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REAL ESTATE 87: Defendants were required to remove the portion of the home that was outside the timber line.

This case arises out a dispute involving defendants’ construction of a home in a subdivision located in Michigan. Plaintiffs’ family has owned lot 21 since the 1960s. Defendants own lot 22, which is directly north of plaintiffs’ lot. Defendants purchased their lot in 1994, but they did not begin to build a home on the property until the summer of 2019.

Covenants

The subdivision was developed in 1966. As a part of the development process, the developer issued a declaration of covenants to run with the land. The list of covenants included: No buildings shall be constructed closer to the shore than the timber line along Grand Traverse Bay and not closer to Joe Marks Trail than fifty feet.

Violation of Covenants

In 2018, defendants finalized plans to build a home on lot 22. After a survey crew staked the footprint for the new house, plaintiffs sent defendants a letter expressing their concerns about the placement of the house. Specifically, plaintiffs believed that the planned home was too close to the bay, in violation of the covenants.

After construction officially started in July 2019, plaintiffs filed a complaint seeking a preliminary injunction to prohibit defendants from continuing to build their home in its current location. Plaintiffs alleged that defendants were building their new house 70 feet in front of the timber line along Grand Traverse Bay, which was prohibited by the restrictive covenants.

Trial Court

The trial court initially granted the preliminary injunction, stopping construction of the house on lot 22. However, the court agreed to dissolve the injunction, after warning defendants that they continued to build at their own risk.

The trial court held a two-day bench trial, in which the parties presented the testimony of several witnesses, including expert arborists and foresters, and several photo exhibits. The court found that the restrictions, taken as a whole, were clearly in place to create, in part, a uniform western boundary and to preserve lot views, and that the location of the defendants’ home violated both of these clear objectives.

The court sympathized with defendants, but ultimately observed that the lawsuit was filed after the footings for the home were poured and defendants were warned that the court could find the placement of the home violated the covenants. Therefore, the court ruled that defendants were required to remove the portion of the home that was outside the timber line.

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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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