Natural Resources – Water – Riparian Rights
Michigan has always recognized a landowner’s right to reasonably use surface waters immediately adjacent to the landowner’s property. This right is known as riparian rights. Landowners bordering a waterway are considered riparians. Michigan defines riparian law as that is bounded by, or includes therein, a natural watercourse. This definition, particularly the phrase “natural watercourse,” excludes artificial watercourses (canals, drainage and irrigation ditches, flumes, and other man-made waterways) from riparian rights.

A riparian (defined above) is a person who is in possession of riparian real estate, or in some instances, a non-riparian may obtain riparian rights through an easement or license. Michigan law recognizes the following riparian property rights:

•The right to exclusive possession and use of the shore;
•Ownership of the bottomlands of the adjacent waterbody to the middle of the lake;
•Access to navigable waters;
•The right to install a dock out to navigable waters;
•The right to anchor a boat to owner’s bottomland; and,
•The right to use the water for domestic purposes.

Riparian law distinguishes between “natural” uses and “artificial” uses. Natural uses include those that meet the domestic needs of the riparian landowner, including: drinking, washing, and watering gardens or a small livestock herd.

Artificial uses are those which increase comfort or economic benefit that are not essential to existence. Use of water for artificial purposes by riparians must meet two requirements: (1) the use must be only for the benefit of the riparian land; and, (2) the use must be reasonable in relation to the rights of other riparian users. This is known as the reasonable use doctrine.

Riparians with land bordering the Great Lakes do not have all of the above rights. The rights of Great Lakes riparians differs in the following ways. Firstly, the bottomland of the Great Lakes is owned by the state, and held in trust for the public. Secondly, Great Lakes Riparians do not have exclusive use of the entire bank and shore. This is a contentious issue, in Glass v Goeckel, 473 Mich 667, the Michigan Supreme Court decided that there is a servitude for the benefit of the public that extends from the water’s edge of the Great Lakes to the ordinary high water mark (“OHWM”). In this thin strip of land the public is allowed to walk without permission from the riparian.

The OHWM is difficult to ascertain, the Michigan Supreme Court Defined it as:
“[T]he point on the bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic. And where the bank or shore at any particular place is of such a character that is impossible or difficult to ascertain where the point of ordinary high-water mark is, recourse may be had to other places on the bank or shore of the same stream or lake to determine whether a given stage of water is above or below ordinary high-water mark.” Glass v Goeckel, at 691.

The rights of riparians whose lands border navigable waters are limited to the extent that public rights exist in such waters. The public right to navigate a waterway clearly includes the right to use it for transportation and in most cases recreational use. For example: riparians right to build a dock or wharf out can be limited by the public’s use of the waterway; if a riparian’s dock obstructs navigation, the dock can be removed.

Riparians are also subject to reasonable governmental regulations. These regulations may include: (1) what type of boats are permitted on a lake; (2) the minimum frontage required for lake-access real estate; or (3) how many boats may be launched or stored at a single property.

Lakefront property owners should contact their attorney for any questions they may have.

In Michigan, the no-fault act MCL 500.3101 et. seq., creates a system of receiving insurance benefits without requiring proof of fault in an accident. This system benefits insurance companies and individuals in the aggregate, but is detrimental to the faultless individual. Under fault insurance, an injured party may sue to recover their losses and injuries; or, the injured party may choose to use their own insurance to cover losses and injuries (irrespective of severity).

No Fault, acts as a threshold keeping “minor” suits out of litigation. The No-Fault Act prevents personal injury suits unless the loss or injury exceeds the threshold. And to succeed on a suit, the plaintiff must prove a specific level of loss due to the operation of a motor vehicle (MCL 500.3135). Otherwise, the plaintiff is required to seek recovery from his or her own insurance. For example: Where a scar may not be considered a serious injury (Petaja v. Guck, 178 Mich. App. 577), but that muscle damage or other soft tissue injuries might be serious (DiFranco v. Pickard, 427 Mich. 32). To sue, fault of the defendant must be proven.

Insurance
In Michigan to acquire an automobile registration, $20,000 per-person, $40,000 per accident, and $10,000 for property damage insurance is a prerequisite (MCL 500.3009, 500.3131). And unless there is more information, all claims of accident are filed through ones own insurance. A third-party has a way through the No-Fault Act if there has been a death, permanent and serious disfigurement, or a serious impairment of bodily function (and then there must be an actual cause of action); or, if there is a lawfully parked car.

An individual may recover only once, and generally may not sue for benefits all ready received. Further, social security and worker’s compensation may be calculated by the insurance company to avoid over paying on a claim.

Attorney Fees Recoverable when a no-fault insurance company refuses to pay benefits or delays in paying benefits, attorney fees may be recoverable. This acts as a motivator to encourage only legitimate individual claims against insurance companies and encourages insurance companies not to drag its feet.

Motorcycles Exempt
Motorcycles, under MCL 500.3101 having only two wheels, are not required to purchase no-fault insurance. Personal liability insurance on the other hand, for those motorcycles using highways, is required (off road vehicles exempt). Additionally, out-of-state cars, parked vehicles, and farm tractors are also excluded.

People injured in Michigan car accidents have less than three-years to contact their attorney before their claim will be barred. Those Michigan residents driving out of state must rely on out of state law, unless they are “lucky” enough to hit or get hit, by another Michigan driver.

In exchange for a loan, a creditor (usually a bank), known as the mortgagee, is given (as security) a mortgage by the debtor, known as the mortgagor. The mortgage provides the mortgagee rights in the mortgaged property if the mortgagor defaults on the loan.

Michigan, like most states, is a Lien Theory state. Lien theory means title remains with the mortgagor, and the mortgagee is provided a lien on the property. A lien is all that a mortgagee needs to assert its rights. This is converse to Title Theory, whereby, title in fact is held by the mortgagee and the mortgagor holds the benefit of the title.

General Mortgage Requirements
A mortgage and all subsequent modifications, releases, or discharges must be in writing. The mortgage must contain several specific things including the name of the creditor (mortgagee) and debtor (mortgagor), an adequate description of the property, and several other provisions. Ideally, the mortgage must be recorded with the county register of deeds—although—recording is not strictly required.

Occasionally, a creditor and debtor whom would normally create a mortgage attempt to secure the loan by an absolute deed (rather than a mortgage deed), in theory avoiding foreclosure procedure. Upon redemption, the would be mortgagee transfers the deed back to the would be mortgagor. Where there is a default (failure to perform the obligations) the mortgagee retains title. However, an equitable mortgage is created if the intent of the parties was to only secure the debt (defeating the purpose of the attempted avoidance).

Foreclosure and Default by Mortgagor
Default can take on several forms and it is not strictly defined. Therefore, if there is a failure to pay taxes, or perhaps even waste, let alone nonpayment, a default could be triggered. Allowing the creditor (mortgagee) to foreclose on the mortgage. Michigan has two procedures of foreclosure, the first and quickest is foreclosure by advertisement, and the second and most secure is foreclosure by judicial action. Michigan forbids any immediate transfer of title on default (as alluded to in the previous paragraph).

Generally, to foreclose by advertisement in Michigan, (1) the actual mortgage document must grant the power of sale, (2) the mortgage must be recorded with the register of deeds, (3) notification must be published for four weeks, and (4) notice must be posted to the property. The mortgagor has a right to redeem the property under equity prior to the sale. After the sale, the mortgagor has a right to redeem the property under law, typically 6 months.

A foreclosure by judicial action in Michigan is available on all mortgages. It requires typical judicial proceedings of filing a complaint, and the mortgagee must show they are entitled to a deficiency judgment or foreclosure (summary proceedings to follow). Judicial foreclosures must provide at least 6 months before a sale may be allowed.

Other Mortgages that are foreclosed, Creditors rights
In Michigan, a foreclosure sale does its best to clean the title to all recordings after the mortgage was created. Foreclosure sales will not clean title to recordings before the foreclosed mortgage was created. Meaning, if a mortgage created January 2016 forecloses properly, a mortgage created February 2016 will be extinguished (there are steps to preserve junior rights). If a mortgage created January 2015 on that same property, the January 2016 foreclosure will not extinguish the January 2015 interest.

That is why, foreclosing on a mortgage and purchasing a foreclosed property, requires such diligence. Purchasing a property subject to a mortgage is not as ideal as purchasing a property extinguishing a mortgage. Getting your attorney involved early is the best step a creditor or debtor may take.

Mortgage Electronic Registration Systems (MERS)
In Residential Funding Co., L.L.C. v. Saurman, 490 Mich. 909 (2011), the Michigan Supreme Court cited MCL 600.3204(1)(d), and stated Mortgage Electronic Registration Systems is an owner of interest in indebtedness secured by the mortgage at foreclosure proceedings. This clarified the standing of a party foreclosing on a mortgage must have. Thus, even if a party does not hold an interest in the mortgage debt, that party may foreclose. This is contrary to several other state rulings in Maine, Kansas, and Arkansas.

In Michigan security deposits are regulated by the Landlord and Tenant Relationships Act. (Act 348 of 1972) This act regulates landlord and tenant relationships and rental agreements. Specifically sections 554.602 to 554.616 of the Michigan Compiled Laws regulate security deposits. It is important that landlords know and comply with these laws to protect their interests.

The Act allows Landlords to require security deposits that do not exceed 1 ½ month’s rent. (MCL 554.603)

A landlord must notify the tenant of the security deposit no later than 14 days from the date the tenant assumes possession. This notice must be written and include the landlords name, address and the following statement printed in 12-point boldface font, which is at least 4 points larger than the body of the notice or lease agreement:

“You must notify the landlord in writing within 4 days after you move of a forwarding address where you can be reached and where you will receive mail; otherwise your landlord shall be relieved of sending you an itemized list of damages and the penalties adherent to that failure.” (MCL 554.603)

The landlord is required to make use of inventory checklists both at the beginning and end of the tenant’s occupancy for each rental unit which detail the condition of the rental unit for which the security deposit is required. (MCL 554.608)

Once the landlord receives the security deposit it is considered the lawful property of the tenant until the landlord establishes a right to deposit it. (MCL 554.605)

If the premises is damaged, the landlord shall mail to the tenant, within 30 days after termination of occupancy, an itemized list of damages claimed for which the security deposit may be used, this list should include the estimated cost of repairs and the amount of the damage assessed to the tenant. The notice of damages shall include the following statement in 12-point boldface type, which shall be at least 4 points larger than the body of the notice:

“You must respond to this notice by mail within 7 days after receipt of same, otherwise you will forfeit the amount claimed for damages.” (MCL 554.609)

Not complying with the above notice of damages requirement within 30 days constitutes the Landlord waiving his rights to the security deposit. If this occurs the landlord must immediately remit the full security deposit to the tenant. (MCL 554.610)

More information can be found at the Michigan Legislature website: http://www.legislature.mi.gov/documents/mcl/pdf/mcl-act-348-of-1972.pdf

On Wednesday June 25, 2014 the U.S. Supreme Court ruled that law enforcement officers generally must obtain a warrant before they can search the cellphone of an arrested suspect. Ruling on two cases from California and Massachusetts, the justices balanced the right to privacy versus the need to investigate crimes and the protect law enforcement officers. In a unanimous 9-0 ruling the right to privacy prevailed.

View the Opinion Riley v. California here: http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf

In the Opinion, Chief Justice Roberts wrote, “Modern cell Phones, as a category, implicate privacy concerns far beyond those implicated by a search of a cigarette pack, a wallet or a purse.” Roberts further stated that police can still examine “the physical aspects of the phone to ensure that it will not be used as a weapon.” But once the phone is secured, “data on the phone can endanger no one.”

Privacy rights are deeply rooted in history and tradition and expressly stated in the 4th Amendment. In comparing cell phones to items historically protected by privacy rights Roberts stated, “Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick, supra, rather than a container the size of the cigarette package in Robinson.”

This ruling greatly increases privacy rights and will limit law enforcement agencies’ policing tools.