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 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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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.

LITIGATION 4: Plaintiff claimed installation of hardwood flooring breached the condo bylaws.

Defendants completed the project. Plaintiff did not pay for any of the costs of the project. Defendants moved to compel plaintiff to pay one-half of the costs under the agreement. Plaintiff responded that defendants had materially breached the agreement in several ways, including by denying her the right to supervise the project, by refusing to give her an installation schedule, and by starting work before plaintiff approved of the start date.

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