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REAL ESTATE 47: Governmental entity can be sued if case falls within a statutory exception.

This case involves the disposal of sewage at a single-family residence located in a city in Michigan.

Plaintiffs purchased the property from defendants. During the sale process, plaintiffs were provided with a disclosure statement which they allege indicated that the property was connected to the City’s sewer system. According to plaintiffs, after moving into the home, they began experiencing respiratory difficulties, eye infections, and skin irritations related to sewage gases therein. Plaintiffs hired a plumber, whom they claim confirmed that sewer gases were escaping into plaintiffs’ basement.

The plumber allegedly also discovered that the property was not connected to the municipal sewer as indicated on the disclosure statement, even though the City was billing plaintiffs for sewage disposal. Rather, the property was connected to an Onsite Sewage Disposal System (OSDS), which, according to plaintiffs, was later determined to be in such disrepair that it was completely failing. Plaintiffs claimed that they were advised to abandon the OSDS and connect to the municipal sewer system.

Plaintiffs alleged that they attempted to address the issue with the City, but the City did not take any action. Plaintiffs claimed that representatives of the City verbally acknowledged to them that the City knew that the property was not connected to the municipal sewer and that at least one seller of the property had previous communications with the City regarding the same issue. Plaintiffs alleged that, despite its knowledge that the property was not connected to the municipal sewer, the City continued to bill them for sewage on quarterly invoices.

Ultimately, plaintiffs filed a five-count complaint in the circuit court against several defendants. Counts III and IV of this complaint were against the City. In Count III, plaintiffs alleged that that the City violated Wayne County Ordinance 99-527 by failing to facilitate a connection of the property to the municipal sewer and by failing to keep accurate records regarding the existence of the OSDS. In Count IV, plaintiffs alleged that the City over billed them for sewer services that it knew were not being provided and that the City was unjustly enriched by its retention of plaintiffs’ payment of these charges.

The City filed a motion for summary disposition arguing that it was immune from suit and that plaintiffs failed to exhaust their administrative remedies before filing suit.

The circuit court denied of the City’s motion.

Governmental entities are generally immune from tort liability. A governmental entity can only be subject to suit if a plaintiff’s case falls within a statutory exception. As such, it is the responsibility of the party seeking to impose liability on a governmental agency to demonstrate that its case falls within one of the exceptions.

A plaintiff pleads in avoidance of governmental immunity by stating a claim that fits within a statutory exception or by pleading facts that demonstrate that the alleged tort occurred during the exercise or discharge of a nongovernmental or proprietary function.

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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