If you have ever received SPAM e-mail, or junk e-mail, from businesses that you have never had an affiliation with, then you may have been subject to unsolicited commercial e-mailing. In Michigan, the Unsolicited Commercial E-mail Protection Act protects against this type of e-mail solicitation by requiring the sender to include certain notices and options for the receiver (you). A few of these are (i) clear statement of advertisement, (ii) valid contact information, and (iii) an option to ‘opt out’. (see MCL 445.2501 et. seq.)

Clear statement of advertisement requires unsolicited commercial e-mails to contain a subject line indicating that they are indeed an advertisement. The Act states that the sender must include “ADV:” as the first four characters of the e-mail’s subject line. This allows you to clearly discern that the e-mail you are receiving is of a commercial basis, and may regard it as “junk”.

Valid contact information must be established, as this allows the receiver to contact the sender regarding any information being distributed. It is required that the sender has a valid toll-free telephone number, e-mail, and return mailing address thus allowing access for the receiver to cancel contact from the sender.

Option to opt out allows the receiver to be removed from any future contact by the sender. The provided means of contact must be at no cost to the receiver, as well as no cost to be removed from their e-mail list. For example, they cannot have a cancellation fee, since you were never asking to receive their information. Additionally, this option must not be hidden in fine print, and must be conspicuous to the receiver.

Be careful! Just because you view an e-mail to be unsolicited commercial “junk”, does not mean it falls under this act. Any time that you voluntarily give your e-mail to a company they are able to send you promotional advertising, and may not need to follow the required guidelines listed above. Due to an existing relationship between you and said business, they are not necessarily bound by this act. If you have ever signed up to receive more information from a company, business, store, etc. then you have established that you have a relationship with that entity, thus all information sent via e-mail would not be considered to be “unsolicited”.

Further, federal law CAN-SPAM (Chapter 103 of 15 U.S.C.) provides individuals and businesses a federal cause of action, and generally preempts state law on this subject matter.

In Michigan, a common clause to see in service and products contracts is one entitled indemnification. Within each indemnity clause are three separate and independent concepts: (1) Indemnify; (2) Hold Harmless; and (3) Defend. Each point conveys certain rights, duties, and obligations to the other party.

For example, a common indemnification clause is similar to:
“Contractor hereby releases and will defend, hold harmless, and indemnify the Company, from and against any allegation or claim based on any loss, arising from any act or omission by Contractor.” Here you see the 3 independent concepts and independent duties.

(3) “Defend” creates a duty to defend (obviously) the Company in a lawsuit, which includes the duty to prepare for and control of the defense. Immediately upon filing and notice of a claim, the Contractor’s duty is triggered. Occasionally it may be wiser to control your own defense, so use this carefully in conjunction with the other clauses.

(2) “Hold Harmless” means that the Company is not liable for the described damages. This essentially means, that the Contractor (the party indemnifying) may not sue the Company (the party being indemnified). Indemnification and hold harmless are closely related ideas and occasionally may mean the same thing (creating a redundancy, but not usually ambiguity).

(1) “Indemnification” means that the Contractor must compensate the Company for losses or damages described within the paragraph. This is independent of other clauses describing damages, such as liquidated damages. This will likely occur after the judgement has been filed against the Company.

Clearly, these clauses direct liability and risk from one party to the other; they should be considered carefully when agreeing to the terms of a contract. Generally, the contract price itself may be heavily dependent upon these clauses. Discuss with your attorney how best to price your fees within a contract containing a clause like the one above.

Traditionally, landlords had no duty to make properties safe for tenants. However, the law has evolved over the last several hundred years to include five exceptions: (1) Latent Defects; (2) Common Areas; (3) Public Use; (4) Furnished Short-Term Residences; and (5) Negligent Repairs (by (a) landlord, or (b) third party). These exceptions generally exist because under modern law, landlords are presumed to have the greatest knowledge and control over the premises.

Latent defects are those dangerous conditions that exist at the time of lease creation that the landlord should know about; and that a tenant could not discover through reasonable means (out of sight out of mind could be reasonable). These defects must be disclosed to the tenant, and failure to disclose those defects will subject the landlord to liability for any injury caused. However landlords generally cannot protect themselves by disclosure for short-term residences that are furnished.

Common areas are controlled by the landlord on behalf of the limited public and other tenants. Any dangerous condition reasonably discoverable by a landlord (out of sight out of mind might not be reasonable) must be made safe. Injuries subject the landlord to liability.

Public use. The landlord is liable for injuries to the public for dangerous conditions when the landlord has reason to believe that the public may be invited on to the property.

Repairs. Landlords are liable for injuries from negligent or ‘deceptively safe’ repairs.

Expansion in this area of law has progressed even beyond these common law rulings, with legislation in Michigan the landlord tenant act creates several duties for both landlords and tenants.

Unfair Competition in Michigan describes the interference, though malice or intention, of another businesses activities. Examples of unfair competition are the induction of one party to breach a contract with another party and, the use of a competitors trade secrets. Breach of contract involves one party exerting some influence towards the goal of causing another party not to enter into a contract or to exit a contract prematurely. Use of trade secrets requires a non-patented advantage unavailable to the public and, the trade secret must be taken in a wrongful manner. Michigan courts have explicitly described how to protect trade secrets in employment severance agreements. It is wise to actively pursue unfair competition in your industry.

Easements.
An easement is a non-possessory interest in land, but a legal right to use land possessed by someone else. The holder of an easement has a limited right to use the tract of land in a specific way. However, the holder does not have a right to possess and enjoy the land. Typically easements allow the laying of utilities or a right of way over land for access to another. Generally the easement is ‘owned’ by the land and not by an individual.

Easements are created or destroyed by by writing either in grant or in reservation on transfer of title, implication where it would be impractical not to allow an easement, or by taking it. Easement by implication is created by operation of law and does not need to be recorded or written.

Easement by taking it (easement by prescription) is less common today than in the past. Like adverse possession of land, it requires (i) open and notorious; (ii) adverse; and, (iii) continuous use for the statutory period.

Adverse Possession.
In Michigan, lawful title may be acquired through adverse possession. Adverse possession was of value in the past, and is of great value and necessity today. In the days of old it specifically kept land from slipping into non-use and rewarded a diligent steward with true ownership.

Today, adverse possession not only protects adjoining property owners who encroach and take for their own necessary use, but also encourages adjoining property owners to be mindful of their own property use. For instance, take any two properties, if owner Aaron needs more space, and the other owner Billy doesn’t; and Billy doesn’t (i) want to sell, (ii) want to allow Aaron access, and (iii) doesn’t stop his Aaron from using the land when Aaron tills the unused land, society will give part of Billy’s land that Aaron has been using (so long as Aaron follows the proper legal steps of adverse possession in Michigan).

Michigan adverse possession requires: (i) actual entry; (ii) exclusive possession; (iii) open and notorious possession; (iv) hostile possession (protect what you are taking); and, (v) continuous possession for the statutory period (and all tolling expired).

Ancient Property — commercial investment property — example study.
In uptown Grand Rapids, Michigan 1920 two vacant lots existed. Phil owned the north lot, Tim owned the south lot. Tim built a several story apartment community housing over 100 individual families, and Phil built a warehouse housing commercial inventory. Resident’s at Tim’s apartment community asked Tim to build a garage for their new automobiles; Tim did so. Phil thought nothing of the garage.

Tim followed an east-west line on what was assumed to be the north boundary (touching Phil’s lot) of his southern lot. Years passed, residents used the garage, Tim passed away, and Phil passed away. The land exchanged hands several times and eventually the southern lot (Tim’s) landed in the hands of Tommy. And the northern lot (Phil’s) landed in Peter’s hands.

In 2010, Tommy approached Brad and asked Brad to purchase the land; Brad agrees. While investigating the survey, Brad’s lender discovers the encroaching the garage.

Result.
There are a number of ways of looking at this problem. Whether it is the boundary line doctrine, or adverse possession, Tommy owns at least the land where the building is encroaching, and Brad’s lender should not fear the wrath of Peter.