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 No. 307234, May 23, 2013, unpublished).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 No. 305666, July 30, 2013, unpublished), the COA found that the defendants’ lawn mowing to a claimed boundary line for over 20 years without complaint established the boundary by acquiescence and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
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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:
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.