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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 44: Rule of acquiescence in boundary disputes.

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FAMILY LAW 37: Referee recommended against changing legal custody or parenting time.

Plaintiff requested sole legal custody, arguing that she and defendant had difficulty co-parenting and that defendant would not agree to medical treatment for the diagnosis and treatment of ADHD, need for orthodontic work, and need for vision testing and glasses. Plaintiff also requested an alternating weekly or biweekly schedule during the summer, which would increase her overall parenting time.

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

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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).

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