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REAL ESTATE 79: Plaintiffs lacked standing to directly enforce the easement.

Defendants are residents of the Subdivision No. 1. Defendants’ lots abut a man-made canal, Channel 1. Plaintiffs are residents of the Park Subdivision, which is located on the other side of Channel 1.

At issue in this case is the extent to which defendants are responsible for maintaining the western seawall of Channel 1, which abuts the five-foot strip along Elm Lane. Plaintiffs allege that defendants’ failure to repair and maintain the western seawall has allowed water to infiltrate the five-foot strip adjacent to Elm Lane, thereby causing erosion and damage to Elm Lane and plaintiffs’ properties.

Easement

The Court determined in a prior case that the developer was the owner of the land beneath Channel 1 and the five-foot strip, but that the defendant homeowners of Subdivision No. 1 had an easement right of way to use the channels for navigational purposes. This Court also addressed who was responsible for maintaining Channel 1, including the seawalls, and held that the defendant homeowners, as the dominant lot owners having an easement right of way to use the channels for navigational purposes, were required to maintain channel one and the sea walls abutting it.

Easement Rights Contractual in Nature

Defendants argued that their easement rights were contractual in nature, and plaintiffs lacked standing to enforce the easement because they were not parties to it. Lastly, defendants submitted that plaintiffs failed to demonstrate that defendants owed them a duty of care independent of any contractual duties under the easement.

Plaintiffs Lacked Standing

The trial court ruled that plaintiffs lacked standing to directly enforce the easement under a contractual theory because they were not parties to the easement. The court noted that it was undisputed that defendants did not own Channel 1 or the western seawall, and that they were granted an easement only for navigational purposes.

Assistance with Real Estate Litigation

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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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The probate court explained that the owners of the account are S and J. When S passes, J becomes the owner of the account. J is the one who had the authority to make the designation. Nowhere in any documents is there a designation by J that SJ be the owner -- or the beneficiary of the account. The designation made by his father was no longer binding because he was no longer the owner at the time J passed away.

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FAMILY LAW 77: Court awarded plaintiff sole legal custody; defendant was unwilling to work with plaintiff.

For joint custody to work, parents must be able to agree with each other on basic issues in child rearing including health care, religion, education, day to day decision making and discipline and they must be willing to cooperate with each other in joint decision making. If two equally capable parents are unable to cooperate and to agree generally concerning important decisions affecting the welfare of their children, the court has no alternative but to determine which parent shall have sole custody of the children.

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