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REAL ESTATE 35: An easement holder has the limited right to use the land but does not have the right to possess that land as does the fee owner of the land.

In 1990, a judgment was entered granting plaintiffs’ the prescriptive easement at issue, stating in relevant part:

IT IS FURTHER ORDERED that said easement shall be for the benefit of Parcels I and II, and more specifically:

A. For the purpose of providing a driveway for and ingress and egress to and from Parcels I and II; and,

B. to provide for parking and all other activities reasonably associated with driveways in residential areas, the uses in this Section B., however, to be only for the benefit of that portion of the easement immediately contiguous to Parcel I.

IT IS FURTHER ORDERED the owner of Parcel I shall maintain and be responsible for all costs incurred maintaining that portion of the above easement immediately contiguous to Parcel I.

In 2015, plaintiffs purchased the property at issue, i.e., Parcel I. Shortly thereafter, plaintiffs constructed a second garage on the parcel and installed a cement driveway that extends into the prescriptive easement.

In September 2016, plaintiffs proposed to modify the easement which included relocating the gravel roadway, removing the turnaround island, and extending the radius of the turn. Plaintiffs sought approval from the current owners of the servient estate, defendants, and such approval was denied.

Plaintiffs then filed this action. Accordingly, plaintiffs requested declaratory relief, allowing them to make the proposed modifications to the easement as depicted in the gravel drive improvement plan and prohibiting the defendants from interfering with their maintenance of the easement.

Further, plaintiffs sought to move their driveway significantly closer to the defendant’s home which reduced the size of their backyard while increasing the size of plaintiffs’ front yard. And the defendants were not interested in selling the easement parcel. Moreover, the defendants noted, plaintiffs then-recent renovations were in violation of the building permit they had obtained in that plaintiffs’ concrete driveway encroached on the defendants property and other concrete slabs increased the impermeable surface and thereby the flow of drainage water onto the defendants property in violation of the drainage ordinance.

Defendants moved for summary disposition under MCR 2.116(C)(8) and (C)(10). Defendants argued that plaintiffs had no legal right to relocate their driveway onto adjacent property. The fact that plaintiffs created a problem by constructing a second garage was an insufficient reason to unilaterally modify the existing prescriptive easement. Accordingly, defendants argued, this case must be dismissed.

On July 12, 2017, the trial court issued its opinion denying defendants’ motion for summary disposition. The court first noted that because defendants’ motion relied on evidence beyond the scope of the pleadings, summary disposition under MCR 2.116(C)(8) would be improper.

On December 18, 2017, a bench trial was conducted. On December 20, 2017, the trial court held, because the improvements were unnecessary, and only desirable or convenient because of conditions created by plaintiffs, they were not permissible. The court noted that the cul-de-sac had been in the same state for at least 57 years and met plaintiffs’ necessary needs.

Are you involved in a real estate dispute in Michigan? Are you seeking an efficient and effective resolution to a property litigation matter?

If you are facing a residential or commercial real estate, seek the advice of an experienced and skilled real estate litigation attorney at Aldrich Legal Services in Plymouth.

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REAL ESTATE 40: Tax Tribunal denied petitioner’s claim of a principal residence exemption (PRE).

MCL 211.7cc(2) provides that an owner of property can claim the PRE by filing an affidavit that must state that the property is owned and occupied as a principal residence by that owner of the property on the date that the affidavit is signed and shall state that the owner has not claimed a substantially similar exemption, deduction, or credit on property in another state.

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REAL ESTATE 38: Plaintiff fails to make land contract payments.

The land contract stated that T Company sold real property to plaintiff. The land contract further stated that if plaintiff failed to make a monthly payment, T Company could execute the quitclaim deed, thereby terminating plaintiff’s rights to the real property under the land contract.

CONTRACTS 6: Do you understand the clauses in your Purchase Agreement?

The trial court granted defendants’ motion for summary disposition, concluding that the claims against the realty companies were barred by the valid release contained in the purchase agreement and that the claims against sellers were required to be resolved in arbitration because they fell within the scope of the arbitration clause in the purchase agreement.

DIVORCE 29: Spousal support in gross is non-modifiable, whereas periodic is subject to modification.

As the name implies, periodic spousal support payments are made on a periodic basis. Periodic spousal support payments are subject to any contingency, such as death or remarriage of a spouse, whereas spousal support in gross is paid as a lump sum or a definite sum to be paid in installments. In addition, one major difference between the two types of spousal support is modifiability. Spousal support in gross is non-modifiable, whereas periodic spousal support is subject to modification pursuant to MCL 555.28.1.

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PROBATE 28: Probate court enters a protective order providing support for a community spouse.

A probate court’s consideration of the couple’s circumstances cannot involve an assumption that the institutionalized spouse should receive 100% free medical care under Medicaid or an assumption that a community spouse is entitled to maintain his or her standard of living. Medicaid is a need-based program, and a Medicaid recipient is obligated to contribute to his or her care.

REAL ESTATE 36: Plaintiff argued that her claim was not time-barred because it did not accrue until the grandmother’s death.

Plaintiff’s interest in the subject property is best characterized as a remainder estate, because her right to possession of the property was postponed until the occurrence of a specific contingency, that being the deaths of the grandparents. Plaintiff pursued this action within the 15-year limitation period; accordingly, this action is not barred by MCL 600.5801(4).

LITIGATION 6: The terms of the agreement prevails over the course of performance.

The trial court determined that under the UCC, the express terms of the parties’ agreements prevailed over the course of their performance and course of dealing. Although a course of performance may show that parties have waived a specific contractual term under MCL 440.1303(6), the statute does not similarly provide that a course of dealing may demonstrate waiver.

PROBATE 27: Petitioner filed a petition for mental-health treatment.

In support of the allegations, petitioner attached clinical certificates from a physician and a psychiatrist who observed respondent at the hospital. Both doctors diagnosed respondent with bipolar disorder, determined that she displayed a likelihood of injuring herself and that she did not understand the need for treatment, and recommended a course of treatment that consisted of 60 days of hospitalization and 90 days of outpatient care.

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FAMILY LAW 32: Trial court committed error in failing to address whether there was an established custodial environment.

On appeal, plaintiff argues that the trial court failed to make any findings regarding (1) the child’s established custodial environment, (2) the child’s best interests regarding the grant of primary physical custody to defendant, (3) the child’s best interests with respect to parenting time, and (4) the child’s best interests pertaining to the parties’ dispute over daycare.

PROBATE 25: Daughter removed as personal representative of the estate.

the probate court determined that Daughter J had managed the estate in a manner that promoted her own interests as a beneficiary over the interests of the estate. The probate court found that such management demonstrated mismanagement of the estate and that removal of Daughter J was therefore in the best interests of the estate.

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REAL ESTATE 32: Plaintiffs and defendants executed a second easement.

Plaintiffs requested that the trial court, either through reformation of the First Easement or interpretation of the Second Easement, quiet title in favor of plaintiffs and declare them to be the owners of an easement to access Lake Superior through the ravine on defendants’ property, enjoin defendants from interfering with their use of the easement, and order compensation for damages to the stairs.

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