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REAL ESTATE 78: Nuisance action filed against neighbor for drainage issue.

This dispute between neighbors deals with drainage. Both sides complain that surface water pools on their land and that the opposing party is responsible.

Nuisance Action

The T Family own a farm next to B’s home. In approximately 1970, drainage swales were installed to allow water flowing on the farm property to drain into a ditch. In 2015, B built a garage and according to the T Family, filled in a swale. Water began to back up onto the T Family’ farmland. Two years later, the T Family filed this nuisance action.

B counterclaimed, asserting that the T Family’ removal of a stand of trees caused water from the farm to flow onto his property, creating a nuisance.

Trial

After a three-day trial, the jury found that B had created a condition on his property that interfered with the T Family’s ability to use and enjoy their property. The jury returned a verdict in favor of the T Family on their claim for nuisance.  The jury returned a verdict of no cause of action on B’s counterclaim. The trial court was then obligated to fashion an appropriate remedy to abate the nuisance.

Remedy

After considering competing proposals to abate the nuisance, the trial court adopted the recommendations of the T Family’s expert. The trial court’s order directed B to within 90 days, either install a swale, restore his back yard to pre-construction conditions, and plug or remove his drain tiles or pay to have the work done. The swale must be dug to the size and grade recommended by [the T Family’s expert.

After hearing from experts, the trial court crafted a remedy that would abate the nuisance while minimizing B’s costs and preserving his garage. The court did not require him to build a pond in violation of the township’s zoning ordinance, and defense counsel acknowledged that the township would permit B to comply with the court’s order.

Assistance with Neighbor Disputes

If you are facing a residential real estate dispute, seek the advice of an experienced and skilled real estate litigation attorney. When the parties are unable to reach an agreement, Aldrich Legal Services can help resolve disputes in the most efficient and cost-effective manner.

Contact Aldrich Legal Services

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REAL ESTATE 89: RM had not included any language in the deed providing that the property was a joint tenancy with full rights of survivorship, the property instead became a tenancy in common.

RM drafted the deed without seeking counsel and mistakenly believed that, if either she or FK died, the property would fully pass to the surviving tenant. FK’s will provided that if his wife predeceased him—which she did—the personal representative of his estate should sell any residual property that he owned and divide the cash proceeds equally among his surviving children.

FAMILY LAW 83: A trial court can terminate a parent’s rights and permit a stepparent to adopt a child.

A trial court has discretion to terminate a parent’s rights and permit a stepparent to adopt a child when the conditions of MCL 710.51(6) are met. MCL 710.51(6)(b) requires the petitioner to establish that the other parent had the ability to visit, contact, or communicate with the children, and substantially failed or neglected to do so for a period of two years.

PROBATE 53: The trust agreement included an Incontestability Provision.

A settlor’s intent is to be carried out as nearly as possible. Generally, in terrorem clauses are valid and enforceable. However, a provision in a trust that purports to penalize an interested person for contesting the trust or instituting another proceeding relating to the trust shall not be given effect if probable cause exists for instituting a proceeding contesting the trust or another proceeding relating to the trust.

FAMILY LAW 82: Court stated it would terminate the personal protection order (PPO) after the parties present documentation of the initiation of the divorce proceedings.

However, the trial court concluded that these matters should, in fact, be in the province and the jurisdiction of the Family Division and in that respect, having issued a personal protection order, the Court stated it would terminate the personal protection order after the parties present documentation of the initiation of the divorce proceedings.

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