture, forestry, lumbering, and ranching.
  • Revise the requirements for improvements to public and private drains as those improvements impact wetlands.
For a related review in detail of Michigan's current wetland regulatory scheme, its interaction with federal wetland regulation, and the 2013 amendments, see the article "2013 Public Act 98 Significantly Changes Michigan's Wetlands Protection Program" by Michael H. Perry, Fraser Trebilcock Davis and Dunlap PC, in the Summer 2013 issue of the Michigan Environmental Law Journal, pp. 32-58. Also, past issues of the MELJ are available through a link on the Environmental Law Section's home page.

The views and opinions expressed in these articles are those of the authors, and they do not reflect in any way the positions of the State Bar of Michigan or the Real Property Law Section. These columns are meant for informational purposes only and should not be construed as legal advice.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the Internal Revenue Service, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, by any person for the purpose of (i) avoiding tax-related penalties or (ii) promoting, marketing, or recommending to another person any transaction or matter addressed in this communication.