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REAL ESTATE 82: Plaintiff filed quiet title asserting that it could satisfy the elements of adverse possession.

This case concerns a dispute over a 193-square-foot parcel, referred to as the “gap parcel,” located in Michigan, between two pieces of property owned, or formerly owned, by plaintiff, and abutting property owned by defendant.

There is no dispute that defendant owns the portion of Lot 172 north of plaintiff’s portion of Lot 172, and the portion of Lot 173 west of plaintiff’s portion of Lot 172. In 2000, defendant sent a letter to plaintiff requesting the removal of the stones-gravel that he had placed on his property. Defendant also requested replacement of the fence that plaintiff took down on his property. There appears is no dispute that neither of these demands were met.

Adverse Possession

Plaintiff filed a complaint seeking to quiet title to the gap parcel in its favor, asserting that it could satisfy the elements of adverse possession.

A party claiming adverse possession must show clear and cogent proof of possession that is actual, continuous, open, notorious, exclusive, hostile, and uninterrupted for the relevant statutory period. The statutory period is 15 years. Regarding the “exclusive” requirement, an adverse possessor must have the intention of holding the property as his own to the exclusion of all others.

Bench Trial

Defendant denied these allegations and a bench trial was held. Following testimony, the trial court found that plaintiff had established all the elements of an adverse-possession claim. Explaining its findings, the trial court twice asserted that there was no credible evidence presented demonstrating that plaintiff’s possession of the property was interrupted or to dispute plaintiff’s arguments regarding any of the elements of adverse possession.

Defendant asserts that he ousted plaintiff from the gap parcel in 2000 when he told plaintiff to cease use of the land and sent a letter. Defendant also asserts there was uncontroverted testimony from several witnesses and [defendant] himself demonstrating that plaintiff abandoned any adverse interest when defendant moved in 2005. However, the evidence at trial demonstrated that no action was ever taken to comply with the demands in the 2000 letter, and that plaintiff continued using the gap parcel well beyond the July 2000 letter and even beyond 2005 when defendant moved headquarters.

Clear and cogent evidence established that plaintiff’s possession of the gap parcel was open, notorious, and hostile. Most critically, defendant admitted at trial that plaintiff’s use of the gap parcel was against his interest in the gap parcel, and the July 2000 letter demonstrates that defendant had actual knowledge of plaintiff’s use of the gap parcel and sought to end its adverse use of the gap parcel.

The trial court entered a judgment quieting title to the gap parcel in plaintiff’s favor.

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FAMILY LAW 88: The trial court found that the children did not have an established custodial environment with defendant because, before the separation, he did not have a large role in the children’s lives.

The trial court credited plaintiff’s testimony that, before the parties’ separation, defendant spent minimal time helping to care for the children, so its finding that the children would not have looked to defendant for guidance, discipline, the necessities of life, and parental comfort during that time was not against the great weight of the evidence.

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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