Real Property

Question 1

Adverse Possession

Answer 1

OCEAN

Open and notorious
Continuous and uninterrupted (periodic entry is insufficient unless that periodic entry comports with the standard use of the property in question)
Exclusive 
Actual and physical 
Non-permissive and hostile 

Statutory period for adverse possession of real property is 15 years.

Question 2

Tacking

Answer 2

Consecutive possessory periods may be added together to satisfy Michigan’s 15 year statutory requirement.

Tacking requires that the consecutive possessions be the product of privity.

Privity as it concerns the disputed piece of land should be mentioned on the face of the conveyance instrument if any.

Question 3

Prescriptive easement

Answer 3

OCEAN minus E

Open and Notorious
Continuous and uninterrupted
Actual and physical
Non-permissive and hostile

Question 4

Mortgage Modifications

Answer 4

Senior mortgagees that form an agreement to modify the mortgage/obligation will subordinate the senior interest only to the extent that it prejudices a junior mortgagee’s interest. Otherwise, the senior mortgagee’s interest remains superior when modified.

Obligatory loans, even if issued by a first in time mortgagee after a second in time mortgagee has recorded, do NOT modify the first in time mortgagee’s priority status.

Discretionary/Optional loans issued by a first in time mortgagee who has notice of the second in time mortgagee subordinate that first mortgagee’s interest to the second.

Question 5

Profit

Answer 5

Nonpossessory right to enter another’s land and remove a specific natural resource. It is a property right, and is therefore subject to the recording act.

Land cannot be encumbered by a profit that is not recorded separately or on a deed unless there is sufficient notice of the encumbrance.

Question 6

Prior Nonconforming Use

Answer 6

Prior use is permitted to continue if a zoning ordinance is established that makes the use impermissible. The use is then known as a prior nonconforming use. A jurisdiction may require the owner to properly file notice of the prior nonconforming use, and may hold that filing requirement to strict compliance.

The use may continue. The owner may transfer that use.

Abandonment of the nonconforming use means that the use can no longer continue, and all future use must conform (Majority rule requires that abandonment have an INTENT to cease use, while minority looks only to time, regardless of intent).

Switching from the prior nonconforming use to another, new nonconforming use after the ordinance is not permitted.

Question 7

Property RIght to Support

Answer 7

A landowner has the right to lateral support from adjoining land.

Strict liability is imposed on landowners who excavate their own UNDEVELOPED land.

Strict liability is imposed on landowners who excavate their own DEVELOPED land ONLY to the extent that the damage would have happened if the land were undeveloped. Any damage that arises from the fact that the land is already developed is regular negligence.